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Settlement Reached in Marks v. San Diego Crunch Litigation; Supreme Court Petition Withdrawn

The parties in the Marks v. San Diego Crunch litigation have reached a settlement, officially ending one of the most watched TCPA cases and denying the Supreme Court an opportunity to weigh in on the definition of an automatic telephone dialing system (“ATDS”).

In Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), the Ninth Circuit held that a “web-based marketing platform designed to send promotional text messages to a list of stored telephone numbers” counts as an ATDS.  That is, the ability to communicate automatically from a stored list of numbers, even without employing a random or sequential number generator, may trigger TCPA liability.  Marks was one of the first major court decisions examining the definition of an ATDS since the D.C. Circuit invalidated much of the FCC’s prior interpretations.  

Other lower court decisions yielded competing views on what counts as an ATDS. Numerous courts, including the Third Circuit and the District Court for the Northern District of Illinois, have rejected the Ninth Circuit’s broad interpretation, which deviates from a more natural reading of the law requiring the use of a random or sequential number generator (and not merely reference to a stored list of numbers).

With the cert petition now withdrawn, it seems that—at least for the foreseeable future—litigants in TCPA actions will unfortunately continue to experience uncertainty and unpredictability.

Mark RooneyTCPA, ATDS