DAVID BORDEN V. EFINANCIAL, LLC
53f4th1230
| 9th Cir. | 2022Background
- Plaintiff David Borden submitted his phone number on Progressive.com to obtain insurance quotes; a small disclaimer on the webpage referenced consent to receive offers from eFinancial, including autodialed calls or texts.
- Borden later received marketing text messages from eFinancial that he considered unsolicited.
- In his Second Amended Complaint Borden alleged eFinancial used a "sequential number generator" to determine the order of dialing from a stored list (using LeadID sequential strings) and thus employed an "automatic telephone dialing system" (autodialer) under the TCPA.
- eFinancial moved to dismiss, arguing its system did not generate telephone numbers but only selected/order preexisting customer numbers, so it is not an autodialer under the TCPA.
- The district court dismissed Borden's class action for failure to plausibly allege use of an autodialer; Borden appealed to the Ninth Circuit.
- The Ninth Circuit considered the TCPA text and the Supreme Court's decision in Facebook, Inc. v. Duguid to decide whether an autodialer must generate telephone numbers (not merely other numbers used to order calls).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether eFinancial used an "automatic telephone dialing system" under the TCPA | An autodialer need only generate some random/sequential number (e.g., to pick order) and may use non-telephone numbers to select calls from a stored list | An autodialer must have the capacity to generate random or sequential telephone numbers to be called (not just other numbers used for ordering) | The TCPA requires generation of random or sequential telephone numbers; eFinancial did not use an autodialer, so TCPA claim fails |
| Whether consent issue is resolved | Borden contends disclosure was inadequate so he did not consent | eFinancial pointed to the webpage disclaimer | Court did not reach or decide consent because it held no autodialer was used |
Key Cases Cited
- Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (autodialer must have capacity to use a random or sequential number generator to store or produce phone numbers to be called)
- Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018) (pre-Duguid precedent holding stored-number dialers could qualify as autodialers)
- Gustafson v. Alloyd Co., 513 U.S. 561 (1995) (context and surrounding text guide statutory interpretation)
- BFP v. Resolution Trust Corp., 511 U.S. 531 (1994) (legislative clarity and avoiding superfluity in statutory construction)
- Atlantic Richfield Co. v. Christian, 140 S. Ct. 1335 (2020) ("belt and suspenders" reference for interpreting statutory redundancy)
- Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895 (5th Cir. 2007) (de novo review of Rule 12(b)(6) dismissal)