TCPA Litigation Update — Taking Stock of Facebook at the Pleadings Stage

The U.S. District Court for the District of Colorado appears to have beat the rest of the judiciary to the post-Facebook pleading stage punch in the form of a recommendation to allow an ATDS claim past the pleadings in Montanez v. Future Vision Brank Bank, LLC.[1] The plaintiff alleged receiving “numerous telemarketing text messages” she claims were sent with “a combination of hardware and software systems” that had “the capacity to store telephone numbers using a random or sequential generator, and to dial such numbers from a list without human intervention.”[2] None of the messages “were addressed specifically” to the plaintiff.[3] Though the defendant shot back, arguing the plaintiff’s allegations were conclusory, the claim survived (for now). Recognizing the shift in the post-Facebook[4] TCPA landscape, the court noted: “it is critical that a random or sequential number generator be utilized to constitute an ATDS.”[5] The court previewed Facebook’s import at summary judgment but concluded that at the pleading stage, the allegations in this particular case sufficed.[6] Given that this was a U.S. magistrate judge’s recommendation, we anticipate the defendant will submit written objections for reconsideration. Though Montanez has recommended that this claim survive the pleading stage, defendants challenging ATDS allegations are wise to keep Facebook’s procedural posture in mind as an arrow…
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