The Ninth Circuit recently reversed a lower court’s dismissal of a Telephone Consumer Protection Act (TCPA) putative class action against Adir International, LLC (“Adir”), holding that Plaintiff Ned Flores (“Flores”) sufficiently alleged that Adir used an automatic telephone dialing system (“ATDS”) to send text messages to Flores.

According to the First Amended Complaint, Adir is in the business of buying consumer debts and collecting on those debts.  Adir allegedly began to send Flores text messages for the purpose of debt collection, asking Flores to contact Adir and began providing a reference number.  Adair moved to dismiss the Complaint for failure to allege that it contacted Flores using an ATDS.  The district court held that Flores’ “conclusory allegation that [Adir] used an ATDS is little more than speculation, and cannot support a claim for relief under the TCPA.”  Flores appealed.

On appeal, the Ninth Circuit found that the following six allegations permitted the district court to reasonably infer the use of an ATDS:

  1. Adir sent Flores identical text messages on four different occasions;
  2. When Flores sent a response text message saying “Stop,” he “almost immediately” received another text message from Adir stating that Flores would no longer receive text messages from Adir;
  3. Flores continued to receive text messages even after he responded “Stop;”
  4. The text messages were “generically formatted and appeared to be scripted;”
  5. None of the texts referenced Flores directly; and
  6. The texts came from an short message service (“SMS”).

The Ninth Circuit reiterated that the focus of the district court’s analysis should be on the equipment’s capacity to store or produce telephone numbers to be called, using a random or sequential number generator.  Construing the allegations in favor of Flores, the Ninth Circuit held that it was reasonable to infer that Adir used an ATDS to send text messages to Flores.  The case was reversed and remanded.