Borden v. eFinancial, LLC

Borden v. eFinancial, LLC

Opinion

 [*1231]  LEE, Circuit Judge:

Being deluged with "spam" telemarketing phone calls or text messages is the bane of modern life. In a world where countless companies try to capture our attention, it can be exasperating to receive yet another ping on a smartphone. Back in 1991—when the equivalent of a "smartphone" was a brick-sized phone held by the likes of Gordon Gekko—Congress enacted the Telephone Consumer Protection Act ("TCPA"). One of the purposes of the TCPA was to prevent marketers from [**3]  using "autodialing" technology to call phone numbers en masse.

Fast forward to today—and technology keeps evolving. After David Borden provided his phone number to an insurance company on a website, he began receiving marketing texts from eFinancial. Borden 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.

We hold that an "automatic telephone dialing system" must generate and dial random or sequential telephone numbers under the TCPA's plain text. The Supreme Court's recent decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 209 L. Ed. 2d 272 (2021), supports that  [*1232]  reading. eFinancial thus has not used an autodialer, and its texts to Borden do not implicate the TCPA. We thus affirm the district court's dismissal of the lawsuit.

BACKGROUND

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