Loyhayem v. Fraser Financial: A Robocall Doesn't Have to Sell Anything to Break the Law

The voicemail

Jonathan Loyhayem got a prerecorded voicemail on his cell phone that went roughly like this: "Hi, this is Don with Fraser Financial. It's a Mass Mutual Company. I recently saw your industry experience," followed by a pitch to partner with "select advisors" in Los Angeles and a callback number.

He called it a job recruitment call, alleged it used an autodialer and a prerecorded voice, and said he never consented. The Central District of California dismissed the case. Its reasoning: the Federal Communications Commission (FCC) rule only bans robocalls to cell phones when they involve advertising or telemarketing, and Loyhayem admitted this call didn't.

What the Ninth Circuit said

Judge Watford wrote a short and sweet opinion for the panel.

The statute says "any call." The cell phone provision bans "any call" made with an autodialer or an artificial or prerecorded voice, unless it's for emergency purposes or made with the called party's prior express consent. Content doesn't matter.

The regulation says the same thing. The FCC rule has two layers. Paragraph (a)(1) covers all robocalls to cell phones and requires prior express consent, either oral or written. Paragraph (a)(2), added in 2012, requires prior express written consent for the subset that involves advertising or telemarketing. The district court read (a)(2) as shrinking the whole rule to marketing calls only. Wrong. The FCC added (a)(2) to tighten consent for marketing calls, and said it was keeping the existing consent rule for informational calls.

So because the call wasn't an emergency and Loyhayem said he didn't consent orally or in writing, his complaint survived. Reversed and remanded.

Why it matters

Many businesses use prerecorded messages for recruiting, appointment reminders, surveys and account notices. This case says all of those need prior express consent when they go to cell phones, at least where the statute's dialing or prerecorded voice elements are met.

It's also a neat companion to the Fifth Circuit's 2026 ruling in Bradford v. Sovereign Pest Control, which held the statute only requires prior express consent, oral or written, even for telemarketing calls. Both courts read the statute's plain words. They just faced different questions.

Takeaways

1. "It's not marketing" isn't a defense to a robocall claim.
2. Get consent before any prerecorded call to a cell phone, whatever the purpose.
3. For marketing calls, the FCC rule still asks for written consent, and the Fifth Circuit is so far the outlier, so get it in writing.
4. Keep records of how and when each person gave you their number.

General information only, not legal advice.

Read the Ninth Circuit's opinion in Loyhayem v. Fraser Financial.