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Two recent decisions in the Ninth Circuit

Mon, 07/07/2014 - 16:14

Two recent decisions in the Ninth Circuit demonstrate the uncertainty that businesses continue to face under the TCPA

The good:
In the case of Thomas v. Taco Bell Corp. the Ninth Circuit recently upheld a lower court’s decision declining to extend vicarious liability under agency principles to the defendant in the case. While the Ninth Circuit found that vicarious liability can apply in cases where there is apparent authority or ratification, the plaintiff failed to meet their burden in demonstrating that either theory should apply.
The bad:
The district court in Sherman v. Yahoo! Inc., denied a request by the defendant to reconsider the court’s earlier order denying summary judgment. At issues was whether the court erred in their interpretation of what constituted the use of an ATDS, and whether new evidence warranted summary judgment. The court stuck to their earlier decision and rejected the argument that a system must have “present capacity” to be considered an ATDS. Specifically the district court stated:
 “This Court therefore finds the clear mandate from the Ninth Circuit requires a defendant challenging a plaintiff’s ATDS showing on a motion for summary judgment to demonstrate that no genuine issue of material fact exist as to whether the equipment at issue has the requisite current and future capacity to act as an ATDS in order to warrant summary judgment.” 
This case demonstrates that while some courts are taking the rational position that a system must have “present capacity” to be considered an ATDS, not all courts are doing so. Under a broad interpretation of this decision, what type of system couldn’t have the future capacity to act as an ATDS? 

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