FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLIN R. BRICKMAN, individually No. 21-16785
and on behalf of a class of similarly
situated individuals, D.C. No. 3:16-
cv-00751-WHO
Plaintiff-Appellant,
v. OPINION
UNITED STATES OF AMERICA,
Intervenor-Appellee,
META PLATFORMS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted October 21, 2022
San Francisco, California
Filed December 21, 2022
2 BRICKMAN V. META PLATFORMS, INC.
Before: Ronald Lee Gilman, * Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Gilman;
Concurrence by Judge VanDyke
SUMMARY **
Telephone Consumer Protection Act
The panel affirmed the district court’s dismissal with
prejudice of Colin R. Brickman’s class action against Meta
Platforms, Inc. (Meta) under the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. § 227, which generally
bans calls made to a telephone if the call is generated by an
“automated telephone dialing system,” commonly referred
to as an “autodialer”.
The TCPA defines an autodialer as a piece of equipment
with the capacity “to store or produce telephone numbers to
be called, using a random or sequential number generator”
(an RSNG), and “to dial such numbers.”
Brickman argued that Meta violated the TCPA by
sending unsolicited “Birthday Announcement” text
messages to consumers’ cell phones; he alleged that these
text messages were sent by Meta through an autodialer that
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRICKMAN V. META PLATFORMS, INC. 3
used an RSNG to store and dial the telephone numbers of the
consumers being texted. He did not argue that the RSNG
actually generated the consumers’ phone numbers
(consumers provided them directly to Facebook), but that the
RSNG was used to determine the order in which the phone
numbers were stored and dialed, an activity that he argued
implicates the TCPA. Meta argued that the TCPA-defined
RSNG must actually generate the phone numbers in the first
instance.
The question on appeal is whether a TCPA-defined
autodialer must use an RSNG to generate the telephone
numbers that are dialed. Another panel of this court
answered this exact question in Borden v. eFinancial, LLC,
53 F.4th 1230 (9th Cir. 2022), holding that "an [autodialer]
must generate and dial random or sequential telephone
numbers under the TCPA's plain text." The panel therefore
held that Meta did not violate the TCPA because it did not
use a TCPA-defined autodialer that randomly or sequentially
generated the telephone numbers in question.
Judge VanDyke concurred because the panel’s decision
is boxed in by Borden, but he disagrees with Borden because
it wrongly concludes that the word “number” means the
same thing in all instances where it appears in TCPA’s
definition of an autodialer. Borden’s interpretation of
autodialer overlooks that the phrase “random or sequential
number generator” has a known meaning as a computational
tool which is not limited to generating phone numbers, as the
Supreme Court acknowledged in Facebook, Inc. v. Duguid,
141 S. Ct. 1163, 1172 n.7 (2022), and to interpret the statute
as Borden did removes any independent meaning for the
word “store” from the TCPA’s definition of an autodialer,
thereby cutting the legs out from under the Supreme Court’s
interpretive rationale in Duguid.
4 BRICKMAN V. META PLATFORMS, INC.
COUNSEL
Patrick J. Perotti (argued) and Frank A. Bartela, Dworken &
Bernstein Co. LPA, Painesville, Ohio; Andrea R. Gold and
Hassan A. Zavareei, Tycko & Zavareei LLP, Washington,
D.C.; Sabita J. Soneji, Tycko and Zavareei LLP, Oakland,
California; for Plaintiff-Appellant.
Lindsey Powell, United States Department of Justice,
Washington, D.C., Intervenor-Appellee.
Samir Deger-Sen (argued) and Peter Trombly, Latham &
Watkins LLP, New York, New York; Andrew B. Clubok,
Susan E. Engel, and Gregory B. in den Berken, Latham &
Watkins LLP, Washington, D.C.; Elizabeth L. Deeley and
Melanie M. Blunschi, Latham & Watkins LLP, San
Francisco, California; for Defendant-Appellee.
Andrew J. Pincus, Archis A. Parasharami, and Daniel E.
Jones, Mayer Brown LLP, Washington, D.C.; Tara S.
Morrissey, Jonathan D. Urick, and Janet Galeria, United
States Chamber Litigation Center, Washington, D.C., for
Amicus Curiae The Chamber of Commerce of the United
States of America.
Michele A. Shuster, Mac Murray & Shuster LLP, New
Albany, Ohio, for Amicus Curiae Professional
Association for Customer Engagement.
BRICKMAN V. META PLATFORMS, INC. 5
OPINION
GILMAN, Circuit Judge:
This case arises from the district court’s dismissal with
prejudice of Colin R. Brickman’s class-action claim under
the Telephone Consumer Protection Act (TCPA), 47 U.S.C.
§ 227, against Meta Platforms, Inc. (Meta), formerly known
as Facebook, Inc. Enacted in 1991, the TCPA generally bans
calls made to a telephone if the call is generated by an
“automatic telephone dialing system” (commonly referred to
as an “autodialer”). Id. § 227(b)(1)(A). The TCPA defines
an autodialer as a piece of equipment with the capacity “to
store or produce telephone numbers to be called, using a
random or sequential number generator” (an RSNG), and “to
dial such numbers.” Id. § 227(a)(1)(A).
Brickman argues that Meta violated the TCPA by
sending unsolicited “Birthday Announcement” text
messages to consumers’ cell phones. He alleges that these
Birthday Announcements were sent by Meta through an
autodialer that used an RSNG to store and dial the telephone
numbers of the consumers being texted. He does not argue
that the RSNG actually generated the consumers’ phone
numbers (consumers provided them directly to Facebook),
but that the RSNG was used to determine the order in which
the phone numbers were stored and dialed, an activity that
he argues implicates the TCPA. Meta disagrees with
Brickman’s interpretation of the autodialer provision,
arguing that a TCPA-defined RSNG must actually generate
the phone numbers in the first instance.
The question on appeal is whether a TCPA-defined
autodialer must use an RSNG to generate the telephone
numbers that are dialed. During our consideration of this
6 BRICKMAN V. META PLATFORMS, INC.
matter, another panel of this court answered this exact
question in Borden v. eFinancial, LLC, 53 F.4th 1230 (9th
Cir. 2022), holding that “an [autodialer] must generate and
dial random or sequential telephone numbers under the
TCPA’s plain text.” Id. at 1231 (emphasis in original).
Borden resolves the sole issue in this case. We therefore
hold that Meta did not violate the TCPA because it did not
use a TCPA-defined autodialer that randomly or sequentially
generated the telephone numbers in question.
Brickman argues to the contrary, contending that Borden
does not control the outcome because “Borden addressed the
‘production’ prong of § 227(a)(1)(A), not the ‘storage’
prong at issue here.” But Borden did not in fact limit its
holding to the production prong. The court instead
interpreted the definition of an autodialer in its entirety,
finding that the text and context of the TCPA “make[] clear
that the number in ‘number generator’ . . . means a telephone
number.” Borden, 53 F.4th at 1233 (emphasis in original).
This is true regardless of whether the numbers are stored or
produced—either way, “an autodialer must randomly or
sequentially generate telephone numbers, not just any
number.” Id. at 1232 (emphasis in original). Borden
therefore clearly controls this case.
For what it is worth, the majority of the present panel
agrees with the analysis in Borden. But we recognize that
whether we agree or not is inconsequential because we
cannot disregard an earlier published decision of this circuit
that is directly on point. See United States v. Wright, 46
F.4th 938, 946 (9th Cir. 2022) (“[W]here a panel confronts
an issue germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit.” (quoting
United States v. McAdory, 935 F.3d 838, 843 (9th Cir.
BRICKMAN V. META PLATFORMS, INC. 7
2019))).
We therefore AFFIRM the judgment of the district
court.
VANDYKE, Circuit Judge, concurring:
I concur because, as the majority opinion correctly
observes, our decision here is boxed in by circuit precedent.
See Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir.
2022). But I disagree with our precedent because it wrongly
concludes that the word “number” means the same thing in
all instances where it appears in the TCPA’s definition of an
autodialer. Specifically, Borden decided that a “random or
sequential number generator” in the definition must mean a
“random or sequential phone number generator” because the
other times that the word “number” is used in the definition
clearly refer to a phone number. Compare id. at 1233
(“[T]he repeated use of ‘number’ in the autodialer statutory
definition makes clear, through context, that it must mean a
telephone number.”), with 47 U.S.C. § 227(a)(1)(A) (“[An
autodialer] has the capacity—to store or produce telephone
numbers to be called, using a random or sequential number
generator.”). There are several problems with this
conclusion.
First, Borden’s analysis overlooks that the phrase
“random or sequential number generator” has a known
meaning as a computation tool, and there is no reason to
ignore or modify that meaning just because the phrase is
used in relation to a particular application. It is of course
true that a phone number is comprised of numbers just as a
wooden chair is made of wood. But it does not follow that a
8 BRICKMAN V. META PLATFORMS, INC.
“random or sequential number generator” in the TCPA’s
autodialer definition must be limited to a tool that produces
only telephone numbers, any more than a reference to a
“wood lathe” in instructions on how to build a wooden chair
must mean a wood lathe only used to make chairs. The
reason is simple and the same in both examples: a generic
“wood lathe” used for a variety of woodworking tasks works
just fine to produce wooden chair legs, and a “random
number generator” that can produce anything from single
digit numbers to zip codes to telephone numbers can produce
random telephone numbers. Just as the term “wood lathe”
in a chair-building instruction manual would naturally mean
the tool that normally goes by the name “wood lathe,” so too
the term “random number generator” in a statutory provision
about telephones would presumably mean the computational
tool that normally goes by the name “random number
generator.”
This natural meaning of the term “random or sequential
number generator” is easily illustrated by the Supreme Court
decision that Borden says supports its conclusion, Facebook,
Inc. v. Duguid, 141 S. Ct. 1163 (2022). Like the TCPA, the
Duguid decision is saturated in discussion about telephones.
But in footnote 7, Duguid says: “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.” Id. at 1172
n.7 (emphasis added). Does the phrase “random number
generator” in the first sentence quoted above refer to a
“random telephone number generator?” Of course not. And
that is true even though the next use of the word “number”
in the very same sentence clearly is a reference to a telephone
number. The word “number” in the phrase “random number
generator” doesn’t mean “telephone number” in either
BRICKMAN V. META PLATFORMS, INC. 9
Duguid’s footnote 7 or the TCPA’s definition of an
autodialer, and the reason is the same in both instances: a
random (or sequential) number generator is a term of art
referring to a particular type of computation tool that can be
used to generate all types of different numbers, from
telephone numbers to zip codes to a sequence of
consecutively ordered numbers (e.g., 1, 2, 3, … or 2, 4, 6,
…). The fundamental interpretive assumption underlying
the Borden decision is just wrong.
Second, the conclusion that Borden reaches based on its
erroneous starting point ultimately nullifies the significance
of the word “store” in the clause “store or produce,” by
sneaking the term “produced” back into the relative clause,
redefining an autodialer as equipment that can
“store … telephone numbers to be called, [which are
produced] using a random or sequential [telephone] number
generator.” 47 U.S.C. § 227(a)(1)(A). That renders “store”
superfluous, since the definition already covers telephone
numbers that are “produced … using a random or sequential
number generator.” And because the relative clause in the
definition presumably means the same thing with regard to
both “store” and “produce,” Borden’s interpretation also
oddly rewrites the statute to redundantly say “produce
telephone numbers to be called, [which are produced] using
a random or sequential [telephone] number generator.” Id.
This misinterpretation of the definition of autodialer
does not just mangle the text’s meaning. It also fails to
recognize the importance of Duguid’s footnote 7 to the
Supreme Court’s entire textual analysis in that case. The
interpretive quandary presented in Duguid was whether
“using a random or sequential number generator” refers back
to both “produce” and “store.” The reason this is a hard
question is because, assuming the relative clause referred
9
10 BRICKMAN V. META PLATFORMS, INC.
back to both words, what could “store … telephone numbers
to be called, using a random or sequential number generator”
possibly mean? If that phrase was meaningless, then that
would be a strong textual argument against the interpretation
adopted by the Supreme Court. But the Court in footnote 7
explained that it wasn’t meaningless, because “an autodialer
might use a random number generator to determine the order
in which to pick phone numbers from a preproduced list.”
Duguid, 141 S. Ct. at 1172 n.7 (emphasis added). Where the
preproduced list originally came from is irrelevant; the
whole point of footnote 7 was that a random or sequential
number generator might also be used to determine the “order
in which to pick” existing telephone numbers, regardless of
how they were generated. Because the Court was trying to
show that “store” had independent meaning from “produce,”
it would have made no sense in making that demonstration
to implicitly rely on the fact that the list was randomly
produced.
By removing any independent meaning for “store” from
the TCPA’s definition of autodialer, our court in Borden has
silently cut the legs out from under the Supreme Court’s
interpretive rationale in Duguid. Footnote 7 was essential to
the holding of Duguid because it harmonizes the definition
of an autodialer to make sense of both “store” and
“produce.” Instead of following the logic of Duguid, our
court in Borden strays from Duguid’s rationale by
effectively waving away footnote 7 as ancillary rather than
crucial to Duguid’s analysis, dismissing the key sentence in
footnote 7 as merely “a snippet divorced from the context of
the footnote and the entire opinion.” See Borden, 53 F.4th
at 1235.
Third, there is no substance to the fear expressed by both
Facebook in this case and our court in Borden that actually
BRICKMAN V. META PLATFORMS, INC. 11
giving meaning to the Supreme Court’s interpretation in
Duguid’s footnote 7 could turn every cell phone into an
autodialer simply because cell phones store phone numbers.
See id. at 1234 (“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.”). To implicate the TCPA, a
“random or sequential number generator” must be used to
store numbers in a “random or sequential” order for the
purpose of automatically calling them in that order. While
I suppose one might be able to find a smartphone app that
can do that—searching the app store using the term
“autodialer” might be a good place to start—that’s not how
an ordinary cell phone works. A cell phone could only
violate the TCPA if it deployed an application that
automatically stored telephone numbers in a “random or
sequential order” for the purpose of sequentially calling
them in that order, unaided by the human dialer.
Finally, by not acknowledging the broader purposes of
the TCPA, our court in Borden overlooked the extent to
which the complained-of conduct falls within the TCPA’s
prohibitions. Id. at 1234. While Borden emphasized
legislative history showing that legislators were concerned
about automatic sequential dialing that could dangerously
interfere with the use of emergency service telephone lines
and overwhelm sequentially numbered business lines, it
minimized the fact that legislators were likewise concerned
with the nuisance to other commercial and residential
consumers who had been “receiving unsolicited calls from
automatic dialer systems.” H. R. Rep. No. 102–317, p. 24
(1991); see also Duguid, 141 S. Ct. at 1167 (“Autodialers
could reach cell phones, pagers, and unlisted numbers,
inconveniencing consumers and imposing unwanted fees.”).
11
12 BRICKMAN V. META PLATFORMS, INC.
If the TCPA targeted only automated calls to emergency
services and businesses with multiple phone lines, that is
what it would say.