DAVID BORDEN V. EFINANCIAL, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2022
• Docket: 21-35746
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID BORDEN, individually, and on No. 21-35746 behalf of all others similarly situated, D.C. No. 2:19-cv-01430-JLR Plaintiff-Appellant,

v. OPINION

EFINANCIAL, LLC, a Washington Limited Liability Company,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted July 7, 2022 Portland, Oregon

Before: Ryan D. Nelson and Kenneth K. Lee, Circuit Judges, and Jed S. Rakoff,* District Judge.

Opinion by Judge Lee

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. SUMMARY ** Telephone Consumer Protection Act 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. COUNSEL

Shawn A. Heller (argued), Social Justice Law Collective, Dunedin, Florida; Joshua A. Glickman, Social Justice Law Collective, Overland Park, Kansas; for Plaintiff- Appellant. James G. Snell (argued), Perkins Coie LLP, Palo Alto, California, Nicola Menaldo and Anna M. Thompson, Perkins Coie LLP, Seattle, Washington; for Defendant- Appellee. Alan J. Butler, Megan Iorio, and Christopher Frascella, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center.

Tara S. Morrissey and Jonathan D. Urick, United States Chamber Litigation Center, Washington, D.C.; Andrew J. Pincus, Archis A. Parasharami, and Daniel E. Jones, Mayer Brown LLP, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America. Jessica L. Ellsworth, Mark W. Brennan, Arpan A. Sura, and Johannah Walker, Hogan Lovells US LLP, Washington, D.C.; for Amicus Curiae ACA International.

Michele Shuster, Mac Murray & Shuster LLP, New Albany, Ohio, for Amicus Curiae Professional Association for Customer Engagement.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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

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

2 Court’s recent decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021),

supports that 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

David Borden decided to shop online for life insurance by seeking out

insurance quotes. He ended up on Progressive.com. To get an insurance quote,

Borden had to provide his personal information on a webpage. Below the “Next,

your rates” link on the website was a disclaimer in small, lighter text:

By pressing the button above you agree to this website’s Privacy Policy, and you consent to receive offers of insurance from Efinancial, LLC at the email address or telephone numbers you provided, including autodialed, pre- recorded calls, SMS or MMS messages. Message and data rates may apply. You recognize and understand that you are not required to sign this authorization in order to receive insurance services from eFinancial and you may instead reach us directly at (866) 912-2477.1

After clicking this link, Borden received various insurance policy options, but

he ultimately decided not to purchase any insurance from the site.

1 Borden claims that he did not knowingly consent to receive marketing messages from eFinancial because this disclosure was inadequate. Because we hold that eFinancial did not use an autodialer under the TCPA, we do not reach the question of consent.

3 Later, Borden began receiving marketing messages from eFinancial. Borden

was surprised and annoyed to receive these text messages because he thought they

were spam and did not remember agreeing to receive them.

Borden alleges in his Second Amended Complaint that eFinancial used an

autodialer to send him text messages. He claims that eFinancial “used the sequential

number generator to determine the order in which to pick the telephone numbers to

be dialed from Defendant’s stored list (database), such that each eFinancial

Insurance Text Message Advertisement is sent in an adjustable but predetermined

sequential order, which is based on the number of days since the lead form was

initially completed (‘eFinancial Mass Text Advertisement Sequential Order’).” He

also claims that eFinancial’s autodialer “also uses a sequential number generator to

assemble sequential strings of numbers in a field labeled LeadID, which are then

stored and assigned to a telephone number and are used when the sequential number

generator picks the order, which is based on the adjustable but predetermined

eFinancial Mass Text Advertisement Sequential Order.”

Borden filed this class action against eFinancial, but the district court

dismissed it, ruling that eFinancial did not use an autodialer. This appeal followed.

STANDARD OF REVIEW

This court reviews de novo the district court’s decision to grant eFinancial’s

motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Outdoor Media Grp., Inc. v.

4 City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).

ANALYSIS

Borden Does Not Plausibly Allege eFinancial Used an Autodialer as Defined in the TCPA.

The TCPA generally makes it unlawful for anyone in the United States to

make a call using an “automatic telephone dialing system” without the consent of

the recipient. 47 U.S.C. § 227(b)(1)(A). But much litigation, including this case,

surrounds the issue of what equipment qualifies as an “automatic telephone dialing

system.” Borden argues that an autodialer must merely generate some random or

sequential number during its dialing process (for example, to figure out the order to

call a list of phone numbers), and is not limited to generating telephone numbers.

eFinancial argues that an autodialer must generate random or sequential telephone

numbers to dial. Based on the TCPA’s statutory text and the Supreme Court’s recent

decision in Duguid, we hold that an autodialer must randomly or sequentially

generate telephone numbers, not just any number.

A. The TCPA requires that an autodialer randomly or sequentially generate telephone numbers, not just any numbers.

The TCPA prohibits calling telephone numbers using an autodialer in certain

cases. The TCPA defines an “automatic telephone dialing system” as:

equipment which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

5 (B) to dial such numbers.

47 U.S.C. § 227(a)(1) (emphasis added). The statutory text makes clear that the

number in “number generator” within subpart (A) means a telephone number.

First, the structure of the sentence suggests that “number generator” modifies

“telephone numbers to be called.” When interpreting a modifying clause set off by

commas, “the most natural way to view the modifier is as applying to the entire

preceding clause.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061,

1077 (2018). Here, “to store or produce telephone numbers to be called” is

dependent on the clause “using a random or sequential number generator.” This

means that “using a random or sequential number generator” modifies the phrase “to

store or produce telephone numbers to be called.” Thus, it makes the most sense

that the “number” referred to in the modified clause is the same as the “numbers” in

the dependent clause—both are referring to telephone numbers.

Second, the repeated use of “number” in the autodialer statutory definition

makes clear, through context, that it must mean a telephone number. The

definition’s first use of numbers is “telephone numbers.” 47 U.S.C. § 227(a)(1)(A).

This sets the stage and provides context for the other uses. The third and last time

that the definition uses “numbers” is referential: it defines an autodialer as equipment

with the capacity to dial “such numbers.” Id. § 227(a)(1)(B) (emphasis added). This

invocation of numbers must mean telephone numbers because it would make no

6 sense to dial the randomly generated number if it were not a telephone number. The

common understanding of the verb “to dial” in the context of a statute about phone

calls is inputting telephone numbers into a phone to make a call. It would be

illogical, or very poor legislative drafting, first explicitly to invoke phone numbers,

then next to refer to other non-telephone numbers, and then finally to go back to

phone numbers by calling them “such numbers.” A word is interpreted in the context

of the company it keeps. See Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995).

Presumably, Congress did not intend to create a confusion sandwich, and instead

used the word “numbers” to mean telephone numbers throughout the definition.

Third, the TCPA uses both “telephone number” and “number”

interchangeably throughout the statute to mean telephone number, suggesting that

in the definition section all uses of “number” mean telephone number. For example,

in the section on the Do-Not-Call Database, the statute first prohibits making a

solicitation “to the telephone number of any subscriber included in such database.”

47 U.S.C. § 227(c)(3)(F). Shortly after that, the statute explains that regulations of

the database must “specify methods for protection of the privacy rights of persons

whose numbers are included in such database.” Id. § 227(c)(3)(K). This second

subsection refers to telephone numbers because (much like it does not make sense

to dial non-telephone numbers) it makes no sense that people would have non-

telephone numbers that they would want placed in a Do-Not-Call Database.

7 And the statute again seems to use “number” as a shorthand for telephone

number when defining “caller identification service.” It defines that term as “any

service or device designed to provide the user of the service or device with the

telephone number of . . . a call . . . or text message.” Id. § 227(e)(8)(B). It then

clarifies that this “includes automatic number identification services.” It must be

that “automatic number identification services” means telephone number

identification because it would make no sense otherwise.

In sum, the text and context of the statute make clear that an autodialer must

be able to generate and dial random or sequential number phone numbers, not just

any number.

B. The Supreme Court’s decision in Duguid reinforces that an autodialer must generate telephone numbers.

The Supreme Court’s recent decision in Duguid, 141 S. Ct. 1163, underscores

that an autodialer must randomly or sequentially generate and dial a telephone

number.

To start, the Court explained that Duguid would “resolve a conflict among the

Courts of Appeals regarding whether an autodialer must have the capacity to

generate random or sequential phone numbers.” Id. at 1168 (emphasis added).

Before Duguid, some circuits held that equipment could qualify as an autodialer just

because it autodialed stored phone numbers that had not been randomly or

sequentially generated in the first instance. See, e.g., Marks v. Crunch San Diego,

8 LLC, 904 F.3d 1041, 1052 (9th Cir. 2018). But the Supreme Court rejected this

interpretation. It held that “a necessary feature of an autodialer under § 227(a)(1)(A)

is the capacity to use a random or sequential number generator to either store or

produce phone numbers to be called,” Duguid, 141 S. Ct. at 1173, because the

contrary interpretation “would capture virtually all modern cell phones, which have

the capacity to store telephone numbers to be called and dial such numbers,” id. at

1171 (quotation marks and citation omitted). Borden’s interpretation would go

against the Supreme Court’s holding and return this circuit back to the pre-Duguid

state in which “virtually all” cell phones were at risk of violating the TCPA.

The Court’s discussion of the TCPA’s policy aims also supports the view that

an autodialer must be able to generate random or sequential telephone numbers. It

noted that autodialers had “revolutionized telemarketing by allowing companies to

dial random or sequential blocks of telephone numbers automatically.” Id. at 1167

(emphasis added). Besides annoying consumers, the autodialer “threatened public

safety by ‘seizing the telephone lines of public emergency services, dangerously

preventing those lines from being utilized to receive calls from those needing

emergency services.’” Id. (quoting H.R. Rep. No. 102-317, at 24 (1991)). And it

could “simultaneously tie up all the lines of any business with sequentially numbered

phone lines.” Id.

9 But these concerns would not matter under Borden’s interpretation of the

TCPA. Using a random or sequential number generator to select from a pool of

customer-provided phone numbers would not cause the harms contemplated by

Congress. Public emergency services (such as police or fire departments) would

presumably not be in these customer-provided lists. And if an autodialer called the

phone numbers on its customer list sequentially, it would likely not reach the

sequential numbers often assigned to a single business (e.g., when a business has

many phone lines that share the same area code and the first 3-5 numbers of the

telephone number). The Court’s discussion of these risks would make no sense if

the autodialer definition were not tailored to equipment capable of sequential or

random generation of telephone numbers.

Borden’s argument hinges on his interpretation of Footnote 7 in Duguid: he

argues that it shows that an autodialer can generate a non-telephone number to

determine the order in which to call telephone numbers from a premade list. The

full text of Footnote 7 is:

Duguid argues that such a device would necessarily “produce” numbers using the same generator technology, meaning “store or” in § 227(a)(1)(A) is superfluous. “It is no superfluity,” however, for Congress to include both functions in the autodialer definition so as to clarify the domain of prohibited devices. BFP v. Resolution Trust Corporation, 511 U.S. 531, 544, n. 7, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994). For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. It would then store those numbers to be dialed at a later time. See Brief for Professional Association for Customer Engagement et al. as Amici Curiae 19. In any event, even if the storing and

10 producing functions often merge, Congress may have “employed a belt and suspenders approach” in writing the statute. Atlantic Richfield Co. v. Christian, 590 U. S. ––––, ––––, n. 5, 140 S.Ct. 1335, 1350, n. 5, 206 L.Ed.2d 516 (2020).

Id. at 1172 n.7. Borden seizes on this sentence: “an autodialer might use a random

number generator to determine the order in which to pick phone numbers from a

preproduced list.” Id. He argues that this is exactly what eFinancial did.

But this is an acontextual reading of a snippet divorced from the context of

the footnote and the entire opinion. See, e.g., Hufnus v. DoNotPay, Inc., 2021 WL

2585488, at *1 (N.D. Cal. June 24, 2021) (rejecting similar reading of Duguid’s

footnote). Much like we do not interpret a statute by cherry-picking one word out

of it, we should not pluck one sentence out of an opinion without looking at its

context. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 167 (2012) (“Context is a primary determinant of meaning . . . . The

entirety of the document thus provides the context for each of its parts.”). Borden’s

myopic focus on a single sentence in a footnote—hardly a holding—ignores the

broader context discussed by the Court, including how the Court itself characterized

the issue as “whether an autodialer must have the capacity to generate random or

sequential phone numbers.” Duguid, 141 S. Ct. at 1168 (emphasis added).

In reality, Footnote 7 merely addressed how an autodialer could both “store”

and “produce” telephone numbers without rendering those two terms superfluous.

The Court cited an amicus brief describing patents on technology that “used a

11 random number generator to store numbers to be called later (as opposed to using a

number generator for immediate dialing).” Id. at 1172 n.7 (citing Brief for

Professional Ass’n for Consumer Engagement et al. as Amici Curiae (“PACE

Duguid Br.”) at 15-21). As detailed in Footnote 7, while the Court illuminated the

space between the concepts of “store” and “produce,” it also recognized that

“Congress may have employed a belt and suspenders approach in writing the

statute.” Id. (internal quotation marks and citation omitted).

Nothing in the opinion suggests that the Court intended to define an autodialer

to include the generation of any random or sequential number. Indeed, the amicus

brief by PACE cited by the Court disproves Borden’s reading: the “numbers from a

preproduced list” mentioned by PACE were themselves randomly or sequentially

generated telephone numbers. PACE Duguid Br. 19. This differentiates the PACE

amicus brief’s example from the preproduced list of phone numbers used by

eFinancial in which the telephone numbers were provided by customers. And it

suggests that the Court, in writing Footnote 7, just like the drafters of the TCPA,

used the common shorthand “numbers” to mean “telephone numbers.”

CONCLUSION

While we all wish for fewer calls and messages from marketers, we are limited

to the bounds of the TCPA. We AFFIRM.