District of Maryland Joins Growing List of Courts to Reject Marks, Stays Case Pending Fourth Circuit Action

As the Eric Troutman remarked recently, courts outside of the Ninth Circuit continue to reject the Marks court’s overt departure from the statutory definition of an ATDS. We can now add the District of Maryland to that growing list of courts that apply the statutory definition of an ATDS. See Drake v. Synchrony Bank, No. CCB-19-2134, 2019 U.S. Dist. LEXIS 180322 (D. Md. Oct. 17, 2019). The court, however, stayed the case pending the Fourth Circuit’s decision in the Snow matter, 2019 U.S. Dist. LEXIS 99760, (E.D.N.C. 2019), appeal docketed, No. 19-1724 (July 11, 2019).

In a very brief opinion, the Drake court held that the TCPA plainly requires a random or sequential number generator to be an ATDS. And although the court conceded that the calls at issue “may well be computerized, pre-recorded, and dialed repeatedly based on stored telephone numbers,” nothing in the Complaint or request for leave to amend indicated that a random or sequential number generator was used. Instead, the court reasoned that the allegations showed that the defendant was actually trying to reach one of its account holders and simply dialed the wrong number, rather than dialing a randomly or sequentially generated number.

Rather than dismissing the complaint, however, the court stayed the motion pending the resolution of the Snow appeal, in which the Fourth Circuit will (hopefully) clarify the definition of an ATDS.

We are monitoring the Snow appeal and others percolating through appellate courts closely. As always, we will provide breaking updates as courts continue to define an ATDS—hopefully in a manner consistent with the statutory definition.

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