Pino v. Cardone Capital, LLC

Plain English (For Everyone)

If you receive unwanted text messages, you might think you have a case under the TCPA. However, a recent court ruling clarifies that you must specifically prove the sender used a special type of "automatic dialing system" that randomly or sequentially generates numbers. Simply receiving texts isn't enough; you need to show the system's specific capabilities.

For Legal Practitioners

The Ninth Circuit affirmed dismissal of a TCPA class action, holding that plaintiffs failed to adequately plead the use of an Automatic Telephone Dialing System (ATDS). The court reiterated that conclusory allegations are insufficient; plaintiffs must allege specific facts demonstrating the system's capacity to store numbers and dial them randomly or sequentially, consistent with *Facebook, Inc. v. Duguid*.

For Law Students

This case illustrates the heightened pleading standard for TCPA claims involving ATDS. Plaintiffs must move beyond mere allegations of unsolicited texts and provide factual support for the system's capacity to generate numbers randomly or sequentially, as required by *Duguid* and Rule 12(b)(6).

Newsroom Summary

A federal appeals court sided with a company accused of sending unwanted texts, ruling that plaintiffs didn't provide enough evidence that the company used a specific type of automatic dialing system. The decision emphasizes the need for concrete proof of the system's capabilities beyond just receiving the messages.

Standard of Review

De novo review. The Ninth Circuit reviews de novo a district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). This means the appellate court examines the complaint and the law independently, without deference to the lower court's decision.

Procedural Posture

The case reached the Ninth Circuit on appeal from the United States District Court for the Southern District of Florida, which had dismissed the plaintiffs' class action complaint. The dismissal was based on the plaintiffs' alleged failure to state a claim upon which relief could be granted, specifically regarding violations of the Telephone Consumer Protection Act (TCPA).

Burden of Proof

The plaintiffs, as the party bringing the lawsuit, bore the burden of proof to establish a prima facie case for their claims. To survive a motion to dismiss, they needed to plead sufficient facts to plausibly suggest that Cardone Capital violated the TCPA. The standard required them to show that the messages were sent using an "automatic telephone dialing system" (ATDS).

Legal Tests Applied

Statutory References

Key Legal Definitions

Rule Statements

To state a claim under the TCPA, a plaintiff must allege facts demonstrating that the defendant used an ATDS.

Allegations that a defendant sent unsolicited text messages, without more, are insufficient to plead the use of an ATDS.

A system must have the present capacity to dial telephone numbers using a random or sequential number generator to qualify as an ATDS.

Conclusory allegations that a defendant used an ATDS, without supporting factual details, do not meet the plausible pleading standard.

Remedies

Affirmed the district court's dismissal of the class action lawsuit.

Attorneys

• Daniel B. Collins
• Michael J. Piuze
• David M. Geneson
• William G. Coffin

Scenario: You are receiving frequent, unwanted marketing text messages from a company, and you believe they are using an automatic system to send them.

Your Rights: You have the right to not receive unsolicited marketing texts sent using an automatic telephone dialing system (ATDS) without your prior express consent under the TCPA.

What To Do: If you wish to sue under the TCPA, consult with an attorney specializing in TCPA litigation. Be prepared to provide detailed evidence not only of the messages received but also specific facts suggesting the sender's system has the capacity to store numbers and dial them randomly or sequentially.

Is it legal to send unsolicited text messages?

Depends. It is generally illegal to send unsolicited commercial text messages using an automatic telephone dialing system (ATDS) or an artificial/prerecorded voice without prior express consent under the TCPA. However, sending non-commercial messages or messages with consent, or without using an ATDS, may be permissible.

This applies nationwide under federal law (TCPA), but state laws may also impose additional restrictions.

For Consumers receiving unsolicited text messages

Consumers face a higher bar to sue under the TCPA. They must now provide specific factual allegations about the sender's dialing system's capabilities, rather than just alleging receipt of unwanted texts, to survive a motion to dismiss.

For Businesses sending text messages

Businesses are better protected from TCPA lawsuits at the pleading stage if plaintiffs cannot adequately allege the use of an ATDS. However, they must still ensure compliance with consent requirements and avoid using systems that meet the ATDS definition.

Q: What is Pino v. Cardone Capital, LLC about?

Pino v. Cardone Capital, LLC is a case decided by Ninth Circuit on June 10, 2025.

Q: What court decided Pino v. Cardone Capital, LLC?

Pino v. Cardone Capital, LLC was decided by the Ninth Circuit, which is part of the federal judiciary. This is a federal appellate court.

Q: When was Pino v. Cardone Capital, LLC decided?

Pino v. Cardone Capital, LLC was decided on June 10, 2025.

Q: What is the citation for Pino v. Cardone Capital, LLC?

The citation for Pino v. Cardone Capital, LLC is 139 F.4th 1102. Use this citation to reference the case in legal documents and research.

Q: What is the main reason the court dismissed the TCPA lawsuit in Pino v. Cardone Capital?

The court dismissed the lawsuit because the plaintiffs failed to adequately plead that Cardone Capital used an 'automatic telephone dialing system' (ATDS). Simply alleging receipt of unsolicited texts was not enough; specific facts about the system's capabilities were required.

Q: Is Pino v. Cardone Capital, LLC published?

Pino v. Cardone Capital, LLC is a published, precedential opinion. Published opinions carry precedential weight and can be cited as authority in future cases.

Q: What was the ruling in Pino v. Cardone Capital, LLC?

The court ruled in favor of the defendant in Pino v. Cardone Capital, LLC. Key holdings: The court held that to establish a claim under the TCPA for unsolicited text messages, plaintiffs must plausibly allege that the messages were sent using an "automatic telephone dialing system" (ATDS) as defined by the statute.; The Ninth Circuit affirmed the dismissal because the plaintiffs' complaint did not contain sufficient factual allegations to plausibly infer that Cardone Capital's dialing equipment met the statutory definition of an ATDS, which requires the capacity to store telephone numbers to be called or to dial such numbers randomly or sequentially.; The court rejected the plaintiffs' argument that merely sending a text message to a cell phone number was sufficient to establish ATDS use, emphasizing the need for specific allegations about the dialing equipment's capabilities.; The Ninth Circuit applied the plausibility standard for pleading, requiring more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action."; The court found that the plaintiffs' allegations regarding the ATDS were conclusory and lacked the factual support necessary to move the case beyond the pleading stage..

Q: What precedent does Pino v. Cardone Capital, LLC set?

Pino v. Cardone Capital, LLC established the following key holdings: (1) The court held that to establish a claim under the TCPA for unsolicited text messages, plaintiffs must plausibly allege that the messages were sent using an "automatic telephone dialing system" (ATDS) as defined by the statute. (2) The Ninth Circuit affirmed the dismissal because the plaintiffs' complaint did not contain sufficient factual allegations to plausibly infer that Cardone Capital's dialing equipment met the statutory definition of an ATDS, which requires the capacity to store telephone numbers to be called or to dial such numbers randomly or sequentially. (3) The court rejected the plaintiffs' argument that merely sending a text message to a cell phone number was sufficient to establish ATDS use, emphasizing the need for specific allegations about the dialing equipment's capabilities. (4) The Ninth Circuit applied the plausibility standard for pleading, requiring more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." (5) The court found that the plaintiffs' allegations regarding the ATDS were conclusory and lacked the factual support necessary to move the case beyond the pleading stage.

Q: What are the key holdings in Pino v. Cardone Capital, LLC?

1. The court held that to establish a claim under the TCPA for unsolicited text messages, plaintiffs must plausibly allege that the messages were sent using an "automatic telephone dialing system" (ATDS) as defined by the statute. 2. The Ninth Circuit affirmed the dismissal because the plaintiffs' complaint did not contain sufficient factual allegations to plausibly infer that Cardone Capital's dialing equipment met the statutory definition of an ATDS, which requires the capacity to store telephone numbers to be called or to dial such numbers randomly or sequentially. 3. The court rejected the plaintiffs' argument that merely sending a text message to a cell phone number was sufficient to establish ATDS use, emphasizing the need for specific allegations about the dialing equipment's capabilities. 4. The Ninth Circuit applied the plausibility standard for pleading, requiring more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." 5. The court found that the plaintiffs' allegations regarding the ATDS were conclusory and lacked the factual support necessary to move the case beyond the pleading stage.

Q: What cases are related to Pino v. Cardone Capital, LLC?

Precedent cases cited or related to Pino v. Cardone Capital, LLC: Universal City Studios, Inc. v. Corley, 273 F.3d 429 (9th Cir. 2001); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Gadelhak v. AT&T Mobility Services LLC, 981 F.3d 772 (9th Cir. 2020).

Q: What does 'automatic telephone dialing system' (ATDS) mean in the context of the TCPA?

Under the TCPA and clarified by the Supreme Court, an ATDS is a system that has the present capacity to store telephone numbers using a random or sequential number generator, or to dial such numbers. It requires more than just the ability to dial from a list.

Q: Do I need to prove the sender used an ATDS to win a TCPA case?

Yes. Proving the use of an ATDS is a key element for most TCPA claims related to calls or texts to cell phones. The court in Pino v. Cardone Capital emphasized that this element must be plausibly pleaded with specific facts.

Q: What is the 'plausible pleading standard' mentioned in the ruling?

The plausible pleading standard requires plaintiffs to provide enough factual details in their complaint to make their claim seem possible, not just a theoretical possibility. It means going beyond general statements and offering specific allegations.

Q: How does the ruling in Pino v. Cardone Capital affect TCPA lawsuits?

It reinforces the requirement for plaintiffs to plead specific facts demonstrating the use of an ATDS. This makes it harder for plaintiffs to proceed with TCPA claims based solely on conclusory allegations of receiving unsolicited messages.

Q: What specific statute was at issue in this case?

The primary statute at issue was the Telephone Consumer Protection Act (TCPA), specifically 47 U.S.C. § 227(b)(1)(A)(iii), which addresses restrictions on using automatic telephone dialing systems.

Q: Did the court consider any constitutional issues?

No, the provided summary does not indicate that any constitutional issues were raised or decided in this specific ruling.

Q: Are there any exceptions to the TCPA rules?

Yes, the TCPA has exceptions, such as when the recipient provides prior express consent, or for certain non-commercial calls. However, the core issue in this case was the definition and pleading of an ATDS.

Q: How long do I have to file a TCPA lawsuit?

TCPA claims generally have a statute of limitations of four years from the date the violation occurred. However, it's crucial to consult with an attorney as specific circumstances can affect this deadline.

Q: Does this ruling apply to robocalls (prerecorded voice calls)?

The TCPA also covers artificial or prerecorded voice calls. While this specific case focused on ATDS and text messages, the principle of needing specific factual allegations to state a claim applies broadly to TCPA violations.

Q: Can I get damages if I win a TCPA case?

Yes, if successful, TCPA violations can result in statutory damages, typically $500 per violation, which can be trebled to $1,500 per violation if the violation was willful or knowing. The court affirmed dismissal, so no damages were awarded here.

Q: Can I sue a company just because I received unwanted text messages?

Not necessarily. While receiving unwanted texts can be annoying, to succeed in a TCPA lawsuit, you typically need to show the texts were sent using an ATDS without your consent. The Pino v. Cardone Capital case highlights that this specific proof is required.

Q: What kind of evidence do I need to show an ATDS was used?

You need factual allegations demonstrating the system's capacity to store numbers and dial them randomly or sequentially. This could involve details about the technology used, rather than just stating that an ATDS was employed.

Q: If I want to file a TCPA lawsuit, what should I do?

Consult with an attorney experienced in TCPA litigation. They can advise you on whether you have sufficient factual allegations to meet the pleading standards, especially regarding the use of an ATDS, and guide you through the legal process.

Q: What if the company claims they didn't use an ATDS, just a regular phone?

If a company claims they didn't use an ATDS, the burden is on the plaintiff to provide specific facts suggesting otherwise to meet the pleading standard. The court will look at the alleged capabilities of the system used, not just the company's assertion.

Q: What is the takeaway for businesses sending texts?

Businesses should ensure they have clear, express consent from recipients and understand the definition of an ATDS. Documenting consent and the technology used can help defend against potential TCPA claims.

Q: What is the significance of the *Facebook, Inc. v. Duguid* case mentioned?

The *Facebook, Inc. v. Duguid* case, decided by the Supreme Court, clarified the definition of an ATDS. The Pino v. Cardone Capital court relied on this definition, emphasizing that an ATDS must have the present capacity to dial numbers randomly or sequentially.

Q: What is the history of the TCPA?

The TCPA was enacted by Congress in 1991 to address increasing consumer complaints about unsolicited telemarketing calls and faxes. It aimed to protect privacy and prevent telephone harassment.

Q: What was the docket number in Pino v. Cardone Capital, LLC?

The docket number for Pino v. Cardone Capital, LLC is 23-3512. This identifier is used to track the case through the court system.

Q: Can Pino v. Cardone Capital, LLC be appealed?

Potentially — decisions from federal appellate courts can be appealed to the Supreme Court of the United States via a petition for certiorari, though the Court accepts very few cases.

Q: What was the procedural posture of the Pino v. Cardone Capital case?

The case was an appeal to the Ninth Circuit after a district court dismissed the plaintiffs' class action lawsuit for failing to state a claim under the TCPA, specifically regarding the alleged use of an ATDS.

Q: What is the standard of review the Ninth Circuit used?

The Ninth Circuit reviewed the district court's dismissal de novo. This means they examined the legal issues and the complaint independently, without giving deference to the lower court's decision.