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