A year ago, the landmark Ninth Circuit decision in Marks v. Crunch San Diego, LLC broadened the definition of what constitutes an Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (TCPA). Finding the statutory definition to be vague, the court disregarded the precedent of Dominguez v. Yahoo requiring that an ATDS have the capacity to generate or store random or sequential numbers. Since the Marks decision, callers have been worried that the precedent created by this broad definition of an ATDS would lead to an expansion of TCPA litigation. However, many subsequent district court decisions have ignored the Marks precedent and retained the more restricted statutory ATDS definition.

This month, district courts in Florida and Texas followed this trend, dismissing TCPA cases for not meeting the statutory definition of an ATDS.

In Johnson v. Capital One Servs., No. 18-cv-62058, 2019 U.S. Dist. LEXIS 159633 (S.D. Fla. Sept. 16, 2019), the plaintiff alleged that the defendant's agent told her that they had contacted her with an "autodialer." The court found that this stray statement was insufficient to prove that the call had been placed with a system that had the capacity to generate random or sequential numbers and then dial them⁠—which is the aforementioned statutory definition.

The decisions in Reed v. Quicken Loans, No. 3:18-cv-3377, 2019 U.S. Dist. LEXIS 159935 (N.D. Tex. Sept. 3, 2019) follows this summer's decision in Adams v. Safe Home Security, Inc. as the second time a Texas district court has disregarded the Marks precedent. In Reed, the court granted the motion to dismiss solely on legal conclusions rather than allegations of fact.