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9th Circuit Court Finds Certain Calls Not Solicitation Under TCPA – The National Law Review


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Big news (both good and bad) out of Arizona this past week as the District Court: reinforced a Plaintiff’s relatively low pleading standard in alleging whether a Defendant used an ATDS to call Plaintiff, but also found that telephone solicitation as defined under the TCPA does not include offers to buy something from the recipient of the call.

In Jance v. Homerun Offer LLC, No. CV-20-00482-TUC-JGZ, 2021 U.S. Dist. LEXIS 143145 (D. Ariz. July 29, 2021), the Defendants, Homerun Offer LLC, and All Star Investments, brought a Motion to Dismiss on two notable grounds: (1) that Plaintiff did not allege facts sufficient to show that Defendants used an ATDS to call Plaintiff, and (2) Plaintiff failed to state a claim for solicitation or telemarketing under § 227(c) as Plaintiff did not establish that the calls constituted telephone solicitation or telemarketing under the TCPA.  The Court denied the Motion as to the first part, and granted as to the second.

So how did this happen?  As to Defendants’ first argument on the Motion to Dismiss, the Court disagreed that Plaintiff failed to meet his pleading standard, finding that, following Duguid, Plaintiff had plausibly pled that Defendants used an ATDS to place calls to Plaintiff.  In this instance, Plaintiff alleged that the phone numbers from which he received the unsolicited calls were attributed to VoIP and misleading caller ID information; that when he answered the calls, there was a “brief hesitation of several seconds” before the caller began speaking, and that the calls were generically formatted and scripted; and they never referenced the Plaintiff directly.  The Court also noted that Plaintiff alleged he had no business relationship with Defendants, did not give his contact information, and did not consent to be contacted. Looking at all these facts, the Court found it was plausible that Defendants used an ATDS to call Plaintiff, and Plaintiff’s Complaint survived the Motion to Dismiss on these grounds. This is because, at the pleading stage, a plaintiff does not need to show that it was more likely than not that the defendant used an ATDS to call plaintiff, but merely needs to show that it was plausible that the defendant used an ATDS to make the calls – and the Court found that plausibility standard was met.

And now to the good news— the Court went on to dismiss a Section 227(c) complaint against one of the Defendants, All Star Investments, because Defendants argued that Plaintiff failed to establish that the calls he received constituted telephone solicitation or telemarketing as defined by the TCPA.  In his Complaint, Plaintiff claimed that the calls he received from Defendants all contained “a generic and cursory inquiry” into purchasing his house.  Noting that “telemarketing” under the TCPA is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services” being offered, the Court found that this definition does not encompass a scenario in which the caller makes an offer to purchase something from the recipient of the call. Because the Plaintiff alleged that the purpose of the calls was to purchase his home and not to induce him to make a purchase, Plaintiff failed to state a claim under § 227(c), and the claim was denied without leave to amend.  Good stuff.

© Copyright 2021 Squire Patton Boggs (US) LLP
National Law Review, Volume XI, Number 215

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