CAFA Amount in Controversy Fixed at Filing—Even If Federal Claims Are Later Dismissed; Third Circuit Reaffirms Panzarella’s “Use” Requirement for TCPA ATDS Liability

Introduction

In Michael Anthony v. National Republican Congressional Committee, No. 24-3052 (3d Cir. Sept. 26, 2025) (not precedential), the Third Circuit addressed two recurring issues at the intersection of consumer protection and federal jurisdiction. First, it applied the Supreme Court’s and Third Circuit’s recent Telephone Consumer Protection Act (TCPA) jurisprudence to affirm dismissal of class claims premised on alleged use of an “automatic telephone dialing system” (ATDS) where the complaint pled only the platform’s capacity—not its actual use of a random or sequential number generator. Second, it vacated a jurisdictional dismissal of a companion Pennsylvania intrusion-upon-seclusion claim, clarifying that under the Class Action Fairness Act (CAFA), the amount in controversy is measured at the time of filing and includes all class relief sought—federal and state—regardless of later dismissals.

The plaintiff, Michael Anthony, alleged he received 62 text messages during the 2020 election season from the National Republican Congressional Committee (NRCC). He brought three counts on behalf of himself and a putative class: (1) TCPA texting without consent; (2) TCPA texting after opt-out; and (3) common-law intrusion upon seclusion under Pennsylvania law. The district court dismissed the TCPA claims with prejudice for failure to plausibly allege “use” of an ATDS and then dismissed the state-law tort for lack of subject-matter jurisdiction, finding the remaining amount in controversy too small for CAFA after the TCPA counts were gone. On de novo review, the Third Circuit affirmed the TCPA dismissal but vacated the jurisdictional dismissal of the state tort, remanding for a merits ruling under Rule 12(b)(6).

Summary of the Opinion

TCPA (Counts One and Two): Affirmed dismissal with prejudice. The panel held the complaint did not plausibly allege the use of an ATDS—that is, the actual use of a random or sequential number generator to generate numbers to be called (or a list of such numbers)—as required by the Third Circuit’s binding decision in Panzarella v. Navient Solutions, Inc., 37 F.4th 867 (3d Cir. 2022). Pleading only that the platform had the capacity to do so is insufficient. Plaintiff’s counsel conceded amendment would be futile.
CAFA Jurisdiction and the Intrusion-Upon-Seclusion Claim (Count Three): Vacated jurisdictional dismissal. The district court erred by recalculating CAFA’s amount in controversy after dismissing the TCPA claims. The correct inquiry fixes the amount at the date of filing, aggregating the class relief sought across the complaint—including the TCPA statutory damages and the state tort—making it not a “legal certainty” that the case was under $5 million.
Remand Directions. The case returns to the district court to decide the NRCC’s Rule 12(b)(6) motion on the intrusion-upon-seclusion claim. The panel flagged a pleading defect on citizenship (residency was alleged instead), which the district court may permit to be cured under 28 U.S.C. § 1653.

Detailed Analysis

Precedents and Authorities that Framed the Decision

Facebook, Inc. v. Duguid, 592 U.S. 395 (2021):
Defined an ATDS as equipment with the capacity to store or produce telephone numbers using a random or sequential number generator. Plaintiffs nationwide have attempted to argue that post-Facebook liability does not require random or sequential number generation. The Third Circuit rejected that reading two years ago and continues to do so here.
Panzarella v. Navient Solutions, Inc., 37 F.4th 867 (3d Cir. 2022):
Controlling Third Circuit precedent requiring that, to “use” an ATDS, the defendant must actually generate random or sequential numbers (or a list of them). Selecting targets from “curated” lists is not enough. The panel here applies Panzarella and underscores that a panel cannot overrule it absent en banc action (3d Cir. I.O.P. 9.1).
Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017):
Cited for the Restatement (Second) of Torts § 652B, comment d, “highly offensive” standard that often requires persistent, unwanted hounding for intrusion-upon-seclusion. The merits of that state-law claim remain to be decided on remand; the citation frames the likely Rule 12(b)(6) analysis.
Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388 (3d Cir. 2016) and St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938):
Anchor the time-of-filing rule and the “legal certainty” standard for amount in controversy. Subsequent events (like dismissals) do not reduce the amount in controversy or divest jurisdiction.
Huber v. Taylor, 532 F.3d 237 (3d Cir. 2008):
Dismissal for lack of amount in controversy is proper only if later revelations show the claims never could have met the threshold—reinforcing that post-filing developments ordinarily do not defeat jurisdiction.
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010):
Clarify that “information and belief” allegations are not entitled to the presumption of truth unless supported by other factual content allowing a reasonable inference. The panel references this to explain pleading deficiencies around ATDS “capacity,” though it ultimately decides on “use.”
Vodenichar v. Halcon Energy Properties, Inc., 733 F.3d 497 (3d Cir. 2013) and Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972):
Reiterate that diversity—whether under § 1332(a) or CAFA—turns on citizenship, not mere residency.
28 U.S.C. § 1653; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826 (1989); GBForefront, L.P. v. Forefront Mgmt. Group, LLC, 888 F.3d 29 (3d Cir. 2018):
Authorize amendment of defective jurisdictional allegations. The panel invites the district court to consider curing the “resident vs. citizen” defect on remand.

Legal Reasoning

1) TCPA’s ATDS Element—“Use,” Not Just “Capacity”

The TCPA makes it unlawful “to make any call … using any automatic telephone dialing system” to certain numbers. 47 U.S.C. § 227(b)(1)(A) (emphasis added). An ATDS is “equipment which has the capacity” to store or produce numbers using a random or sequential number generator and dial them. § 227(a)(1).

After Facebook, some litigants have argued that “capacity” alone suffices. The Third Circuit, however, drew a critical distinction in Panzarella—and applies it again here—between what the device can do and what the defendant actually did with it. To “use” an ATDS within § 227(b)(1)(A), the defendant must actually employ the random/sequential number generator to generate numbers (or a list of numbers) that are dialed. A platform that merely dials from preexisting, curated lists does not satisfy the element—even if the platform has the latent ability to generate random/sequential numbers.

Anthony’s complaint alleged, on “information and belief,” that the NRCC’s system had the capacity to generate numbers randomly or sequentially. The panel noted such allegations are an “inferior” pleading form and not automatically assumed true. But the dispositive problem was not capacity—it was the absence (and counsel’s concession of the inability to allege) use of random/sequential generation to reach him or the putative class. Given this admission, amendment would be futile; the TCPA claims were properly dismissed with prejudice.

Anthony’s reliance on Facebook could not overcome Panzarella’s binding interpretation. The panel also observed at least one judge elsewhere has read Facebook differently, but within the Third Circuit, Panzarella controls absent en banc change.

2) CAFA Amount in Controversy Is Fixed at Filing and Aggregates All Class Relief Sought

The district court dismissed the state-law intrusion-upon-seclusion claim for lack of CAFA jurisdiction after it had already dismissed the TCPA claims, reasoning that the remaining state-law damages could not exceed $5 million. The Third Circuit found this approach fundamentally flawed for two reasons:

Time-of-filing rule: Jurisdiction—especially the amount in controversy—is assessed at the moment the complaint is filed. Subsequent events, including dismissals under Rule 12(b)(6), cannot diminish the amount in controversy so as to defeat jurisdiction (Auto-Owners; St. Paul Mercury).
Aggregation across the class action as filed: For CAFA purposes, the amount in controversy covers “the matter in controversy” in the class action at filing, which here included statutory damages under the TCPA (at least $500 per violation, potentially trebled for willfulness) plus the state-law intrusion claim. Anthony plausibly alleged thousands of texts across the class; thus, it is not a “legal certainty” that the amount in controversy could not exceed $5 million at filing.

Accordingly, the panel vacated the jurisdictional dismissal and remanded for the district court to decide the merits of the intrusion claim under Rule 12(b)(6)—as long as any fixable jurisdictional pleading defects (citizenship) are cured on terms under § 1653.

3) The Intrusion-Upon-Seclusion Claim—Merits Still Open

The NRCC urged dismissal on the ground that sending text messages, even in volume, is not the kind of “highly offensive” hounding contemplated by Restatement (Second) of Torts § 652B, comment d, as adopted in Pennsylvania. The Third Circuit did not reach that merits issue. On remand, the district court will evaluate whether 62 messages, including those allegedly sent after an opt-out request, plausibly rise to actionable “hounding” under Pennsylvania law. The panel’s citation to Susinno signals the governing framework: isolated or occasional contacts generally do not suffice; persistent and unwanted intrusion which would be highly offensive to a reasonable person may.

Impact and Practical Consequences

A. TCPA Litigation in the Third Circuit

Pleading standard tightened: Plaintiffs must allege facts supporting the actual use of a random or sequential number generator—e.g., details about the dialing platform’s operations, admissions, or logs indicating random/sequential generation created the dialed list. Alleging only capacity or reliance on curated contact lists will not do.
Political/nonprofit texting campaigns: Many campaigns employ peer-to-peer or list-based platforms. Under Panzarella as reaffirmed here, such programs are generally outside § 227(b)(1)(A)’s ATDS prohibition if they do not randomly or sequentially generate numbers. Other TCPA provisions (e.g., prerecorded/artificial voice, certain Do-Not-Call provisions) may still apply, but the ATDS avenue narrows considerably.
Defense strategy: Early Rule 12(b)(6) motions targeting “use” deficiencies remain potent, especially where plaintiffs concede they cannot allege random/sequential generation. Consider declarations or judicially noticeable materials about the technology’s list-based operation.

B. CAFA Jurisdiction Across Mixed Federal/State Class Complaints

Aggregation at filing: This opinion clarifies that courts must assess CAFA’s $5 million threshold at the time of filing, aggregating all class relief sought, including federal claims later dismissed.
Jurisdictional stability: Dismissal of federal claims under Rule 12(b)(6) does not defeat CAFA jurisdiction that was proper at filing. This reduces incentives for post-dismissal jurisdictional gamesmanship and confirms that class actions anchored in federal court by CAFA will generally stay there through merits adjudication of any surviving claims.
Pleading citizenship correctly matters: The panel flags a common mistake—alleging “residency” instead of “citizenship.” Courts may permit correction under § 1653, but counsel should get this right at the outset, especially in CAFA cases.

C. The State Tort of Intrusion Upon Seclusion

Threshold remains demanding: The Restatement standard, as used by Pennsylvania courts and recognized by the Third Circuit, requires “highly offensive” intrusion often characterized by persistent, unwanted hounding. Not every barrage of texts or calls clears that bar; facts such as frequency, timing, duration, and disregard of opt-out requests can be pivotal.
Remand stakes: The district court’s forthcoming decision will contribute to the developing contours of what volume and context of text messages, especially post-opt-out, can plausibly state a claim under Pennsylvania law.

Complex Concepts, Simplified

ATDS and “use” vs. “capacity”: Think of a machine that can pick random phone numbers out of thin air. Liability hinges not just on owning such a machine, but on actually using its random-number function to decide whom to text. If you instead import a spreadsheet of known numbers and text those, you have not “used” the randomizer, even if your machine could do so.
“Information and belief” pleading: Saying “on information and belief” is weaker than alleging facts based on knowledge. Courts may discount such allegations unless other facts make them plausible.
CAFA amount in controversy: For class actions, you total the value of all the class’s claims at filing. Later events—like dismissals—do not lower that total for jurisdictional purposes.
“Legal certainty” test: The court keeps jurisdiction unless it is clear to a legal certainty the claims could not exceed the jurisdictional minimum (here, $5 million). Ambiguity typically favors retaining jurisdiction.
Citizenship vs. residency: Citizenship for diversity is about domicile (where a person lives with an intent to remain), not just where they happen to reside at the moment. Plead citizenship, not residency.
Rule 12(b)(6) and de novo review: A Rule 12(b)(6) motion tests whether the complaint plausibly states a claim. On appeal, the Third Circuit reviews such dismissals “de novo,” meaning it takes a fresh look without deference to the district court’s view of the law.

Key Takeaways

ATDS claims in the Third Circuit require alleging actual use of a random/sequential number generator. Capacity alone is not enough. Panzarella remains controlling.
CAFA jurisdiction is assessed at filing and is not undone by later dismissals. Courts must aggregate the class relief sought across the complaint at filing—including federal claims—to determine if the $5 million threshold is met.
Jurisdictional pleading precision matters. Allegations of “citizenship,” not “residency,” are required under § 1332; defects may be curable under § 1653.
Intrusion-upon-seclusion claims face a high bar. Whether 62 campaign texts, some allegedly post opt-out, meet the “highly offensive” standard is an open question left for the district court on remand.

Conclusion

Although not precedential, the Third Circuit’s decision provides two significant guideposts. On the merits, it reinforces that ATDS liability under the TCPA in this Circuit turns on the use of random or sequential number generation, not mere capability—solidifying a demanding pleading standard in list-based texting cases. On jurisdiction, it clarifies that CAFA’s amount in controversy is fixed at filing and includes all class relief pled, ensuring that federal jurisdiction, once properly invoked, is not lost simply because certain claims later fail at the pleadings stage. The remand invites a focused merits inquiry into whether repeated political texts, including those allegedly sent after opt-out, can satisfy Pennsylvania’s exacting intrusion-upon-seclusion standard, while also reminding practitioners to plead citizenship correctly to support diversity-based jurisdiction.