The U.S. Supreme Court’s long-awaited decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021), affirmatively answered a question that had divided courts for years: Did the Telephone Consumer Protection Act’s (TCPA) definition of “automatic telephone dialing system” (ATDS) require random or sequential number generation? But it created a new question: How would lower courts implement that decision? A number of courts have now provided their answer, with those cases summarized briefly below.

• Montanez v. Future Vision Brain Bank LLC, No. 20-cv-02959 (D. Colo. Apr. 29, 2021): Denied the defendant’s motion to dismiss and held that whether the calling system used a random or sequential number generator was an issue for summary judgment.
• Bell v. Portfolio Recovery Assocs., Case No. 5:18-cv-00243 (W.D. Tex. Apr. 13, 2021): Reopened discovery to allow limited additional discovery regarding the extent to which the telephony system at issue used a random or sequential number generator.
• McEwen v. Nat’l Rifle Ass’n of America, No. 2:20-cv-00153 (D. Me. Apr. 14, 2021): Noted in dicta that while the defendant had not moved to dismiss the TCPA claims based on ATDS use, the plaintiff had only alleged automation, not use of a random or sequential generator, and therefore may not have adequately stated its ATDS claims.
• Gunn v. Prospects DM LLC, No. 4:19-cv-3129 (E.D. Mo. Apr. 19, 2021): Denied a motion to stay, pending the Facebook ruling as moot and denied a motion to dismiss under
• Smith v. Liberty Mutual Ins. Co., No. 1:20-cv-11583 (D. Mass. Apr. 22, 2021): Granted a motion to dismiss without reaching the ATDS question because the plaintiff had not alleged facts sufficient to support a vicarious liability theory.
• Callier v. Greensky, Inc., No. EP-20-CV-00304 (W.D. Tex. May 10, 2021): Denied motion to dismiss pro se TCPA claims because the plaintiff adequately pled automation and reliance on a sequential number generator to place calls, though not to produce the call list.
• Barton v. Temescal Wellness LLC, No. 20-40114 (D. Mass. May 26, 2021): Denied a motion to dismiss because the Facebook decision did not change the fact that the text messages sent to cell phone numbers on the national do not call registry fell within the ambit of the TCPA.
• Camunas v. National Republican Senatorial Committee, No. 21-1005 (E.D. Pa. May 26, 2021): Granted the defendant’s motion to dismiss because the plaintiff had not alleged sufficient facts to show that his number had not been dialed intentionally, though automatically, and allowed the plaintiff to amend his complaint.
• Timms v. USAA Fed’l Sav. Bank, No. 3:18-cv-01495 (D.S.C. June 9, 2021): Granted the defendant’s motion for summary judgment, holding that a system must store or produce numbers using a random or sequential number generator, not merely dial calls from a preset list, cabining Footnote 7.
• Carl v. First Nat’l Bank of Omaha, No. 2:19-cv-00504 (D. Me. June 15, 2021): Denied motion for summary judgment and stated that there was a trial-worthy question as to whether the telephony system had capacity to store a number using a random or sequential generator and used that generator.
• Atkinson v. Pro Custom Solar LCC, No. SA-21-CV-178 (W.D. Tex. June 16, 2021): Denied the defendant’s motion to dismiss and held that pleading use of a dialing system with present capacity to dial numbers in a random or sequential fashion was sufficient to present a question of fact for summary judgment.
• Watts v. Emergency Twenty Four, Inc., No. 20-cv-1820 (N.D. Ill. June 21, 2021): Granted the defendant’s motion to dismiss without prejudice because the plaintiff had not adequately pled any supporting facts regarding use of a random or sequential number generator, and high call volume alone did not suffice to plausibly plead use of an ATDS.
• Hufnus v. DoNotPay, Inc., No. 3:20-cv-08701 (June 24, 2021): Granted the defendant’s motion to dismiss and held that the platform chatbots were not autodialers because they only contacted numbers provided by consumers, not identified or obtained in a random or sequential fashion, cabining Footnote 7.
• Barnett v. Bank of America, N.A., No. (W.D.N.C. July 1, 2021): Granted the defendant’s motion for summary judgment and found that the Facebook decision requires a plaintiff to demonstrate that a defendant’s telephone system generates random or sequential telephone numbers to be dialed, rather than dialing from a pre-existing, nonrandom list.
• Perrong v. MLA International, Inc., No. 6:20-cv-01606 (M.D. Fla. July 2, 2021): Granted the defendant’s motion to dismiss with leave to amend, following Camunas.
• Gross v. GG Homes, Inc., No. 3:32-cv-00271 (S.D. Cal. July 8, 2021): Denied motion to dismiss and held that while the court could not determine from the pleadings whether the dialer in question stored or produced telephone numbers using a random or sequential number generator, the factual details which would help answer that question were not required at the pleading stage.
• Barry v. Ally Financial, Inc., No. 20-12378 (July 13, 2021): Granted the defendant’s motion to dismiss and held the Facebook decision requires telephone equipment to use, not merely have the capacity to use, a random or sequential number generator to qualify as an ATDS, and that Footnote 7 is dicta.
• Miles v. Medicredit, Inc., No. 4:20-cv-01186 (E.D. Mo. July 14, 2021): Denied motion to dismiss, following Gross.
• Franco v. Alorica, Inc., No. 2:20-cv-05035 (C.D. Cal. July 27, 2021): Granted the defendant’s motion for judgment on the pleadings, following Hufnus.
• Jance v. Homerun Offer LLC, No. CV-20-00482 (D. Ariz. July 30, 2021): Denied motion to dismiss and held the plaintiff adequately alleged facts plausibly indicating use of a random or sequential number generator.
• Guglielmo v. CVS Pharmacy, Inc., No. 3:20-cv-1560 (D. Conn. Aug. 2, 2021): Granted partial motion to dismiss relating to TCPA claims and held that the plaintiff had not adequately pled used of a random or sequential number generator.
• Borden v. eFinancial LLC, No. C-19-1430 (W.D. Wash. Aug. 13, 2021): Granted motion to dismiss and held that use of a random or sequential number generator to order calls did not transform a system into an ATDS, particularly where the plaintiff had originally provided his number to the defendant.
• Edwards v. Alorica, Inc., No. 8:19-cv-02124 (C.D. Cal. Aug. 30, 2021): Granted the defendant’s unopposed motion for judgment on the pleadings because the plaintiff had not alleged that the telephony system created her number randomly or sequentially.
• Grome v. USAA Savings Bank, No. 4:19-cv-3080 (D. Neb. Aug. 31, 2021): Granted the defendant’s motion for summary judgment and held that a telephony system must have the present capacity to use a random or sequential number generator to generate phone numbers, and the possibility of reprogramming a system to do so did not suffice to make it an ATDS.
• Tehrani v. Joie de Vivre Hospitality, 19-cv-08168 (N.D. Cal. Aug. 31, 2021): Denied the plaintiff’s motion for leave to file a third amended complaint, rejecting the Ninth Circuit’s pre-Facebook approach to ATDS determinations, following Hufnus, Watts, Barry, Borden, and Timms, and holding that Facebook required use of a random or sequential number generator to create telephone numbers.
• LaGuardia v. Designer Brands, Inc., No. 2:20-cv-2311 (S.D. Ohio Sept. 9, 2021): Granted the defendant’s motion for judgment as a matter of law, following Tehrani.
• Jovanovic v. SRP Investments LLC, CV-21-00393 (D. Ariz. Sept. 15, 2021): Dismissed the plaintiff’s amended complaint with prejudice and held that the plaintiff failed to adequately allege use of an ATDS where the facts, inclusion of an opt-out text mechanism, and lack of a preexisting business relationship were merely consistent with but did not affirmatively support the inference of ATDS use and other facts, such as personalization of the messages undermined an ATDS inference.
• Marshall v. Grubhub, Inc., 19-cv-3718 (N.D. Ill. Sept. 27, 2021): Denied motion to dismiss without reaching the question of whether the plaintiff had adequately pled use of an ATDS because the plaintiff had sufficiently alleged a TCPA violation based on use of a prerecorded voice.
• Poonja v. Kelly Services, Inc., No. 20-cv-4388 (N.D. Ill. Sept. 29, 2021): Denied motion to dismiss and held the plaintiff’s allegations of a generic message sent by a toll-free number with automated reply functions were sufficient to survive pleading stage.
• Douglas v. TD Bank USA, N.A., No. 3:20-cv-395 (D. Or. Oct. 4, 2021): Denied a motion for sanctions which argued that the plaintiff had no reasonable basis for his ATDS claim and held that while the arguments were better suited to a motion to dismiss or motion for summary judgment, the plaintiff could reasonably rely on a “telltale pause” to infer use of a predictive dialer, which could include an ATDS.
• Smith v. Direct Building Supplies LLC, No. 20-3583 (E.D. Pa. Oct. 7, 2021): Granted a motion to dismiss without prejudice and held that while the plaintiff had not alleged adequate facts regarding the identity of the caller, allegations of a pause and lack of a prior business relationship were sufficient to support an ATDS inference.