Duane Morris Class Action Review - 2023 - Report - Page 366
reaffirmed that it was bound by Bais Yaakov Of Spring Valley, et al. v. FCC, 852 F.3d
1078 (D.C. Cir. 2017), which invalidated the Federal Communications Commission’s
2006 Solicited Fax Rule requiring business to include opt-out notices on solicited fax
advertisements (the Junk Fax Prevention Act of 2005 only requires businesses to
include opt-out notices on unsolicited fax advertisements and such a requirement did
not authorize the FCC to issue a similar requirement on solicited fax advertisements).
The Second Circuit explained that Congress “drew a line in the text of the [TCPA]
between unsolicited fax advertisements and solicited fax advertisements,” and that
distinguishing between solicited and unsolicited faxes in this case would require
individualized fact finding. Id. at *3. The Second Circuit further affirmed that the
defendant offered the plaintiff more than it stood to recover on its individual TCPA claim
and because the defendant provided complete relief, the district court was correct to
enter judgment in the plaintiff’s favor, despite its disagreement.
G.
Appellate Decisions Upholding Dismissal Of TCPA Claims
In affirming the dismissal of a TCPA action, the Ninth Circuit in Borden, et al. v.
eFinancial, LLC, 2022 U.S. App. LEXIS 31613 (9th Cir. Nov. 16, 2022), observed that
“being deluged with ‘spam’ telemarketing phone calls or text messages is the bane of
modern life.” In addition to describing telemarketing calls or text messages as the “bane
of modern life,” the Ninth Circuit also stated that “it can be exasperating to receive yet
another ping on a smartphone.” Id. at *2. In Borden, the plaintiff shopped online for life
insurance by seeking out insurance quotes. When on one insurer’s website, the plaintiff
was required to provide personal information in order to obtain an insurance quote.
Below the “Next, your rates” link on the website was a disclaimer in small, lighter text
stating:
“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, prerecorded 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.”
Id. at *4. After clicking this link, the plaintiff received various insurance policy options,
but he ultimately decided not to purchase any insurance from the site. The plaintiff then
began receiving text messages from eFinancial, and the plaintiff was annoyed because
he did not recall agreeing to receive these types of messages. The plaintiff filed a class
action and asserted that eFinancial used the sequential number generator to determine
the order in which to pick the telephone numbers to be dialed from the defendant’s store
list/database. The district court dismissed the action by granting the defendant’s motion
to dismiss on the grounds that eFinancial was not an autodialer. On appeal, the Ninth
Circuit noted that the TCPA requires that an autodialer must be able to generate and
dial randomly or sequentially telephone numbers, not just any numbers. It opined that
that Facebook, et al. v. Duguid, 141 S. Ct. 1163 (2021), underscores that an autodialer
must have the capacity to generate random or sequential telephone numbers, not
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Duane Morris Class Action Review – 2023
