By Jenniffer Cabrera
REPRESENTATIVE ADMISSIONS
NOT ENOUGH : Statement A Company Used An “ Autodialer ” Not Sufficient To Win TCPA Suit , Appellate Court Holds
By Jenniffer Cabrera
HERE is a short note on a case involving representative admissions .
In Guthrie v . PHH Mortgage 2023 WL 5312885 ( 4th Cir . Aug . 18 , 2023 ), an Appellate court concluded that the mere fact a business ’ s call center agent told a consumer an “ autodialer ” was used to make a call was not sufficient to win a TCPA case .
The Defendant had allegedly placed collection calls to the Plaintiff without express consent using an autodialer . The Defendant moved for summary judgment arguing that — after Facebook — its system could not be treated as an ATDS .
The Plaintiff failed to gather evidence regarding the capabilities of the dialer — most importantly , whether it could store or produce numbers using an ROSNG — and , instead , opposed the motion only with a statement from a representative that the calls had been made by an autodialer .
Noting that not every autodialer is an ATDS , the Appellate Court held the lower court correctly granted judgment to the defense :
Guthrie ’ s sole evidence that PHH used an automatic telephone dialing system to contact him comes from his own testimony , in which he states that two callers from PHH told him they used an “ auto dialer ” to reach him . However , in response , a PHH representative testified that “ PHH never used a random or sequential number generator to generate and then dial a telephone number when calling Plaintiff or any other individual in connection with the Loan .” J . A . 1638 . And the evidence offered by Guthrie failed to create a genuine issue of material fact that references to “ auto dialer ” referred to an “ automatic telephone dialing system .” Guthrie has provided no evidence that PHH used an “ automatic telephone dialing system ” as defined in the TCPA . So , even construing the evidence in his favor , a reasonable jury could not conclude that PHH violated the TCPA . Thus , we affirm the district court ’ s summary judgment on this claim .
Now it is important to note that PHH ’ s evidence only looked at using a ROSNG to “ generate and then dial ” a phone number — but that is not the test . Again , the test is whether a number is stored or produced using an ROSNG . PHH touched on production but not on storage . So the Court easily could have reversed on this ground .
But I think the Court was ultimately correct here because it was Plaintiff ’ s burden to prove ATDS usage , not vice versa . Even though PHH ’ s showing was insufficient to win , it did not have the burden of proof . And since Plaintiff could not demonstrate the functionalities of the system , he loses .
This might be the best case to date on the impact of representative admissions regarding dialer usage . Keep it in mind !
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