Drew v. American Directions Research Group
MEMORANDUM Opinion and Order: ADRG's motion to dismiss 30 is denied. Signed by the Honorable Sharon Johnson Coleman on 10/16/2020. Mailed notice. (ym, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
MICHAEL DREW, on behalf of himself
and all others similarly situated,
AMERICAN DIRECTIONS RESEARCH , )
Case No. 20-cv-00402
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Drew, individually and on behalf of all others similarly situated, filed a first
amended class action complaint (“complaint”) against defendant American Directions Research
Group (“ADRG”). Plaintiff brought a claim for violation of the Telephone Consumer protection
Act, 47 U.S.C. § 227 et seq. (“TCPA”). ADRG now moves to dismiss the complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons outlined below, ADRG’s
motion to dismiss  is denied.
Plaintiff alleges the following facts in the complaint. Defendant ADRG is a Washington,
D.C. corporation that does or transacts business in Illinois. On January 10, 2020, Plaintiff received
at least one text message to his cell phone from ADRG without his consent. The message came
from a number ending in 5774 and included a website associated with ADRG. The text message
read: “MICHAEL, We’re texting voters about local issues and your opinion matters. Please click to
participate: [website address].”
The compliant alleges that ADRG obtained consumers’ cellular phone numbers by
purchasing lists of telephone numbers collected by other companies in the form of a database file or
a spreadsheet file, including Plaintiff’s telephone number. Many of these collected numbers received
text messages despite the consumers having never given express consent to be contacted or
providing contact information to ADRG. ADRG also keeps records and data from which it can
determine which autodialed text messages it made without consent.
The complaint alleges that ADRG used an automated telephone dialing system (ATDS) to
send text messages to the collected numbers. It further alleges that based on the impersonal,
unsolicited nature of the text and the unknown number from which it was received, an ATDS was
used. The ATDS uses a sequential or random number generator to store the list of telephone
numbers that are then sent text messages automatically.
The text message itself was sent as part of a mass-text campaign, directing “voters” and
encouraging them to “participate” in an online survey. The complaint alleges the text message was
sent by an unknown number and was unsolicited. It also alleges that ADRG’s purchased lists of
telephone numbers very likely contained other personal information, including Plaintiff’s first name.
Plaintiff alleges that the text messages were annoying to him, invaded his privacy interests,
and temporarily blocked use of his cellular telephone line for other potential callers. Because of this,
Plaintiff filed a first amended class action complaint (“complaint”) against ADRG on January 7,
2020. Plaintiff brought a claim for violation of the Telephone Consumer protection Act, 47 U.S.C.
§ 227 et seq. (“TCPA”) on behalf of plaintiff and the putative TCPA class. ADRG now moves to
dismiss the complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).
When considering a Rule 12(b)(6) motion, the Court accepts all of the plaintiff’s allegations
as true and views them “in the light most favorable to the plaintiff.” Lavalais v. Vill. of Melrose Park,
734 F.3d 629, 632 (7th Cir. 2013). A complaint must contain allegations that “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). The plaintiff does not need to plead particularized facts, but the allegations in the complaint
must be sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
ADRG argues the complaint should be dismissed because plaintiff has not pled sufficient
facts that ADRG used an ATDS to text him in violation of the TCPA. The TCPA provides as
It shall be unlawful for any person within the United States ...
(A) to make any call (other than a call made for emergency purposes
or made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
(iii) to any telephone number assigned to a ... cellular telephone
47 U.S.C. § 227(b)(1)(A)(iii); see also Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016)
(clarifying that text messages qualify as a “call” under the TCPA). Accordingly, absent certain
exceptions, the TCPA “prohibits the use of an ‘automatic telephone dialing system’ to call or text
any cellular phone without the prior consent of the recipient.” Gadelhak v. AT&T Servs., Inc., 950
F.3d 458, 460 (7th Cir. 2020).
The TCPA defines an ATDS as “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(a)(1)(A)-(B). The Seventh Circuit recently clarified that the phrase “using
a random or sequential number generator” modifies both “store” and “produce,” defining the
capability of a piece of equipment required to qualify as an “automatic telephone dialing system.”
Gadelhak, 950 F.3d at 464. Therefore, in order to succeed in a TCPA case, the plaintiff must allege
and later prove that the equipment that originated the contact was capable of either storing or
producing telephone numbers using a random or sequential number generator.” Id. at 463.
While Gadelhak was key in determining how to interpret the qualifications for an ATDS
under the TCPA, the case was decided on appeal from the summary judgment stage of litigation.
Without any authoritative case law from the Seventh Circuit Court of Appeals as to the pleading
requirements, the Court subsequently turns to sister district courts that have addressed the issue for
There is some disagreement among district courts in the Seventh Circuit as to the pleading
standard required to overcome a motion to dismiss when alleging use of an ATDS. Some district
courts have determined that it is too conclusory to plead the definition of an ATDS without further
descriptive details or allegations. See Serban v. CarGurus, Inc., No. 16 C 2531, 2016 WL 4709077, at
*3-4 (N.D. Ill. Sep. 8, 2016) (Ellis, S.). In Mosley v. Gen. Revenue Corp., the District Court in the
Central District of Illinois determined that “[w]hile a plaintiff need not have advanced technical
knowledge of the devices used, there still must be some basis in the pleading which raises the ATDS
claim from speculative to plausible.” 2020 WL 4060767 at *4 (C.D. Ill. July 20, 2020). The court
decided that it was clearly speculation and not strong enough to survive a motion to dismiss “[t]o
claim that a defendant might have used a device that might have the capacity to randomly or
sequentially generate numbers.” Id. at *4. Other district courts merely require recitation of the
statue without any supporting facts, arguing it would be virtually impossible for the plaintiff to know
what type of machine a defendant used before discovery. Zeidel v. Nat’l Gas & Elec., LLC, No. 18
CV 06792, 2019 WL 2161546, at *4 (N.D. Ill. 2019) (Lee, J.). In Klueh v. Paul Vallas for All Chi., the
District Court in the Northern District of Illinois agreed with this position and decided that
evidentiary issues about the capacity of the platform as an ATDS are more appropriate for
resolution at a later stage of litigation. Klueh v. Paul Vallas for All Chi., No. 19 CV 00249, 2020 WL
4934975 at *7 (N.D. Ill. Aug. 24, 2020) (Pacold, M.). In Klueh, the court noted that the parties
should prioritize limited discovery about whether the system in question had the required capacity to
qualify as an ATDS. Id. at *7.
In Mosley, one factor the court considered was identification of the type of business being
accused of using an ATDS, as that might be indicative of the likelihood of the use. Mosley 2020 WL
4060767 at *4. The court determined that “[i]t is not plausible to conclude that a company seeking
to collect debts . . . would use a system that randomly and sequentially generates phone numbers.”
Id. The court reasoned that it is far more likely that a “telemarketing company, bank, or other seller
of goods” would desire to have machines with the capacity to dial randomly or sequentially
generated numbers than a debt collection agency. Id. In the present case, ADRG, being a survey
research provider, is significantly more likely to employ a random or sequential number generator
than a debt collection company. Therefore, this factor weighs in favor of denying the ADRG’s
motion to dismiss.
Here, the complaint alleges more than just barebone allegations of a violation of the TCPA
by reciting the relevant language of the statute. The complaint alleges some detail, but the specifics
likely cannot be known by Plaintiff at this stage. It is clear from the allegations that the
determination of whether an ATDS was used will be best resolved after the benefit of some
discovery. Because of the phrase “[w]e’re texting voters,” the plaintiff has alleged that use of the
plural “voters” implies a high volume of recipients. In addition, the complaint also alleges that the
text message itself encouraging “voters” to “participate” in an online survey makes the text message
generic. ADRG argues that the text, being addressed to ‘MICHAEL,’ goes against it being
impersonal or unsolicited because it uses a first name. Because the plaintiff also alleged that ADRG
purchases lists of telephone numbers, a reasonable inference is that list also contained other personal
information, including the plaintiff’s first name. Accordingly, more evidence acquired through
discovery is essential here.
The generic and impersonal nature of the text message, coupled with the business platform
of ADRG, suggests that the use of an ATDS is more plausible than possible. It is plausible that the
machine used to text the plaintiff here was capable of storing and producing telephone numbers and
subsequently dialing them. Therefore, discovery should move forward, with an early emphasis on
whether the system in question had the required capacity to qualify as an ATDS.
Based on the foregoing, ADRG’s motion to Dismiss  is denied.
IT IS SO ORDERED.
SHARON JOHNSON COLEMAN
United States District Court Judge
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