As the walls start to close in for the plaintiffs’ bar on the definition of an “automatic telephone dialing system” (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”), plaintiffs’ attorneys continue to rely on their favorite go-to expert, Randall Snyder. Numerous courts have already excluded Snyder’s prior supposed expert opinions. But the recent decision in Hagood v. Portfolio Recovery Assocs., LLC, No. 3:18-CV-1510, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. March 19, 2020) illustrates how the plaintiffs’ bar, and Snyder, are attempting to change their theories to skirt growing scrutiny from courts.
The defendant in Hagood, Portfolio Recovery Associates (“PRA”), used the Avaya Proactive Contact System, a predictive dialer, to contact the plaintiff. Hagood was pending in the Seventh Circuit, where Gadelhak now reigns supreme. As a result, the plaintiff faced an uphill battle in proving that Avaya was capable of generating random or sequential telephone numbers because, simply put, the dialer doesn’t have that capability; it can only call pre-set campaign lists. Enter Randy Snyder.
Snyder first claimed that the Avaya dialer has the ability to generate sequential telephone numbers for dialing because “Avaya can take a preexisting calling list of telephone numbers, re-sort those telephone numbers, and generate a new ‘sequence’ of telephone numbers based on that re-sorted list.” This aspect of Snyder’s opinion isn’t new and he’s offered it before. And like the courts before, the court in Hagood excluded Snyder’s testimony as not reliable. The court recognized that the “sequential number generator” requirement of the ATDS definition required the ability to generate independent blocks of sequential numbers for dialing, and not merely “re-sort” preexisting lists.
The newer wrinkle to Snyder’s opinion is that the Avaya dialer operates on a Windows platform, and that Windows itself has the ability to generate random numbers. According to Snyder, that means that the Avaya dialer had the capability to generate random telephone numbers (though conspicuously, he never says for dialing). The district court made short work of this nonsense argument, noting that “the same could potentially be said for any dialing system hosted on a computer with a Windows operating system,” and concluded that Snyder’s opinion was overly broad and generalized. And because the Avaya dialer was not capable of generating random or sequential telephone numbers for dialing, the district court entered summary judgment in favor of PRA.
The district court got it 100% right in Hagood. However, TCPA defendants should take note. Snyder’s opinion in Hagood was before the Seventh and Eleventh Circuits recent decisions in Gadelhak and Glasser. Since then, Snyder has already started to refine his theory again beyond Windows, now claiming that even when dialing system themselves cannot generate random telephone numbers for dialing, underlying platforms that the systems may rely upon (e.g., Microsoft SQL) can.
While the form of what claimed experts like Snyder testify to is changing and getting refined, the lack of substance is still the same. Essentially any operating system, underlying database, or programming language on which such systems are built have a random number function in their programming language. That does not mean the dialing equipment has the capacity to actually generate random telephone numbers for dialing. Decisions like Hagood serve as a good flagship for defense moving forward, but TCPA defendants must ensure they invest appropriate resources to defend against the shifting theories of liability under the TCPA.
