Brickman v. Facebook, Inc.

Background

Colin R. Brickman brought a class action alleging that Facebook violated the Telephone Consumer Protection Act of 1991 by using an “automatic telephone dialing system” to send unauthorized birthday-announcement text messages to consumers’ cell phones. The case was stayed while the Supreme Court considered the meaning of that term in Facebook, Inc. v. Duguid.

After Duguid, Judge Orrick required Brickman to seek permission to amend and to show that a proposed Second Amended Complaint could plausibly allege that Facebook used an automatic telephone dialing system. Facebook was allowed to argue that amendment would be futile, meaning that the proposed allegations would still not state a legally sufficient claim.

The Parties’ Positions

Brickman alleged that Facebook first identified the telephone numbers of a Facebook user’s friends from lists that users had provided. He alleged that Facebook then used a random or sequential number generator to store those numbers in a random or sequential order and later sent large batches of birthday messages using that order. He acknowledged that users had provided the numbers but alleged that he and the proposed class members had not consented to receiving Facebook’s texts.

Facebook argued that the proposed allegations did not satisfy Duguid because the telephone numbers were selected from an existing list rather than generated randomly or sequentially. Facebook also objected to the court’s consideration of an expert declaration submitted in support of the proposed amendment, although the court resolved the motion based on the allegations and supporting materials relevant to the motion.

Court’s Analysis

Duguid held that an automatic telephone dialing system must have the capacity to store a telephone number using a random or sequential number generator or to produce a telephone number using such a generator. The Supreme Court rejected the earlier Ninth Circuit approach, under which a system could qualify merely because it could store numbers to be called and automatically dial them.

Judge Orrick followed several district court decisions interpreting Duguid to require that the telephone number called itself be created or generated through a random or sequential number generator. He concluded that using an algorithm to arrange telephone numbers drawn from an existing list did not meet that requirement. Even accepting Brickman’s allegations about how Facebook selected, stored, and sent the messages, the numbers were pulled from a preexisting list and were not randomly or sequentially generated.

Ruling and Next Steps

Judge Orrick held that Brickman had not plausibly alleged that Facebook used a prohibited automatic telephone dialing system after Duguid. He therefore denied Brickman’s motion for leave to file the proposed Second Amended Complaint as futile. In the conclusion, the court again stated that the motion for leave to file the proposed complaint was denied.

The order did not state that the case was dismissed. Instead, it directed the parties to meet and confer about how the litigation should proceed, including whether Facebook should formally seek judgment or whether the parties could stipulate to a judgment while preserving Brickman’s right to appeal. The parties were ordered to report on those discussions within a week of the order.