The District Court of Arizona recently issued the first post-Marks MSJ ruling in favor of defendant, applying Marks. In Shupe v. Capital One Bank, Plaintiffs brought claims for a violation of the TCPA and a violation of the regulations implementing the TCPA, including the DNC Registry against defendant Capital One Bank. Defendant responded with a motion for summary judgment, which U.S. District Judge Jennifer Zipps granted due to Plaintiffs’ failure of proof on Defendant’s use of an ATDS.

As part of its standard practice, Defendant Capital One asserted it sent Plaintiffs the Capital One Customer Agreement along with the credit card Plaintiffs applied for. Under the Customer Agreement, cardholders acknowledge that Capital One can contact them “using an automated dialing or similar device” and if customers provide Capital One their “mobile telephone number, we may contact you at this number using an Autodialer.”

Plaintiffs denied receiving the Customer Agreement and further asserted that they revoked consent to receive Capital One calls.

Prior to the filing of Defendant’s motion for summary judgment, Plaintiffs requested documents related to “the automated telephone dialing system used by defendant to place calls to Plaintiffs,” which Defendant served responses to. Plaintiffs then filed two motions to compel, neither of which related to the ATDS. Additionally, the court had provided two extensions to the discovery deadlines.

In its motion, Capital One argued that it is entitled to summary judgment because Plaintiffs did not produce evidence that Capital One used an ATDS and that Plaintiffs had expressly consented to receive autodialed calls when they accepted the Customer Agreement.

The district court agreed with Defendant that Plaintiffs failed to produce evidence of ATDS use, a necessary element of Plaintiffs’ TCPA claim. And in defining an ATDS, the court cited to the statutory language of an ATDS as well as language from Marks:

An ATDS “means equipment which has the capacity– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227; see also Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553, at *9 (9th Cir. Sept. 20, 2018) (ATDS devices also include “equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or control.”) (emphasis in original).

Shupe at *4.

The Shupe court did not delve into the contours of “automatic dialing,” but seems to read Marks’ definition of an ATDS to include any equipment that could engage in such dialing. Recall, the Marks court made a brief mention that “Congress made clear that it was targeting equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or controlwhen addressing the “human intervention” question. Interestingly, the Shupe court does not cite to Marks’ definition of an ATDS, but rather cites to the statutory language and this brief notation in Marks – implying that ATDS includes equipment that could engage in “automatic dialing,” regardless of whether human intervention is involved.

Plaintiffs did not dispute the insufficiency of evidence of Defendant’s use of an ATDS and noted that their inability to obtain ATDS evidence was Defendant’s fault. The court, however, found that Plaintiffs had ample opportunity to obtain discovery as to ATDS use and there was no evidence that Capital One refused to participate in the discovery process.

On this basis, the court granted Defendant’s motion for summary judgment and thus did not need to address Defendant’s express consent argument. While we got our first defense favorable MSJ ruling post-Marks, we still continue to live in a world of uncertainty here at TCPAland as the Shupe court did not provide much guidance on what an ATDS means – but we’ll take any little victory we can.

Additionally, the court also ruled that Capital One was entitled to summary judgment on the federal DNC claim, because Plaintiffs could not produce evidence that Capital One’s calls to Plaintiffs were telephone solicitations. “Plaintiffs bear the burden of providing the elements of their Do-Not-Call claim, including that the calls were solicitations.”