On November 16, 2022, the Ninth Circuit Court of Appeals ruled: Borden v. E-Financial, LLC2022 WL 16955661 (9th Cir. November 17, 2022), following the landmark Supreme Court ruling of November 17, 2022, made a potential decision regarding the definition of an automatic telephone dialing system (“ATDS”). I closed the door in obscurity. Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021). The Ninth Circuit Court of Appeals ruled that an “automatic telephone dialing system” must be produced. phone Randomly or sequentially number under TCPA plaintext. This means that dialing a number from an existing list does not dial using ATDS, even if the existing list is sorted randomly or sequentially.
of Bodenplaintiffs alleged that eFinancial “used” [a] A sequential number generator for determining the order in which telephone numbers to dial are selected from a stored list (database) of defendants. This will send each eFinancial insurance text message ad in an adjustable but pre-determined order based on number.days since [a] The lead form was completed first (“eFinancial Mass Text Advertisement Sequential Order”). Plaintiff also states that eFinancial’s autodialer “uses a sequential number generator to assemble a string of sequential numbers in a field labeled LeadID, which is stored and assigned to a telephone number and used by the sequential number generator.” is used when selecting an order.” Based on an adjustable but pre-determined eFinancial Mass Text Advertisement Sequential Order.
The court ruled that using random numbers or sequential number generators to select “from a pool of customer-provided phone numbers” would not cause the harm intended by Congress. The court elaborated:[p]Public emergency services (such as police and fire departments) are probably not on these customer-provided lists. Also, if the autodialer calls phone numbers in a customer list in sequence, it may not reach consecutive numbers that are often assigned to a single business (for example, the same area code and the first three phone If your business has many phone lines that share numbers). 5 numbers in the phone number).
Specifically, the Court of Appeals for the Ninth Circuit held that plaintiffs’ footnote 7 Facebook We have presented a viable angle for TCPA plaintiffs to move forward. Borden grabbed this sentence in the footnote. He claimed that E-financial did just that — using a generator to select phone numbers from a list. The Court of Appeals for the Ninth Circuit held that this was “a non-contextual interpretation of a snippet taken out of the context of the footnote and the opinion as a whole” and that “Boden’s short-sighted focus on a single sentence in the footnote is largely Rather than retain, it ignores the broader context discussed by. This includes how the court itself characterized the issue as “whether an autodialer must have the ability to generate random or sequential phone numbers.” ”
In short, the Ninth Circuit Facebook suggests that the Supreme Court intended to define autodialers to include anything other than devices that randomly or sequentially generate phone numbers.
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