The Ninth Circuit Makes it Easier to Plead Text Message TCPA Cases

As many of you already know, Facebook recently obtained a dismissal of a text message case on the ground that the texts were not sent randomly but, instead, were directed to specific users. This case (Duguid[1]) was only the most famous example of a trend that was emerging in the California district courts to dismiss text message TCPA cases unless the pleadings demonstrated the messages were sent randomly.  It was easy to think that if “randomness” was to be the new hallmark of ATDS usage then text message TCPA cases might become a thing of the past.

Not so says the Ninth Circuit.

Duguid was based in large part upon an earlier ruling out of the Central District of California in Flores v. Adir International, LLC.[2]  There, the court dismissed a plaintiff’s putative class action because he failed to plausibly allege that the defendant sent text messages using an ATDS.  In reaching this ruling, the court focused on two allegations: (1) that the texts were sent for the purpose of collecting on a specific debt; and (2) that the texts contained a specific reference number.[3]  The court found the plaintiff could not plausibly allege the use of an ATDS because his “allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an ATDS.”[4]  As a result, the case was dismissed.[5]

But in late March of this year, the Ninth Circuit issued a spartan four-paragraph opinion reversing Flores, and putting an end to this judicial trend.[6]  According to the Ninth Circuit, it doesn’t matter whether a text was sent via “direct” or “random” targeting: “dialing equipment does not need to dial numbers or send text messages ‘randomly’ in order to qualify as an ATDS under the TCPA.”[7]  Instead, courts need to examine whether there is enough pled to infer that texts were sent from “equipment [that] has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.”[8]  After all, this is the very definition of an ATDS under the TCPA.[9]  Hence, the focus is on the capacity of the equipment used to place the text messages, and not whether texts were sent “randomly.”

The reversal of Flores marks the end of the short-lived “direct targeting” defense to text-message TCPA cases.  But the opinion doesn’t come as much of a surprise considering Flores was a considerable departure from prevailing ATDS case law, and the FCC’s Omnibus approach.


[1] Duguid v. Facebook, Inc., No. 15-CV-00985-JST, 2017 WL 635117 (N.D. Cal. Feb. 16, 2017)

[2] Flores v. Adir International, LLC, No. CV1500076ABPLAX, 2015 WL 4340020 (C.D. Cal. July 15, 2015), rev’d and remanded, No. 15-56260, 2017 WL 1101103 (9th Cir. Mar. 24, 2017).

[3] Id. at *3-4.

[4] Id. at *4.

[5] Id. at *6.

[6] Flores v. Adir Int’l, LLC, No. 15-56260, 2017 WL 1101103 (9th Cir. Mar. 24, 2017).

[7] Ibid.

[8] Id. at *1.

[9] See 47 U.S.C. §227(a)(1).

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