World421_EL_03

Can you please let me know if we are likely to succeed in getting a TCPA class action against SLL dismissed through a Rule 12 motion? Give me a brief explanation (in one or two sentences) and let me know what argument is the most effective for pursuing any such motion in our case. Please also tell me what alternative defence is most likely to succeed if we were to go forward without any Rule 12 motions.

No, it is not likely that a TCPA class action against SLL will be dismissed through a motion pursuant to rule 12 of the Federal Rules of Civil Procedure (a "rule 12 motion"). 

Rule 12 motions challenge the allegations underlying the class action prior to discovery or establishing factual findings, whereas the main defences applicable to SLL will require evidentiary support (e.g., establishing SLL obtained prior express written consent of class members) and are typically resolved through summary judgment. 

If we pursue a rule 12 motion, the most effective argument would be to argue that the plaintiff's complaint failed to state a claim (i.e. a motion pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure) because SLL’s practices do not fall under the purview of the TCPA, on the basis that text messages are not “telephone calls” (See Jones v. Blackstone Medical Services, LLC, 2025 WL 2042764 (C.D. Ill. July 21, 2025)) or that SLL’s technology is not an “Automatic Telephone Dialing System” (See Facebook, Inc. v. Duguid, 592 U.S. 395 (2021)).

If we were to go forward without any rule 12 motions, the best alternative defense (i.e. most likely to succeed) based on SLL’s TCPA compliance efforts and internal policies is to establish that SLL obtained prior express written consent of class members.