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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENJAMIN GARNER AND DEBORAH 

SCHICK, individually and on behalf of all 

similarly situated individuals, 

Plaintiffs,

v.

ALLSTATE INSURANCE COMPANY, an 

Illinois Insurance Company,

Defendant.

Civil Action No.: 1:20-cv-04693

Hon. John Z. Lee 

DEFENDANT ALLSTATE INSURANCE COMPANY’S SUPPLEMENTAL BRIEF 

IN SUPPORT OF ITS OPPOSED PARTIAL MOTION TO DISMISS PLAINTIFFS’ 

CLASS ACTION COMPLAINT IN LIGHT OF THE FACEBOOK v. DUGUID DECISION

Defendant Allstate Insurance Company (“Allstate”), by and through its undersigned 

counsel of record, respectfully submits this supplemental brief in support of its Opposed Partial 

Motion to Dismiss Plaintiffs’ Class Action Complaint (ECF No. 17) in light of the recent United 

States Supreme Court decision, Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) on April 1, 2021. 

For the reasons set forth herein, Allstate respectfully requests that the Court dismiss the First Cause 

of Action of Plaintiffs’ Complaint (ECF No. 1) with prejudice. 

I. Introduction

As explained in Allstate’s Memorandum of Law in Support of its Motion (ECF No. 18) 

and Reply (ECF No. 27), Plaintiffs fail to allege facts that, taken as true, plausibly give rise to their 

claim that they received calls placed using an automatic telephone dialing system (“ATDS” or 

autodialer) as defined under the Telephone Consumer Protection Act (“TCPA”) and interpreted 

recently by the Supreme Court in Facebook. The relevant factual allegations in the Complaint are 

entirely conclusory and, even read in a light most favorable to Plaintiffs, do not satisfy the federal 

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pleading standard. Moreover, even the conclusory allegations in the Complaint do not meet the 

definition of an ATDS as clarified in Facebook. 141 S. Ct. at 1167 (defining ATDS as a device 

with “the capacity either to store a telephone number using a random or sequential generator or to 

produce a telephone number using a random or sequential number generator”). 

II. Plaintiffs’ Allegations of an ATDS.

To state a claim for a violation of the TCPA, Plaintiffs must allege that (1) the defendant 

called a cellular telephone number; (2) using an automatic telephone dialing system or an artificial 

or prerecorded voice; and (3) without the recipient’s prior express written consent. 47 U.S.C. § 

227(b)(1). 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). Plaintiffs’ conclusory allegations that an 

ATDS was used to place the alleged calls are so scant they can be restated here in their entirety:

Para. 3: “Allstate’s agents, acting on Allstate’s behalf, called persons using an 

automatic telephone dialing system (‘ATDS’) and repeatedly called persons who 

had registered their phone numbers on the National DNC Registry.”

Para. 19: “In placing the calls that form the basis of this Complaint, Defendant 

utilized an automatic telephone dialing system (‘ATDS’) in violation of the TCPA.”

Para. 20: “Specifically, the hardware and software used by Defendant has the 

capacity to generate and store random numbers, and/or receive and store lists of 

telephone numbers, and to dial such numbers, en masse, in an automated fashion 

without human intervention. Defendant’s automated dialing equipment also is, or 

includes features substantially similar to, a predictive dialer, meaning that it is 

capable of making numerous phone calls simultaneously and automatically 

connecting answered calls to then available callers and disconnecting the rest (all 

without human intervention).”

Paras. 34, 45: “The calls were made with an ATDS.”

Para. 58: “Defendant made the calls using equipment that had the capacity to store 

or produce telephone numbers using a random or sequential number generator, to 

receive and store lists of phone numbers, and to dial such numbers, en masse, 

without human intervention. The telephone dialing equipment utilized by 

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Defendant or its agents, also known as a predictive dialer, dialed numbers from a 

list, or dialed numbers from a database of telephone numbers, in an automatic and 

systematic manner. Defendant’s autodialer disseminated information en masse to 

Plaintiffs and other consumers.”

Para. 59: “By making the calls to Plaintiffs’ cellphones and the cellphones of 

members of the No Consent Class without their prior express consent, and by 

utilizing an automatic telephone dialing system to make those calls, Defendant 

violated 47 U.S.C. § 227(b)(1)(A)(iii).”

Not a single one of these conclusory allegations – or any other allegation in the Complaint 

– supports a claim that an ATDS was used to place any of the calls to Plaintiffs. Each and every 

allegation is a bare assertion entirely devoid of facts. For this reason alone, and as explained in 

Allstate’s Memorandum of Law in Support of its Motion and Reply, the First Cause of Action in 

Plaintiffs’ Complaint should be dismissed with prejudice. Def.’s Mem. at 6–11; Def.’s Reply at 

1–8.

III. The U.S. Supreme Court’s Opinion in Facebook v. Duguid.

Even if Plaintiffs had alleged facts in support of their conclusory statements that an ATDS 

was used to place the purported calls to Plaintiffs, the First Cause of Action alleging a violation of 

the TCPA still fails. The Supreme Court, in Facebook, clarified the TCPA’s definition of an 

autodialer. Plaintiffs’ characterizations do not meet this standard. 

The question before the Supreme Court in Facebook was whether the TCPA’s definition 

of ATDS “encompasses equipment that can ‘store’ and dial telephone numbers, even if the device 

does not ‘us[e] a random or sequential number generator.’” 141 S. Ct. at 1167. The Supreme 

Court held that it does not. Id. The Supreme Court overturned the Ninth Circuit Court of Appeals, 

which held that a device only needs to have the capacity to “store numbers to be called” and “to 

dial such numbers automatically.” Id. at 1168 (citations omitted). The Ninth Circuit agreed with 

the plaintiff, who argued that a dialing device qualifies as an ATDS if it either: (a) produces 

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numbers using a random or sequential generator; or (b) simply stores numbers, regardless of 

whether it uses a random or sequential generator to do so. The view of the Ninth Circuit and the 

plaintiff in Facebook as to what constitutes an ATDS was broader than that of the Seventh Circuit 

Court of Appeals. In Gadelhak v. AT&T Services, Inc., the Seventh Circuit held that “the phrase 

‘using a random or sequential number generator’ describes how the telephone numbers must be 

‘stored’ or ‘produced.’” 950 F.3d 458, 464, 468 (7th Cir. 2020) (adopting interpretations of the 

Third and Eleventh Circuit Courts of Appeals that “the phrase ‘using a random or sequential 

number generator’ modifies both ‘store’ and ‘produce’”) (citations omitted).

In Facebook, the Supreme Court disagreed with the Ninth Circuit and Mr. Duguid, while 

agreeing with the Seventh Circuit’s interpretation of the definition of ATDS as explained in 

Gadelhak. Specifically, the Supreme Court held that “[t]o qualify as an ‘automatic telephone 

dialing system,’ a device must have the capacity either to store a telephone number using a random 

or sequential generator or to produce a telephone number using a random or sequential number 

generator.” 141 S. Ct. at 1167; see also id. at 1169 (“Because Facebook’s notification system 

neither stores nor produces numbers ‘using a random or sequential number generator,’ it is not an 

autodialer.”); id. at 1170 (“In sum, Congress’ definition of an autodialer requires that in all cases, 

whether storing or producing numbers to be called, the equipment in question must use a random 

or sequential number generator.”) (emphasis added); id. at 1171 (“The statutory context confirms 

that the autodialer definition excludes equipment that does not ‘us[e] a random or sequential 

number generator.’”) (quoting 47 U.S.C. § 227(a)(1)(A)).

IV. Application of Facebook to Plaintiffs’ Complaint.

Even Plaintiffs’ conclusory and unsupported allegations that an ATDS was used do not 

meet the definition as clarified by the Supreme Court. For example, in Paragraph 20 of the 

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Complaint, Plaintiffs allege, in part, “[s]pecifically, the hardware and software used by Defendant 

has the capacity to generate and store random numbers, and/or receive and store lists of telephone 

numbers, and to dial such numbers, en masse, in an automated fashion without human 

intervention.” This allegation makes no mention of the requirement that a machine must “us[e] a 

random or sequential number generator.” 47 U.S.C. § 227(a)(1)(A). In that same paragraph of 

the Complaint, Plaintiffs allege that “Defendant’s automated dialing equipment also is, or includes 

features substantially similar to, a predictive dialer, meaning that it is capable of making numerous 

phone calls simultaneously and automatically connecting answered calls to then available callers 

and disconnecting the rest (all without human intervention).” Compl. ¶ 20. This characterization, 

conclusory as it is, also does not fit the definition of an ATDS. Indeed, the TCPA’s restrictions 

on autodialers does not extend to all predictive dialers, as Plaintiffs suggest here. 141 S. Ct. at 

1171 (“Expanding the definition of an autodialer to encompass any equipment that merely stores 

and dials telephone numbers would take a chainsaw to these nuanced problems when Congress 

meant to use a scalpel.”).

In only a single paragraph of the Complaint do Plaintiffs come close to defining an ATDS 

correctly, albeit without any factual allegations in support. See Compl. ¶ 58 (“Defendant made the 

calls using equipment that had the capacity to store or produce telephone numbers using a random 

or sequential number generator, to receive and store lists of phone numbers, and to dial such 

numbers, en masse, without human intervention.”). The second sentence of that same paragraph 

undermines the first sentence, however, because Plaintiffs go on to allege that the purported dialer 

is “also known as a predictive dialer,” which is expressly not an ATDS as clarified in Facebook. 

Specifically, Plaintiffs allege in conclusory fashion that an ATDS is a machine that “dial[s] 

numbers from a list, or dialed numbers from a database of telephone numbers, in an automatic and 

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systematic manner.” Id. The Supreme Court in Facebook rejected the plaintiff’s similar argument 

that Facebook’s dialer system was an ATDS, despite “capacity to dial numbers without human 

intervention.” Id. at 1173 (citations omitted). 

Plaintiffs have no factual support for their claim that an ATDS was used to place the calls 

alleged in their Complaint, so the Court should dismiss the First Cause of Action. Furthermore, 

dismissal should be with prejudice, as Plaintiffs do not appear to have any good faith, factual basis 

to plead the use of an ATDS, as clarified by Facebook. To the extent Plaintiffs suggest that they 

are entitled to discovery as to what was used to place the alleged calls, they are mistaken. As 

explained in Allstate’s Reply, Plaintiffs cannot rely on future discovery to lessen or evade their 

pleading obligations as they are limited to the allegations set forth in the Complaint. Reply at 4 

(citing cases).

It would be futile (and improper) for the Court to afford Plaintiffs an opportunity to replead 

because, as shown by Plaintiffs’ intention to seek discovery on the capacity of the purported 

system(s), there are simply no facts to support their bald assertion that an ATDS was used that 

would allow it to meet the statutory definition of ATDS as interpreted by the Supreme Court.

V. Conclusion

For the foregoing reasons, Allstate respectfully requests that the Court dismiss the First 

Cause of Action in Plaintiffs’ Complaint with prejudice and grant any other relief the Court may 

deem appropriate.

Dated: April 16, 2021

Respectfully submitted,

Allstate Insurance Company

/s/ Lewis S. Wiener

Lewis S. Wiener

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EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, N.W., Suite 700

Washington, DC 20001

Telephone: 202-383-0140

Facsimile: 202-637-3593

lewiswiener@eversheds-sutherland.com

Timothy J. McCaffrey (Bar No. 6229804)

EVERSHEDS SUTHERLAND (US) LLP

900 N. Michigan Avenue, Suite 1000

Chicago, IL 60611

Telephone: 312-535-4445

Facsimile: 312-724-9322

timmcaffrey@eversheds-sutherland.com

Francis X. Nolan, IV (pro hac vice)

EVERSHEDS SUTHERLAND (US) LLP

The Grace Building

1114 Avenue of the Americas, 40th Fl.

New York, NY 10036

Telephone: 212-389-5083

Facsimile: 212-389-5099

franknolan@eversheds-sutherland.com

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on April 16, 2021, a copy of the foregoing Defendant Allstate 

Insurance Company’s Supplemental Brief in Support of its Opposed Partial Motion to Dismiss 

Plaintiffs’ Class Action Complaint was served via ECF to the following attorneys of record:

Steven L. Woodrow 

Patrick H. Peluso 

Woodrow & Peluso, LLC 

3900 E. Mexico Avenue, Suite 300 

Denver, Colorado 80210 

Tel: 720-213-0675 

Fax: 303-927-0809 

swoodrow@woodrowpeluso.com 

ppeluso@woodrowpeluso.com

Marc E. McCallister 

Gary D. McCallister 

McCallister Law Group 

200 North LaSalle Street, Suite 2150 

Chicago, Illinois 60601 

Tel: 312-345-0611 

mem@mccallisterlawgroup.com 

gdm@mccallisterlawgroup.com 

Attorneys for Plaintiffs 

/s/ Lewis S. Wiener

Lewis S. Wiener

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