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Ever since the Supreme Court’s big ATDS ruling in Facebook TCPA ATDS cases have been withering away, even while filings of other types of TCPA cases continue to go through the roof.
Still, extraordinary facts lead to extraordinary rulings.
Take the case of Cupp v. TA Fintech, 2026 WL 1538123 (N.D. Cal. June 1, 2026).
There the Plaintiff alleged the following:
According to the complaint, Defendant began sending Plaintiff text messages and placing calls on or about April 20, 2024, from 5–digit short codes including 40591 and 61893, promoting Defendant’s trading-related services, including “AI” trading signals and membership offerings. Id. ¶¶ 8, 12-13. Plaintiff alleges the messages arrived in recurring daily patterns at approximately 7:55 a.m., 11:55 a.m., and 5:55 p.m., used substantially similar or templated wording, and were sent in a high-volume, campaignlike cadence over less than 30 days. Id. ¶¶ 14-15. Plaintiff asserts these facts, (the use of short codes, recurring timing, uniform content, and sustained volume) support a reasonable inference that Defendant used automated equipment to store telephone numbers and send mass text messages, and that details of the equipment are within Defendant’s possession. Id. ¶¶ 17-18.
On these facts Plaintiff sued for violation of the TCPA’s regulated technology provisions (227(b)) alleging an automated telephone dialing system had been used to send the messages.
As TCPAWorld readers know there is a big difference between DNC and ATDS claims under the TCPA when it comes to SMS messages. One big difference is that SMS messages ARE treated as calls for 227(b) purposes, so the Court had little trouble concluding these messages might trigger the TCPA if an ATDS was used.
But ATDS usage is VERY hard to prove in the Ninth Circuit– essentially the phone numbers dialed need to be randomly created, not just randomly sequenced or stored as is the case in other jurisdictions.
Defendant moved to dismiss arguing allegations of random number creation are not apparent on the face of the complaint. The Court didn’t necessarily disagree but essentially found it was too early to dismiss the case on that basis:
In sum, while Defendant argues the amended complaint must be dismissed because it still does not allege that TA Fintech used equipment that ‘randomly or sequentially’ generated Plaintiff’s telephone number, the Court finds the amended complaint, read as a whole, contains “sufficient facts to show that it is plausible” that Defendant used an ATDS. Twombly and Iqbal do not require a plaintiff to possess or to plead evidence. Rather, “detailed factual allegations are not required,” and a complaint need only have sufficient factual allegations to “state a claim to relief that is plausible on its face.” Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 570). The Court finds Plaintiff has met this standard.
This feels like a “bad facts make bad law” situation. Had the defendant sent a handful of messages they probably would have walked away here. But the large volume of calls lead to a negative result.
Pretty clear take aways:
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Find Your Next Job !
Ever since the Supreme Court’s big ATDS ruling in Facebook TCPA ATDS cases have been withering away, even while filings of other types of TCPA cases continue to go through the roof.
Still, extraordinary facts lead to extraordinary rulings.
Take the case of Cupp v. TA Fintech, 2026 WL 1538123 (N.D. Cal. June 1, 2026).
There the Plaintiff alleged the following:
According to the complaint, Defendant began sending Plaintiff text messages and placing calls on or about April 20, 2024, from 5–digit short codes including 40591 and 61893, promoting Defendant’s trading-related services, including “AI” trading signals and membership offerings. Id. ¶¶ 8, 12-13. Plaintiff alleges the messages arrived in recurring daily patterns at approximately 7:55 a.m., 11:55 a.m., and 5:55 p.m., used substantially similar or templated wording, and were sent in a high-volume, campaignlike cadence over less than 30 days. Id. ¶¶ 14-15. Plaintiff asserts these facts, (the use of short codes, recurring timing, uniform content, and sustained volume) support a reasonable inference that Defendant used automated equipment to store telephone numbers and send mass text messages, and that details of the equipment are within Defendant’s possession. Id. ¶¶ 17-18.
On these facts Plaintiff sued for violation of the TCPA’s regulated technology provisions (227(b)) alleging an automated telephone dialing system had been used to send the messages.
As TCPAWorld readers know there is a big difference between DNC and ATDS claims under the TCPA when it comes to SMS messages. One big difference is that SMS messages ARE treated as calls for 227(b) purposes, so the Court had little trouble concluding these messages might trigger the TCPA if an ATDS was used.
But ATDS usage is VERY hard to prove in the Ninth Circuit– essentially the phone numbers dialed need to be randomly created, not just randomly sequenced or stored as is the case in other jurisdictions.
Defendant moved to dismiss arguing allegations of random number creation are not apparent on the face of the complaint. The Court didn’t necessarily disagree but essentially found it was too early to dismiss the case on that basis:
In sum, while Defendant argues the amended complaint must be dismissed because it still does not allege that TA Fintech used equipment that ‘randomly or sequentially’ generated Plaintiff’s telephone number, the Court finds the amended complaint, read as a whole, contains “sufficient facts to show that it is plausible” that Defendant used an ATDS. Twombly and Iqbal do not require a plaintiff to possess or to plead evidence. Rather, “detailed factual allegations are not required,” and a complaint need only have sufficient factual allegations to “state a claim to relief that is plausible on its face.” Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 570). The Court finds Plaintiff has met this standard.
This feels like a “bad facts make bad law” situation. Had the defendant sent a handful of messages they probably would have walked away here. But the large volume of calls lead to a negative result.
Pretty clear take aways:
More Upcoming Events
Sign Up for any (or all) of our 25+ Newsletters
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2026 National Law Forum, LLC