TCPA class action dismissed based on SCOTUS' narrowed definition of ATDS

In one of the first TCPA cases to be decided in the wake of the Supreme Court's 9-0 ruling in Facebook, Inc. v. Duguid, a U.S. federal district judge in Michigan has granted the defendant's motion to dismiss a class action suit involving alleged calls made to cell phones without consent. In holding for defendant Ally Financial, Inc., the Michigan judge wrote that the Supreme Court’s April 1st decision in Facebook was controlling over the plaintiff’s claims and dismissed the complaint with prejudice for failure to state a claim under the TCPA. 

In this case, the defendant used an auto-dialer system to call the cell phones of family and acquaintances of delinquent borrowers. However, even though the defendant's auto-dialer system had the capacity to generate random or sequential phone numbers, in this case the calls were targeted at specific, known individuals, rather than being random-fired. This case (Barry v. Ally Financial, Inc.) may be a preview of what to expect in post-Facebook TCPA cases that hinge on the question of whether an auto-dialer was used to send text messages or phone calls. 

While the early signs are favorable to defendants, it remains important for companies to closely track legal developments in this rapidly evolving area before undertaking text messaging and/or telephone marketing activities.