GoDaddy Federal Robocall Litigation Appealed to Ninth Circuit

  • United States
  • 06/11/2018
  • Bloomberg Law

GoDaddy Inc. will have to appear before the U.S. Court of Appeals for the Ninth Circuit to again face allegations of calling mobile devices without consent in violation of a federal robocall law.

Plaintiff John Herrick claimed GoDaddy used third-party marketing provider 3Seventy Inc. to launch a text messaging campaign to customers who didn’t give consent. Herrick alleges that, under federal law, 3Seventy’s actions of receiving customer information provided by GoDaddy, and then sending text messages using an aggregator, is unlawful without consent.

The claims were brought under the Telephone Communications Privacy Act (TCPA). The federal robocall law is aimed at preventing companies from sending automated messages or calling individuals’ mobile devices without their consent. The law also aims to protect the privacy interests of consumers who receive calls to home landlines.

The U.S. District Court for the District of Arizona didn’t agree with Herrick, tossing the claims May 14. Herrick is requesting the Ninth Circuit appeals panel review his claim.

As the litigation shows, courts generally agree that companies must use automated telephone dialing systems (ATDS) to fall under the TCPA’s purview. The district court dismissed the claims because “undisputed material facts show” the company didn’t use an ATDS under the meaning of the TCPA, it said.

Specifically, the court relied on the U.S. Court of Appeals for the D.C. Circuit’s decision in ACA Int’l v. FCC (March 19), which held that the Federal Communication Commission’s definition of an autodialer was too broad. According to that decision, federal courts should look at how much effort is required to make a device an autodialer, instead of the potential capacity.

The district court found GoDaddy’s use of 3Seventy’s system wasn’t an autodialer because more than “merely” touching a button would be needed to send multiple messages. If more is needed, a company’s actions wouldn’t be an autodialer, the court wrote.

3Seventy’s system wasn’t able to store or produce numbers “to be called, using a random or sequential number generator,” the court ruled, dismissing the action.

GoDaddy is represented by Cozen O’Connor. Herrick was represented by Bock, Hatch, Lewis & Oppenheim LLC, and Kent Law Offices.

Neither party immediately responded to Bloomberg Law’s email request for comments.

The case is Herrick v. GoDaddy, LLC, 9th Cir. App., No. 16-cv-00254, appeal docketed 6/7/18.

To contact the reporter on this story: Daniel R. Stoller in Washington at

To contact the editor responsible for this story: David Mark at