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Just when the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC was looking like a lonely outlier in Federal Circuit Court law, the Second Circuit Court of Appeals yesterday in Duran v. La Boom Disco, No. 19-600-cv (April 7, 2020), adopted the Marks expansive definition of an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act (TCPA), driving further division within Federal Court of Appeals and adding new life to TCPA litigation in Connecticut, New York and Vermont.

In Duran, the parties conceded the text messages were sent using the ExpressText and EZ Texting Programs (the Programs) but argued the Programs did not qualify as an ATDS as matter of TCPA law. The District Court granted summary judgment in favor of the defendant consistent with the growing trend of federal law led by the Seventh, Eleventh and Third Circuits finding a narrow definition of an ATDS that, in basic terms, limits the TCPA only to those communication systems that automatically generate and dial random or sequential numbers. Most important to the defense of TCPA claims, this narrow definition excludes from TCPA coverage those systems that simply pull numbers from a stored list when it automatically dials. Whereas, the expansive definition established in Marks includes both types of systems.

On appeal, the Second Circuit recognized that a split has emerged, reaching different conclusions over the narrow vs. expansive definition. After a lengthy exercise in statutory interpretation and in considering the Federal Communications Commission (FCC) orders over the last decade, the Second Circuit broke from the recent trend in adopting the narrow definition and followed Marks with its expansive definition. The Court also analyzed the long litigated “human intervention” defense and equally rejected the District Court’s finding on that issue, ultimately vacating judgment and remanding the putative class action for further proceedings.

The Duran ruling further muddies the case law under the TCPA and only intensifies the need for either FCC or Supreme Court determination on the definition of ATDS. In the short term, we expect an exponential increase in TCPA claims filed in the Second Circuit. Accordingly, businesses may want to evaluate their call and text campaigns to individuals and businesses in these states.