Crushing Victory: Court finds Aspect/ALM Not an ATDS– Rejects “Capacity” Argument (But There’s a Big “FN7” Wrinkle Here)

USAA is crushing it. And Aspect is on a roll.

The duo already
combined for what was one of the best Automatic Telephone Dialing Systems (ATDS) decision to date in Timms, 
but their latest win is
even better.

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How about the
first true victory for a predictive dialer post-Facebook on
full evidence and overcoming the force of a Snyder expert report, a well-made Footnote 7 (FN7) argument and a capacity
challenge?

(Isn’t it funny
how TCPAWorld denizens know exactly what
my rhetorical question signifies and everyone else thinks I’m speaking in code.
hahaha)

But there’s a
really important nuance to this case– USAA’s big win could be a big LOSS for
you, if you’re not careful.

Here we go.

In Grome v. Usaa Sav. Bank4:19-CV-3080,
2021 U.S. Dist. LEXIS 164255 (D. Ne. August 31, 2021) the Plaintiff alleged
USAA made unwanted calls to her cell phone to collect a credit card debt.

USAA moved for
summary judgment arguing that the system it used–the popular Aspect UIP with
ALM–was not an ATDS post-Facebook since
it did not use a Random and Sequential Number generator (R&SNG).

The Plaintiff
countered with an expert report by Randall Snyder–amazing he’s still around,
although he probably thinks the same thing about me–pointing out that the SQL
environment used by USAA can, in fact, generate random numbers. Plaintiff also
argued that the sequence of dialing is what matters–not whether phone numbers
are generated randomly–and argued that the “capacity” of the system is critical–not
how specific calls were placed.

In other words,
this was the grand enchilada for Aspect and USAA. And they ate the whole thing.
With green sauce.

First, the Court
found that the whole “SQL can generate numbers” thing was nonsense.

It’s undisputed that USAA Aspect UIP did
not use those commands.

And that’s about
the end of the needed analysis in the Court’s view.

Next, the Court
actually accepted the Plaintiff’s FN7 argument–really
important to catch this nuance folks–
but found that even though a
system CAN be an ATDS if it uses an R&SNG to determine dialing sequence
USAA’s system did not do that: “it is undisputed that the Aspect UIP was not
using a random number generator to determine the order in which to pick phone
numbers.”

See that
critical finding? Plaintiff apparently made a FN7 argument–to a willing
listener–but couldn’t see the issue through with evidence that USAA was
actually using a R&SNG to determine dialing sequence. So this case is different from Hufnus
–that
case held that only randomly generated numbers trip FN7–and don’t let anyone
tell you otherwise.

Rather than
focus on FN7 paydirt, Plaintiff retreated to the common argument we saw before Facebook. You can force feed random
numbers into Aspect. So it must be an ATDS.

*Yawn*

The Court had no
interest in this garbage argument: “[t]he Court is unwilling to adopt such an
expansive view of the statutory definition of the autodialer.”

To support its
interpretation of ATDS the Court took the “capacity” issue head on and held
that only present configured capacity
matters– not future capacity. So while Plaintiff argued (for some reason) that
the system could be configured to force generate random numbers to be dialed
the Court took a common sense view–USAA was not doing anything of the sort, so
it was not using an ATDS.

Again this is a
huge and great victory for Aspect and USAA but PLEASE PLEASE PLEASE do not miss
the FN7 angle here. This is the first case that actually seemingly accepts the
Plaintiff bar’s viewpoint on FN7. The Plaintiff here just didn’t see it through
and focused on the goofy “I can feed random numbers into the dialer” angle
instead. Had they come with evidence directly on dialing
sequence 
this case might have had a different outcome. So be
cautious, even while raising a glass of champagne in USAA/Aspect’s honor.

Also keep in
mind that different courts may take a different view of “capacity.” This case
was out of Nebraska. Not sure a court in California or Washington would come to
the same view. Again, be cautious. 

We’ll keep an
eye on this.

Crushing Victory: Court finds Aspect/ALM Not an ATDS– Rejects “Capacity” Argument (But There’s a Big “FN7” Wrinkle Here)
http://www.insidearm.com/news/00047684-crushing-victory-court-finds-aspectalm-no/
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