Background:

• Colin R. Brickman filed a putative class action under the TCPA against Meta for unsolicited "Birthday Announcement" text messages to cell phones.
• Brickman alleged Meta used an autodialer with a "random or sequential number generator" (RSNG) to store and/or dial consumers' telephone numbers; the phone numbers themselves were provided by users, not generated.
• The district court dismissed the claim with prejudice.
• The Ninth Circuit panel considered whether the TCPA requires the RSNG to generate the telephone numbers dialed (vs. merely determining order of dialing stored numbers).
• The panel applied Borden v. eFinancial, LLC, holding an autodialer must randomly or sequentially generate telephone numbers; under that precedent Meta did not use a TCPA-defined autodialer and the dismissal was affirmed.
• Judge VanDyke concurred, dissenting from Borden’s interpretation: he argued "number generator" is a generic computational tool, Duguid's footnote 7 supports using an RNG to order preproduced lists, "store" has independent meaning, and the majority’s reading unduly narrows TCPA coverage.

Issues:

Key Cases Cited

• Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022) (held an autodialer must generate and dial random or sequential telephone numbers)
• Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (Supreme Court construing "autodialer" and noting a generator might determine order for a preproduced list)
• United States v. Wright, 46 F.4th 938 (9th Cir. 2022) (panel precedent binds later panels under law-of-the-circuit rule)
• United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) (explaining precedential effect of published panel opinions)