9th Circ. Saves Gym TCPA Suit After DC Circ. Ruling

By Dave Simpson

Law360 (September 20, 2018, 9:01 PM EDT) — The Ninth Circuit on Thursday revived a proposed class action accusing gym chain Crunch San Diego LLC of spamming members’ cellphones with promotional text messages, finding that a recent D.C. Circuit decision led to an expanded definition of an autodialer under the Telephone Consumer Protection Act.

In October 2014, U.S. District Judge Cynthia Bashant granted Crunch summary judgment, tossing the suit from Jordan Marks after finding that the gym chain’s textmunication system didn’t qualify as an autodialer – as it would have needed to in order to show violations of the TCPA – because it lacked a random or sequential number generator and didn’t have the ability to add that feature.

But in Thursday’s unanimous, published decision, the three-judge panel reversed the ruling and remanded the case to the district court after reviewing the D.C. Circuit’s March decision in ACA International v. FCC ,which struck down the Federal Communications Commission’s definition of an autodialer and strict conditions for calling reassigned numbers while upholding consumers’ broad leeway to revoke consent.

With the FCC’s autodialer definition vacated, the panel turned to the statutory definition set forth by Congress in 1991, when the TCPA was created. While it found the statutory language to be “ambiguous,” it noted that Congress intended to regulate devices that make automatic calls.

“Although Congress focused on regulating the use of equipment that dialed blocks of sequential or randomly generated numbers – a common technology at that time – language in the statute indicates that equipment that made automatic calls from lists of recipients was also covered by the TCPA,” the panel said.

Filed in February 2014, Marks’ proposed class action accused Crunch of violating the TCPA by sending him three unsolicited promotional text messages advertising specials on membership prices or personal training rates from November 2012 to October 2013. He sought to represent a nationwide class of consumers who had received the unwanted messages from Crunch.

Ultimately, the panel decided that the TCPA defined an autodialer as equipment that has the capacity “to store numbers to be called or to produce numbers to be called, using a random or sequential number generator – and to dial such numbers.”

In dismissing the suit with prejudice, Judge Bashant had said that Marks’ definition of an autodialer would cast too wide of a net.

“Because these modern-day devices are easily programmable, anyone who uses a computer or smartphone would be subject to the TCPA,” she said in the ruling. “It seems unlikely that Congress intended to subject such a wide swath of the population to a law designed to combat unwanted and excessive telemarketing.”

Marks appealed that decision, and the Ninth Circuit set it aside until the D.C. Circuit made its decision in ACA International v. FCC.

U.S. Circuit Judges Consuelo M. Callahan, Carlos T. Bea and Sandra S. Ikuta sat on the panel for the Ninth Circuit.

Marks is represented by Abbas Kazerounian of Kazerouni Law Group APC. Crunch is represented by Ian Ballon of Greenberg Traurig LLP.

The case is Jordan Marks v. Crunch San Diego LLC, case number 14-56834, in the U.S. Court of Appeals for the Ninth Circuit.

–Additional reporting by Allison Grande and Caroline Simson. Editing by Breda Lund.

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