February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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TCPAWORLD AFTER DARK: Why the Ninth Circuit’s Borden Ruling Might be the BIGGEST TCPA TRAP Of All Time

So while you folks (hopefully) all enjoy a lovely social agenda this evening the Czar is about to start another major project for a client.

Before I did though I reached out to Queenie to catch up on a few things and she asked me an interesting question:

“Does the Czar think the Supreme Court is likely to reverse Borden v. Efinancial, LLC2022 WL 16955661 (9th Cir. Nov. 16, 2022)?’

-Queenie, Nov. 18, 2022.

At first I chuckled but then, one of those long slow Czar-epiphanies took hold.

That’s exactly what’s going to happen.

Of course it would.


-Czar, Nov., 18, 2022

Remember this blog, folks.

In Marks the Ninth Circuit re-wrote the statute to take out the words “random or sequential number generation.”

In Borden the Ninth Circuit re-wrote the statute to reinterpret what an ROSNG is.

In essence Borden converts an ROSNG into a ROSTNG where the stands for telephone:

But this is literally inconsistent with the U.S. Supreme Court’s chosen interpretation.

The Supreme Court held that the use of an ROSNG (not an ROSTNG) to STORE telephone numbers triggers the TCPA.

So.. Borden got it wrong.

And of course Queenie detected that right away and it took my big dumb Czar brain three days to figure this out. (I think wearing this crown might be killing brain cells.)

Then again, most other law firms haven’t even reported on Borden, much less its impact, much less analyzed whether it was incorrectly decided, much less what that impact might be, so… #lookforthelion

Back on track here, this is exactly the sort of delicious irony TCPAWorld enjoys dishing up.

Supreme Court strikes down Ninth Circuit in Marks for being too anti-robocall. Then Supreme Court strikes down Ninth Circuit in Borden for being too anti-anti-robocall.

Porridge too hot. Porridge too cold.

Of course that’s what’s going to happen. And in the meantime folks in the Ninth Circuit will start feeling confident to use autodialers without consent.


And, of course it is. How many times has TCPAWorld seemingly given rope, just to let folks hang themselves. And here we are again. You’d think I’d be able to see this coming by now.

It is NOT safe to go back in the water. Do NOT abandon human selection. Yes, it will take a few years but I do NOT think Borden is the final word on this subject. So LOOK OUT.

You’ve been warned.

Much love TCPAWorld.

(Just two more work days until Monday! :))

© 2023 Troutman FirmNational Law Review, Volume XII, Number 323

About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...