9th Circuit Further Narrows Meaning of ATDS Under the TCPA

The 9th Circuit U.S. Court of Appeals, in its Nov. 16 decision in Borden v. eFinancial (docket 21-35746), “embraced the holding” of the Supreme Court in its Facebook v. Duguid 2021 ruling, narrowly interpreting the meaning of an automatic telephone dialing system under the Telephone Consumer Protection Act, “and did not rely on an arguable ambiguity in Facebook to avoid its implications,” said Sheppard Mullin in a Nov. 20 analysis. Consumer David Borden sued eFinancial in a putative TCPA class action, alleging eFinancial used a “sequential number generator” to pick the order in which to call consumers who had provided their phone numbers, Sheppard Mullin said. Borden claimed eFinancial’s equipment generated a sequential string of numbers, which were then stored and assigned to a customer’s telephone number. Borden said a footnote in the Supreme Court’s Facebook decision supported his position when it said an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. The district court dismissed his case, ruling eFinancial didn't use an ATDS. On appeal, the 9th Circuit affirmed, saying an ATDS must randomly or sequentially generate telephone numbers, not just any number as Borden argued. “The ongoing litigation over the meaning of ATDS demonstrates that companies should still do what they can to ensure they are obtaining prior express consent before making auto-dialed calls or text messages,” said the law firm.