by Lisa S. Yun and Shannon Petersen
In Duran v. LaBoom Disco, Inc., No. 19-600-cv (2d Cir. Apr. 7, 2020), the Second Circuit joined the Ninth Circuit in expansively defining Automatic Telephone Dialing System ("ATDS") under the Telephone Consumer Protection Act ("TCPA"). The Second Circuit held, like the Ninth Circuit before, that ATDS includes automated texts/calls to consumers from stored lists, while the Third, Seventh, and Eleventh Circuits have held the opposite, requiring that an ATDS make texts/calls not only automatically, but from a list of randomly generated numbers. The Second Circuit decision highlights the growing Circuit split on the issue and potentially foreshadows a date with the Supreme Court. For now, the decision will likely encourage TCPA class action plaintiffs to fill their dance cards in New York and other states in the circuit.