In Weisbein v. Allergan, Inc., No. 8:20-cv-00801-SSS-ADSx, 2022 U.S. Dist. LEXIS 217844, at *4-7 (C.D. Cal. Dec. 2, 2022), Judge Sykes granted summary judgment to a TCPA defendant in text message class action.
The crux of Plaintiff’s claims is that Defendants sent automated text messages that violated the TCPA, specifically § 227(b)(1)(A) of the TCPA, which prohibits calls made using an ATDS.3 The Supreme Court has clarified that in order for equipment to qualify as an ATDS under the meaning of the TCPA, it “must use a random or sequential number generator.” Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170, 209 L. Ed. 2d 272 (2021). The Ninth Circuit further clarified that an ATDS “must randomly or sequentially generate telephone numbers, not just any number.” Borden v. eFinancial, LLC, No. 21-35746, 2022 U.S. App. LEXIS 31613, 2022 WL 16955661, at *2 (9th Cir. Nov. 16, 2022) (emphasis in original). Defendants argue that the text messages at the center of the dispute were not sent using an ATDS because the telephone numbers to which the automated texts are sent are not generated by an ATDS, but rather are provided by the consumer when they text “SAVE” to the short code number. Indeed, it is undisputed that the telephone numbers of consumers who text “SAVE” to the short code number are then stored with Epsilon. [SUF ¶ 13]. Plaintiff acknowledges consumers’ telephone numbers are not randomly or sequentially generated and are instead “captured” when consumers text “SAVE” to the short code number. [Dkt. 157 at 14]. However, Plaintiff argues that the Epsilon Messaging Application stores consumers’ phone numbers using “sequential identifiers and in sequential order by date and time,” [id.], and when the time comes to send automated text messages, the Epsilon system does so “in sequential order based on date and time from their list of captured phone numbers.” [Dkt. 157 at 15]. According to Plaintiff, Defendants used an ATDS because they “created the list of numbers based on system-generated sequential identifiers and in sequential order by date and time.” [Id. at 15 (emphasis added)]. In other words, Plaintiff’s argument is that Defendants use a sequential number generator to generate, not telephone numbers, but “sequential identifiers” that are correlated with the consumer-provided phone numbers. Plaintiff’s argument is similar to the argument the Ninth Circuit rejected in Borden, where the plaintiff unsuccessfully argued that the defendant’s autodialer used a sequential number generator to determine the order in which to pick phone numbers from a database of phone numbers. Borden, 2022 U.S. App. LEXIS 31613, 2022 WL 16955661, at *1, 3. As the Ninth Circuit explicitly stated, an ATDS must randomly or sequentially generate telephone numbers, not an identifier to select phone numbers from a database of phone numbers provided by customers. 2022 U.S. App. LEXIS 31613, [WL] at *2. Here, Plaintiff’s argument that Defendants used a sequential number generator to generate a sequential identifier, and not a phone number, similarly fails. Defendants have successfully demonstrated there is no dispute of material fact that the system used to send the automated text messages does not randomly or sequentially generate telephone numbers. And Plaintiff does not argue otherwise or present evidence to the contrary. The automated text messaging system thus does not qualify as an ATDS under the TCPA, see Facebook, 141 S. Ct. at 1170; Borden, 2022 U.S. App. LEXIS 31613, 2022 WL 16955661, at *2, and Defendants cannot, as a matter of law, be liable for violating Section 227(b)(1)(A) of the TCPA. Therefore, summary judgment must be granted in favor of Defendants on both of Plaintiff’s TCPA claims. Moreover, because summary judgment in favor of Defendants resolves the entire action, the Court need not reach Defendants’ additional arguments in their summary judgment motion.