The U.S. Supreme Court’s long-awaited decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021), answered in the affirmative 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 also created a new question: How would lower courts implement that decision? A number of courts now have provided their answer, and those cases are summarized briefly below.

• Montanez v. Future Vision Brain Bank LLC, No. 20-cv-02959 (D. Colo. Apr. 29, 2021): Denying the defendant’s motion to dismiss and holding 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): Reopening discovery to allow limited additional discovery regarding the extent to which the telephony system at issue used a random or sequential number generator.
• Gunn v. Prospects DM LLC, No. 4:19-cv-3129 (E.D. Mo. Apr. 19, 2021): Denying a motion to stay pending the Facebook ruling as moot and denying a motion to dismiss under
• Smith v. Liberty Mutual Ins. Co., No. 1:20-cv-11583 (D. Mass. Apr. 22, 2021): Granting 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): Denying 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): Denying 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 TCPA’s ambit.
• Camunas v. National Republican Senatorial Committee, No. 21-1005 (E.D. Pa. May 26, 2021): Granting 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 allowing the plaintiff to amend his complaint.
• Timms v. USAA Fed’l Sav. Bank, No. 3:18-cv-01495 (D.S.C. June 9, 2021): Granting 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, and cabining Footnote 7.
• Carl v. First Nat’l Bank of Omaha, No. 2:19-cv-00504 (D. Me. June 15, 2021): Denying summary judgment motion and stating 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): Denying the defendant’s motion to dismiss and holding 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): Granting 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): Granting the defendant’s motion to dismiss and holding 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, and cabining Footnote 7.
• Barnett v. Bank of America, N.A., No. (W.D.N.C. July 1, 2021): Granting the defendant’s motion for summary judgment and finding 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): Granting the defendant’s motion to dismiss, granting leave to amend, and following Camunas.
• Gross v. GG Homes, Inc., No. 3:32-cv-00271 (S.D. Cal. July 8, 2021): Denying motion to dismiss and holding 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 that would help answer that question were not required at the pleading stage.
• Barry v. Ally Financial, Inc., No. 20-12378 (July 13, 2021): Granting the defendant’s motion to dismiss and holding 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 Footnote 7 is dicta.
• Miles v. Medicredit, Inc., No. 4:20-cv-01186 (E.D. Mo. July 14, 2021): Denying motion to dismiss and following Gross.
• Franco v. Alorica Inc., No. 2:20-cv-05035 (C.D. Cal. July 27, 2021): Granting the defendant’s motion for judgment on the pleadings and following Hufnus.
• Jance v. Homerun Offer LLC, No. CV-20-00482 (D. Ariz. July 30, 2021): Denying motion to dismiss and holding 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): Granting partial motion to dismiss on TCPA claims and holding that the plaintiff had not adequately pled use of a random or sequential number generator.
• Borden v. eFinancial LLC, No. C-19-1430 (W.D. Wash. Aug. 13, 2021): Granting motion to dismiss and holding 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): Granting 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): Granting the defendant’s motion for summary judgment and holding 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): Denying 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): Granting the defendant’s motion for judgment as a matter of law and following Tehrani.
• Jovanovic v. SRP Investments, LLC, CV-21-00393 (D. Ariz. Sept. 15, 2021): Dismissing the plaintiff’s amended complaint with prejudice and holding 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 that the 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): Denying 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): Denying motion to dismiss and holding 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): Denying a motion for sanctions that argued that the plaintiff had no reasonable basis for his ATDS claim and holding 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): Granting a motion to dismiss without prejudice and holding 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.
• Friend v. Taylor Law PLLC, No. 4:17-cv-29 (N.D. Ind. Oct. 27, 2021): Reversing a denial of summary judgment on a motion for reconsideration and finding that the defendant had not used an ATDS based on a declaration that none of its call systems had ever had the capacity to use a random or sequential number generator to store or produce telephone numbers.
• Hunsinger v. Alpha Cash Buyers LLC, No. 3:21-cv-1598 (N.D. Tex. Oct. 29, 2021): Granting a motion to dismiss because use of a random or sequential number generator could not be inferred from allegations that the text messaging system had the capacity to store telephone numbers and dial them from a list, especially since the text was sent from a long-code number.
• Camunas v. National Republican Senatorial Committee, No. 21-cv-1005 (E.D. Pa. Nov. 4, 2021): Granting a motion to dismiss because the plaintiff did not allege that his number was stored after it was generated by a random or sequential number generator.
• MacDonald v. Brian Gubernick PLLC, et al., No. 20-cv-00138 (D. Ariz. Nov. 9, 2021): Denying a motion to dismiss where the plaintiff alleged the system dialed through list of leads in sequential order, and there was a pause at the beginning of each call.
• Cole v. Sierra Pacific Mortgage Co., Inc., No. 18-cv-01692 (N.D. Cal. Dec. 15, 2021): Granting the defendant’s motion for summary judgment and holding that telephony system was not an ATDS because it did not have capacity to create telephone numbers “from scratch.”
• Austria v. Alorica, Inc., No. 2:20-cv-95019 (C.D. Cal. Dec. 16, 2021): Granting a motion to dismiss TCPA claims based on used of an autodialer and holding that a system that selects numbers from a prepopulated list does not constitute an ATDS where the list itself was not generated using a random or sequential phone number generator.

Troutman Pepper will update this tracker periodically as additional decisions are released. A limited number of decisions may be omitted due to client conflicts.