Telephone Consumer Protection Act

Elzen v. Global Strategy Group, LLC, et al., No. 20-cv-3541 (JPO), 2021 WL 185328 (S.D.N.Y. Jan. 19, 2021)

Plaintiff filed a putative class action, claiming Defendants violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), by sending Plaintiff and others an unsolicited text message survey. The message Plaintiff received stated “DAVID, We’re texting voters about local issues and your opinion matters. Please click to participate:,” providing a link directing Plaintiff to a survey. One Defendant moved to stay the case, contending that resolution of Facebook v. Duguid, pending before the United States Supreme Court, could foreclose Plaintiff’s TCPA claim as pled.

On July 9, 2020, the United States Supreme Court granted certiorari in that case on the question of whether an “automatic telephone dialing system” (ATDS) within the meaning of the TCPA “encompasses any device that can ‘store and automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator."

Here, Plaintiff’s only claim was that Defendants violated the TCPA’s prohibition of using an ATDS to text him the survey. While Plaintiff claimed the text message was unsolicited, it was nonetheless addressed to him. Because the message was addressed to Plaintiff, the Court could only conclude that the technology used to send the message utilized a list containing the names and numbers of people to be contacted because had the technology generated Plaintiff’s number at random or in sequence, there would have been no way of knowing the message was sent to someone named “DAVID.” Thus, if Facebook v Duguid were to establish that a prohibited ATDS must use a random or sequential number generator, it seems unlikely Plaintiff’s TCPA claim would survive as pled.

Noting that the “arguments for staying the case are strong,” the Court recognized Defendant’s “substantial interest in avoiding unnecessary discovery and its concomitant costs.” The Court also expressed its interest in avoiding “unnecessary expenditure of judicial resources to set a schedule for discovery and manage any discovery dispute,” adding that the risk of prejudice to Plaintiff and potential class members was low because “[t]he Supreme Court has already held oral argument in Facebook v. Duguid, and the only harm that Plaintiff has suffered, and the only future harm that delayed relief may risk, is the minor ‘annoyance’ of receiving an unsolicited text message. On balance, a stay is warranted.”

For these reasons, the Court granted a stay of the case pending resolution of Facebook v. Duguid.