BORDEN APPLIED: famous tcpa case involving botox call to actions dismissed due to a lack of atds usgage

So I’m on an airplane clacking this out on my phone. Apologies for any turbulent reading. 🙂

Well the Summit is wrapped up and I will have a post mortem up in a bit. Super good time.

In the meantime however there is lots of tcpa news to report. Even if it means I need to blog from my phone on an airplane 🙂

First up is Weisbien v Allergan. This was a case we discussed quite a bit at the summit from the perspective of both personal liability-allergans executives were personally named in the suit- and with regard to obtaining consent via call to action displays- allergen’s commercials asking folks to text “save” to a shortcode were deemed insufficient to create express written consent.

But the ultimate conclusion of the case turned on the recent Borden decision and the courts determination that at atds was not used to send the message. Here was the analysis:

“Defendants argue that the text messages at the center of the dispute were not sent using an ATDS because the telephone numbers to which the automated texts are sent are not generated by an ATDS, but rather are provided by the consumer when they text “SAVE” to the short code number. Indeed, it is undisputed that the telephone numbers of consumers who text “SAVE” to the short code number are then stored with Epsilon..

Plaintiff acknowledges consumers’ telephone numbers are not randomly or sequentially generated and are instead “captured” when consumers text “SAVE” to the short code number. However, Plaintiff argues that the Epsilon Messaging Application stores consumers’ phone numbers using “sequential identifiers and in sequential order by date and time,” [id.], and when the time comes to send automated text messages, the Epsilon system does so “in sequential order based on date and time from their list of captured phone numbers.” According to Plaintiff, Defendants used an ATDS because they “created the list of numbers based on system-generated sequential identifiers and in sequential order by date and time.” In other words, Plaintiff’s argument is that Defendants use a sequential number generator to generate, not telephone numbers, but “sequential identifiers” that are correlated with the consumer-provided phone numbers.

Plaintiff’s argument is similar to the argument the Ninth Circuit rejected in Borden, where the plaintiff unsuccessfully argued that the defendant’s autodialer used a sequential number generator to determine the order in which to pick phone numbers from a database of phone numbers. Borden, 2022 WL 16955661, at *1, 3. As the Ninth Circuit explicitly stated, an ATDS must randomly or sequentially generate telephone numbers, not an identifier to select phone numbers from a database of phone numbers provided by customers. Id. at *2. Here, Plaintiff’s argument that Defendants used a sequential number generator to generate a sequential identifier, and not a phone number, similarly fails.

Defendants have successfully demonstrated there is no dispute of material fact that the system used to send the automated text messages does not randomly or sequentially generate telephone numbers. And Plaintiff does not argue otherwise or present evidence to the contrary. The automated text messaging system thus does not qualify as an ATDS under the TCPA , see Facebook, 141 S. Ct. at 1170; Borden, 2022 WL 16955661, at *2, and Defendants cannot, as a matter of law, be liable for violating Section 227(b)(1)(A) of the TCPA . Therefore, summary judgment must be granted in favor of Defendants on both of Plaintiff’s TCPA claims. Moreover, because summary judgment in favor of Defendants resolves the entire action, the Court need not reach Defendants’ additional arguments in their summary judgment motion.”

This result was inevitable following Borden. As I explained at the summit the Ninth circuit re wrote the TCPAs ATDS (again) in Borden, this time to hold only a randomly produced TELEPHONE number triggers the TCPA. That’s great for folks in the Ninth Circuit footprint but it’s not what the US Supreme Court held in Facebook. So this may end up being another big tcpa trap.


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