Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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On April 7, 2020, the Second Circuit Court of Appeals vacated a district court’s decision granting summary judgment to a defendant in a TCPA class action and de

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More Autodialer Confusion: Second Circuit Decision Deepens Circuit Split

More Autodialer Confusion: Second Circuit Decision Deepens Circuit Split | Class Dismissed

Adam J. Hunt

Michael G. Ahern

On April 7, 2020, the Second Circuit Court of Appeals vacated a district court’s decision granting summary judgment to a defendant in a TCPA class action and deepened a split among federal courts by holding that the systems the defendant used to send text messages were Automatic Telephone Dialing Systems (“ATDSs”) under the Telephone Consumer Protection Act (“TCPA”). In Duran v. La Boom Disco, Inc., No. 19-600-cv (2d Cir. Apr. 7, 2020), the Second Circuit interpreted the two concurrent “capacities” that are necessary for a dialing system to qualify as an ATDS under the TCPA<a href="#_ftn1" name="_ftnref1">[1]</a> and concluded that:<ul><li>A dialing system that stores a list or database of telephone numbers that was generated and uploaded to the system by humans may be considered an ATDS.</li><li>An ATDS requires the capacity to “dial” telephone numbers automatically—e. without human intervention. However, a person clicking “send” to distribute the calls or text messages is not sufficient human intervention and such a system may be considered an ATDS.</li></ul>In reaching these conclusions, the Second Circuit followed the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), in contrast to Seventh, Eleventh, and Third Circuits, which held that an ATDS cannot make calls from stored lists. Accordingly, defendants in TCPA actions can no longer argue that the Ninth Circuit is the black sheep among federal courts of appeals on the critical autodialer issue. And the Second Circuit likely will become the new favorite jurisdiction among TCPA plaintiffs’ lawyers.Background of the Case: A Party-Pooping PlaintiffIn 2016, plaintiff Radames Duran (“Duran”) voluntarily texted a code to a phone number maintained by defendant La Boom Disco (“LBD”), a nightclub, to gain free admission to a party. From that point on, LBD maintained Duran’s telephone number on a list and would send him numerous text messages each month.<a href="#_ftn2" name="_ftnref2">[2]</a> In 2017, Duran filed a class-action complaint alleging that he received “unsolicited and unconsented-to” text messages from LBD in violation of the TCPA.On summary judgment, LBD conceded that it sent the text messages to Duran, but argued that it did not violate the TCPA because the systems it used to send the messages, ExpressText and EZ Texting Programs, were not covered by the statute. The district court held that the systems’ reliance on a database of numbers, rather than a random or sequential number generator, did not disqualify them from TCPA coverage. See Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 490 (E.D.N.Y. 2019). But the district court held that the systems were not an ATDS because they required too much human intervention when dialing. Specifically, the district court concluded that “because a user determines the time at which [the systems] send messages to recipients, they operate with too much human involvement to meet the definition of an [ATDS].” Id. at 492. Duran appealed the district court’s decision.The Second Circuit Crashes the PartyAn ATDS Can Make Calls from a Stored ListThe first issue before the Second Circuit was whether the systems had the “capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator.” Both parties agreed that humans generated the telephone numbers and uploaded them to LBD’s systems. The Second Circuit acknowledged a circuit split as to whether a system that pulls numbers from a stored list when it automatically dials is an ATDS, or whether the system must randomly or sequentially generate those numbers to qualify as an ATDS. The Seventh, Eleventh, and Third Circuits have all held that systems lacking the capacity to randomly or sequentially generate numbers do not constitute an ATDS because they only dial telephone numbers from lists that had been generated and uploaded by humans.<a href="#_ftn3" name="_ftnref3">[3]</a> By contrast—in what was once an outlier decision—the Ninth Circuit held that systems that call numbers from a list or database uploaded by humans fall under the statutory definition of an ATDS because the clause requiring the use of “a random or sequential number generator” modifies only the verb “produce” in the statute, but not the word “store.” Thus, under the Ninth Circuit’s holding, only the numbers that are “produced” are required to be randomly or sequentially generated. The Second Circuit followed the Ninth Circuit and held because the systems that LBD used “stored” the lists of numbers was enough for them to qualify as an ATDS.The Second Circuit reasoned that its interpretation of the statute was supported by the rule against surplusage, the structure and purpose of the TCPA, and the prior guidance from the Federal Communications Commission (“FCC”). Agreeing with the Ninth Circuit, the Second Circuit noted that its holding avoids rendering the word “produce” redundant by giving it an independent significance from the word “store,” i.e. differentiating between a system that can store numbers of all kinds and one that can produce numbers in a particular way (randomly or sequentially). Next, the Second Circuit observed that the TCPA allows an ATDS to be used “to collect a debt owed to or guaranteed by the United States.” As Congress did not authorize the use of stored lists only for this exception, it must have intended to allow ATDSs to store lists of human-generated numbers generally. Finally, the Second Circuit looked to the 2003, 2008, and 2012 FCC Orders as persuasive authority.<a href="#_ftn4" name="_ftnref4">[4]</a> The Second Circuit found that the FCC suggested that the TCPA should be interpreted broadly so that the statute’s prohibitions maintain their deterrent effect.Human Intervention: Clicking “Send” Is Not the Same as “Dialing”The second issue before the Second Circuit was whether the systems had the “capacity . . . to dial such numbers.” The Second Circuit analyzed how much human intervention is tolerable under the statute before an ATDS becomes a non-ATDS and found that the district court erred in finding the human intervention analysis turned solely on the timing factor. Instead, the Second Circuit held that the key factor in the analysis is whether the systems had the ability to “dial” automatically, i.e. without human intervention. The Second Circuit held that clicking “send” or some similar button—like flipping an “on” switch—is not the same thing as dialing, “since it is not the actual or constructive inputting of numbers to make an individual telephone call or to send an individual text message.” According to the Second Circuit, to hold otherwise would undermine Congress’s ultimate purpose in passing the TCPA because any dialing system presumably requires some sort of human operation at some point in the process. In anticipation of future arguments concerning calls made using smartphones, the Second Circuit included a lengthy footnote explaining that its holding does not “unintentionally define all smartphones as ATDSs,” because clicking on a name in a smartphone digital phonebook is a “form of speed‑dialing or constructive dialing that is the functional equivalent of dialing by inputting numbers.”Takeaways  <ul><li>Duran deepens the circuit split on the “random or sequential number generator” requirement for ATDSs under the TCPA. Now that the Second Circuit has followed the Ninth Circuit’s precedent in Marks, it is possible that other circuits may adopt the same approach.</li><li>Duran expands potential TCPA liability in the Second Circuit in two respects: <ul><li>A dialing system that stores a list or database of telephone numbers but does not produce those numbers from a “random or sequential number generator” may be considered an ATDS; and</li><li>A dialing system where human interaction is limited to clicking “send” or a similar button may be considered an ATDS.</li></ul></li><li>Until the FCC or the Supreme Court weighs in on these issues, there will continue to be confusion and inconsistent holdings on the ATDS issue among district courts that are not in the Second, Ninth, Seventh, Eleventh, or Third Circuits.</li></ul><a href="#_ftnref1" name="_ftn1">[1]</a> To qualify as an ATDS, a dialing system must have both the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator[,]” 47 U.S.C. § 227(a)(1)(A), and the capacity “to dial such numbers[,]” id. § 227 (a)(1)(B).<a href="#_ftnref2" name="_ftn2">[2]</a> Duran alleged he received somewhere near 300 text messages, while LBD argued it only sent him around 121 text messages.<a href="#_ftnref3" name="_ftn3">[3]</a> See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018).<a href="#_ftnref4" name="_ftn4">[4]</a> The Second Circuit noted that its decision in King v. Time Warner Cable Inc., 894 F.3d 473 (2d Cir. 2018) and the D.C. Circuit’s decision in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018) did not invalidate the 2003, 2008, and 2012 FCC Orders.