On September 30, the District of Nevada dismissed a plaintiff’s class claim under the Telephone Consumer Protection Act but permitted her individual claim to proceed. In Whittum v. Acceptance Now West LLC, plaintiff Roxanne Whittum alleged that Acceptance Now placed multiple calls to her using an automatic telephone dialing system (“ATDS”) in violation of the TCPA. She brought her TCPA claim on behalf of herself and a purported nationwide class.
Acceptance Now moved to dismiss Whittum’s TCPA claim, arguing she failed to allege sufficient facts to support a finding that the calls at issue were placed using an ATDS. The Court rejected this argument, finding that Whittum’s allegations “that she received calls on her cell phone from Defendant, that ‘upon information and belief’ Defendant employed an ATDS to make these calls, and that she did not consent to be contacted” were sufficient to state a claim under the TCPA. In finding these bare assertions “not fatal to her claim at the pleading stage,” the Court went against a growing trend in other courts to require more factual allegations.
Acceptance Now also moved to strike Whittum’s nationwide TCPA class under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County. The Court found this argument premature but did not provide any additional analysis. Nonetheless, the Court found that Whittum failed to “sufficiently [plead] allegations to establish a class under the TCPA beyond conclusory statements that nationwide violations occurred.” Based on this finding that allegations of nationwide violations were “speculative,” the Court dismissed the TCPA class claims.
Whittum also alleged individual and class claims under the Nevada Deceptive Trade Practices Act (“NDTPA”). The Court dismissed the NDTPA claims, finding that NDTPA did not cover the calls at issue because they did not involve a “solicitation by telephone” related to the sale of goods or services.
This decision highlights the varying standards courts apply when deciding what facts related to the use of an ATDS a plaintiff must allege to state a claim under the TCPA. It also serves as a reminder to TCPA defendants to signal to the Court the weaknesses of a purported class claim at an early juncture in the case.