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TCPA suit against Facebook reinstated

Posted On: Jun. 14, 2019 2:08 PM CST


A federal appeals court on Thursday reinstated a putative class action lawsuit against Facebook Inc. for allegedly violating the Telephone Consumer Protection Act when it made repeated calls to a non-Facebook user, warning him of a security problem.

Noah Duguid is not a Facebook customer and has never consented to Facebook contacting his cellphone, according to the ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Noah Duguid v. Facebook Inc. and United States of America.

Nonetheless, beginning in about January 2014, Facebook began sending him sporadic text messages alerting him that “an unrecognized browser was attempting to access his (nonexistent) Facebook account,” according to the ruling. His efforts to stop the messages were unsuccessful and they continued until at least October 2014, according to the ruling.

Mr. Duguid filed suit in U.S. District Court in San Francisco charging Facebook had violated the TCPA, alleging it had sent the text messages using an automatic telephone dialing system, which is forbidden. He sought statutory damages for each message, among other actions.

The District Court dismissed the complaint, which was overturned by a unanimous three-judge appeals court panel. According to Facebook, the equipment Mr. Duguid characterizes in the amended complaint is not an ATDS but his allegations “plausibly suggest that Facebook’s equipment falls within this definition,” said the ruling, in reversing dismissal of Duguid’s amended complaint and remanding the case for further proceedings.

The ruling also rejected Facebook’s contention that the TCPA violates the First Amendment, ruling this is true only with respect to a provision related to debt collection.

Attorneys in the case had no comment or could not immediately be reached.

In April, a federal appeals court upheld a lower court ruling and said mistakenly sending faxes to companies believed to have agreed to accept them is not an “accident,” in ruling in favor of a Travelers Cos. Inc. unit that denied coverage on a TCPA claim.