9TH CIRCUIT APPLIES BORDEN AGAIN: Determines Facebook’s Birthday Text Messages Were Not Sent Using An ATDS

Relying on Borden v. eFinancial, LLC, the 9th Circuit recently affirmed the district court’s dismissal of a class action against Meta Platforms, Inc. (formerly Facebook, Inc.) ruling Meta did not violate the TCPA by sending unsolicited “Birthday Announcement” text messages because it did not use an autodialer that randomly or sequentially generated the telephone numbers in question.

The case is Colin Brickman v. United States of America, Meta Platforms, Inc.

In Colin, Plaintiff argued Meta (Facebook) violated the TCPA by sending unsolicited text messages using an autodialer that used an RSGN to store and dial the telephone numbers of the consumers being texted.

Plaintiff however“did not argue that the RSNG actually generated the consumers’ phone numbers (consumers provided them directly to Facebook), but that the RSNG was used to determine the order in which the phone numbers were stored and dialed, an activity that he argued implicates the TCPA.”

Meta argued that the RSNG must generate the telephone numbers.

On appeal, the majority of the 9th Circuit agreed with Borden’s holding that an ATDS must generate and dial random or sequential telephone numbers under the TCPA and so Meta did not violate the TCPA because it did not use an ATDS that randomly or sequentially generated the telephone numbers in question.

Plaintiff argued that Borden is not controlling because Borden addressed the “production” prong of the TCPA, not the “storage” prong. The Court rejected this argument holding Borden did not in fact limit its holding to the “production” prong – the Borden court instead “interpreted the definition of an auto dialer in its entirety, finding that the text and context of the TCPA ‘make clear that the number in ‘number generator’…means a telephone number, not just any number.

This yet another inevitable result following Borden — as the 9th Circuit Court pointed out “…we recognize that whether we agree or not is inconsequential because we cannot disregard an earlier published decision of this circuit [Borden] that is directly on point.

We’ll continue to keep an eye out on this — as I’ve mentioned before I believe the Supreme Court is likely to reverse Borden. But in the meantime, the defense bar will surely continue to enjoy the benefits of the Borden ruling.



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