In Ewing v. Encore Solar, LLC, No. 3:18-cv-02247 (S.D. Cal. January 22, 2019), plaintiff Anton Ewing filed a suit against defendants Encore Solar, LLC; Sunrun, Inc. (“Sunrun”); Bargain Electricity, Inc. (“Bargain Electricity”); and individual employees of Encor and Bargain Electricity for violation of the Telephone Consumer Protection Act.  Ewing alleged that all defendants were liable under a theory of vicarious liability for contacting his cellular telephone using an automatic telephone dialing system, or “ATDS,” without his consent.

Ewing claimed that he believed the defendants used an ATDS to contact him because the calls exhibited signs associated with calls made by an ATDS, including repeated calls “within a period of time and the presence of a pause or click.”  Encor filed a motion to dismiss, arguing in part that a plaintiff cannot simply allege that a party used an ATDS to establish standing under the TCPA.

In rejecting Encor’s argument, Judge Cathy Ann Bencivengo adopted the expansive definition of an ATDS set forth by the Ninth Circuit in Marks v. Crunch of San Diego, 904 F.3d 1041, 1052 (9th Cir. Sept. 20, 2018).  Marks held that an ATDS is “equipment which has the capacity – (1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator – and to dial such numbers.”  Judge Bencivengo explained that although the allegations are not “sufficient on their own to support [Ewing’s] claim that an ATDS was used”, under Marks, it was “reasonable to infer that the equipment Defendants allegedly used was an ATDS.”

Encor’s motion to dismiss the TCPA claim ultimately was granted on other grounds.  Specifically, the Court rejected Ewing’s attempts to establish that Encor was vicariously liable for calls made to Ewing.  The Court found that Ewing had failed to differentiate his allegations against each defendant and that his allegations failed to distinguish the alleged wrongs each defendant purportedly committed.  Due to this failure, Ewing’s complaint “failed to adequately allege the first element of a TCPA claim, namely that Encor, or an agent acting on its behalf, called a telephone number belonging to Plaintiff.”

This case demonstrates how the Marks decision has created an uphill battle for defendants in the Ninth Circuit to challenge allegations that an ATDS was used to contact customers at the pleadings stage.