Loyhayem v. Fraser Financial & Insurance Services, Inc., No. 20-56014 (9th Cir. 2021)Annotate this Case
Loyhayem filed suit under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(A)–(B), which prohibits robocalls to cellphones except for emergency purposes or with the prior express consent of the called party. Loyhayem received a call to his cell phone that left a pre-recorded voicemail message: Hi, this is Don with Fraser Financial... I recently saw your industry experience and I wanted to let you know that we’re looking to partner with select advisors ... I thought you might be a fit.” Loyhayem characterized this call as a “job recruitment call,” and alleged that it was made using an automated telephone dialing system and an artificial or pre-recorded voice and that he did not expressly consent to calls from Fraser.
The district court dismissed Loyhayem’s suit, holding that the TCPA and the implementing regulation do not prohibit job-recruitment robocalls. The court read the Act as prohibiting robocalls to cell phones only when the calls include an “advertisement” or constitute “telemarketing,” as those terms have been defined by the FCC. The Ninth Circuit reversed. The statute prohibits in plain terms “any call,” regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice. Loyhayem adequately alleged that the call he received was not made for emergency purposes and that he did not expressly consent to it.
Court Description: Telephone Consumer Protection Act. The panel reversed the district court’s dismissal for failure to state a claim of an action alleging violation of the Telephone Consumer Protection Act in a job-recruitment “robocall” made to plaintiff’s cell phone. The panel held that the prohibition in the Act and its implementing regulation, 47 C.F.R. § 64.1200, against robocalls to cell phones is not limited to calls that include an advertisement or constitute telemarketing. The panel concluded that plaintiff’s allegations sufficed to survive a motion to dismiss, and it therefore reversed and remanded.