DAVID BORDEN V. EFINANCIAL, LLC, No. 21-35746 (9th Cir. 2022)
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After Plaintiff provided his phone number to an insurance company on a website, he began receiving marketing texts from eFinancial. Plaintiff sued under the TCPA, claiming that eFinancial uses a “sequential number generator” to pick the order in which to call customers who had provided their phone numbers. He says that this type of number generator qualifies as an “automatic telephone dialing system” (often colloquially called an “autodialer”) under the TCPA. But eFinancial responds that it does not use an autodialer. eFinancial argues that the TCPA defines an autodialer as one that must generate telephone numbers to dial, not just any number to decide which pre-selected phone numbers to call.
The Ninth Circuit affirmed the district court’s dismissal. The panel held that an “automatic telephone dialing system” must generate and dial random or sequential telephone numbers under the TCPA’s plain text. eFinancial thus did not use an autodialer, and its texts to Plaintiff did not implicate the TCPA.
Court Description: The panel affirmed the district court’s dismissal of an action under the Telephone Consumer Protection Act, which prohibits marketers from using “autodialing” technology to call phone numbers en masse without the consent of the recipients. The plaintiff alleged that defendant eFinancial, LLC, used a “sequential number generator” to pick the order in which to call customers who had provided their phone numbers. The panel held that an “automatic telephone dialing system” must generate and dial random or sequential telephone numbers under the TCPA’s plain text. eFinancial thus did not use an autodialer, and its texts to the plaintiff did not implicate the TCPA.
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