DAVID BORDEN, individually, and on No. 21-35746 behalf of all others similarly situated, D.C. No. 2:19-cv-01430-JLR Plaintiff-Appellant,

v. OPINION EFINANCIAL, LLC, a Washington Limited Liability Company,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted July 7, 2022 Portland, Oregon Before: Ryan D. Nelson and Kenneth K. Lee, Circuit Judges, and Jed S. Rakoff,* District Judge.

Opinion by Judge Lee

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. SUMMARY ** Telephone Consumer Protection Act The panel affirmed the district court’s dismissal of an action under the Telephone Consumer Protection Act, which prohibits marketers from using “autodialing” technology to call phone numbers en masse without the consent of the recipients.

The plaintiff alleged that defendant eFinancial, LLC, used a “sequential number generator” to pick the order in which to call customers who had provided their phone numbers. The panel held that an “automatic telephone dialing system” must generate and dial random or sequential telephone numbers under the TCPA’s plain text. eFinancial thus did not use an autodialer, and its texts to the plaintiff did not implicate the TCPA. COUNSEL Shawn A. Heller (argued), Social Justice Law Collective, Dunedin, Florida; Joshua A. Glickman, Social Justice Law Collective, Overland Park, Kansas; for Plaintiff- Appellant. James G. Snell (argued), Perkins Coie LLP, Palo Alto, California, Nicola Menaldo and Anna M. Thompson, Perkins Coie LLP, Seattle, Washington; for Defendant- Appellee. Alan J. Butler, Megan Iorio, and Christopher Frascella, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center. Tara S. Morrissey and Jonathan D. Urick, United States Chamber Litigation Center, Washington, D.C.; Andrew J. Pincus, Archis A. Parasharami, and Daniel E. Jones, Mayer Brown LLP, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America. Jessica L. Ellsworth, Mark W. Brennan, Arpan A. Sura, and Johannah Walker, Hogan Lovells US LLP, Washington, D.C.; for Amicus Curiae ACA International. Michele Shuster, Mac Murray & Shuster LLP, New Albany, Ohio, for Amicus Curiae Professional Association for Customer Engagement.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LEE, Circuit Judge:

Being deluged with “spam” telemarketing phone calls or text messages is the bane of modern life. In a world where countless companies try to capture our attention, it can be exasperating to receive yet another ping on a smartphone. Back in 1991—when the equivalent of a “smartphone” was a brick-sized phone held by the likes of Gordon Gekko—Congress enacted the Telephone Consumer Protection Act (“TCPA”). One of the purposes of the TCPA was to prevent marketers from using “autodialing” technology to call phone numbers en masse.

Fast forward to today—and technology keeps evolving. After David Borden provided his phone number to an insurance company on a website, he began receiving marketing texts from eFinancial. Borden sued under the TCPA, claiming that eFinancial uses a “sequential number generator” to pick the order in which to call customers who had provided their phone numbers. He says that this type of number generator qualifies as an “automatic telephone dialing system” (of