Chicago partner Justin Kay was quoted in a recent Law360 article entitled “Ninth Circuit Heats Up TCPA Debate With Broad Autodialer Take.” The article addresses a recent Ninth Circuit decision reviving a plaintiff’s suit against Crunch San Diego LLC based on the receipt of a text allegedly delivered via an “Automatic Telephone Dialing System” (ATDS) in violation of the TCPA. Following a decision from the D.C. Circuit earlier this year vacating prior Federal Communications Commission (FCC) orders expanding the definition of an ATDS, a growing number of courts were finding that the type of system used in the Crunch case did not qualify as an ATDS, and the FCC itself appeared poised to adopt a narrower definition of what is considered an ATDS. The Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, however, expands the definition of an ATDS in significant ways, increasing the risk from and likelihood of additional TCPA lawsuits.
Justin notes in the article that the decision in Marks is “a very aggressive opinion by the Ninth Circuit, which appears to really have gone out of its way to expand the scope of the TCPA” and opines that he “think[s] it will certainly get the FCC's attention that the court has ruled this way.”
As for what will happen next, Justin believes that “[g]iven the parties involved and the importance of this case,” he “fully expect[s] that the defendant and their amici will be exploring their review options, either through an en banc Ninth Circuit panel or taking this ultimately to the Supreme Court.” Justin states that “[w]e’re likely to see a flurry of activity that's consistent with what happened when the FCC's July 2015 order came down or when folks were waiting for the D.C. Circuit's decision, where one side sought to stay any litigation and the other side pressed forward,” and that “we’re definitely likely to see the plaintiffs’ bar angling to push forward and the defense bar pushing back, saying that this isn't the last word on the issue.”
Justin also notes that the decision did include a helpful nugget: “correctly acknowledging that the D.C. Circuit wiped out everything the FCC had said about [autodialers] dating back to 2003.”