Hello everyone, this is the baroness
A good decision from the Kentucky District Court recently.
Here are the facts you need to know:
On or about March 7, 2014, Plaintiff David Barnett requested and received an FNBO credit card account.
When applying for the account, Barnett provided his cell number for FNBO to contact him.
At some point, Barnett stopped making his minimum monthly payments.
As a result, the FNBO began contacting him by phone to discuss his missed payments.
Over a 7 month period, the FNBO contacted Barnett by phone, text or pre-recorded message 574 times, an average of 3.2 times per day (excluding Sundays)
Barnett alleged that he asked them to stop calling him.
Of course, and as expected, Barnett filed a lawsuit, alleging, among other things, a violation of the TCPA. FNBO sought summary judgment arguing that it did not use an ATDS to make the calls.
The Court granted in part and denied in part. The Court granted FNBO’s motion for all calls except the 111 pre-recorded calls and text messages because… the court says they were not made using an ATDS like the requires the TCPA and in accordance with Facebook. Barnett filed a motion for reconsideration.
As a refresher, motions for reconsideration may be treated as motions to modify/modify a judgment under Federal Rule of Civil Procedure 59(e), which allows a party to file a motion to modify or modify of a judgment within 28 days of its entry.
Specifically, in the Sixth Circuit, a district court has the discretion to set aside a judgment under Rule 59(e) based on at least one of the following: (1) an error in manifest right, (2) newly discovered evidence, (3) a change in applicable law, or (4) a need to prevent manifest injustice.
The manifest standard of error of law is apparently very high. To demonstrate a manifest error of law, a party must “establish not only that errors were made, but that those errors were so flagrant that an appellate court would not affirm the judgment”.
Here, Barnett alleges that the court failed to consider FNBO’s use of the TWX system in conjunction with the LiveVox system. Barnett argues that TWX AND LiveVox together constitute an ATDS because LiveVox can and does store numbers randomly or sequentially generated by TWX on a daily basis. Does this argument sound familiar?
The Court rejected this argument for two reasons. First, LiveVox is NOT an ATDS simply because it stores a randomly or sequentially generated list of numbers from TWX on a daily basis. LiveVox itself cannot store or generate numbers to call using a random or sequential number generator.
Second, LiveVox is NOT an ATDS simply because it has a cooperative link with TWX. TWX and LiveVox are two separate systems that perform separate tasks.
“Considering LiveVox to be an ATDS because of its association with TWX would practically subject a non-ATDS system/program to the TCPA simply because of its association with another separate system/program.”
Accordingly, the Court found that Barnett breached the manifest error rule and dismissed his motion for reconsideration.
Notice how the Barnett court did not include both LiveVox and TWX in the definition of ‘equipment’ – but under Panzarella decided days later – the two systems would be reviewed together to determine if an ATDS was being used . Of course, under Panzarella, simply using an ATDS is not enough – the defendant would also have to use the basic functionality of an ATDS to be liable under the TCPA. It’s a distinction that potentially makes a big difference – and we’ll talk about it in our new Deserve to Win Podcast Episode released on June 28, 2022.