October 18, 2018

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Defendant in Marks v. Crunch San Diego, LLC Asks Ninth Circuit for Rehearing En Banc

As we previously reported here, the court in Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) recently expanded the definition of “automatic telephone dialing system,” at least within the Ninth Circuit. And in response, the FCC issued a Public Notice just last week (covered here) seeking further comment on how to interpret the ATDS definition in light of Marks. The comment period closes on October 24, 2018.

But the Marks decision is not necessarily final. On October 4, 2018, the defendant, Crunch San Diego, LLC, filed a Petition for Rehearing En Banc, thus asking a larger group of Ninth Circuit judges to rehear the appeal. A copy of the Petition is available here. Notably, Crunch San Diego, LLC argues that the three-judge panel’s prior decision “must be reconsidered because it interprets—and effectively rewrites—the [TCPA] in a manner that directly conflicts with the statutory text, legislative history, and binding intra-circuit and persuasive inter-circuit authority from the Third and D.C. Circuits regarding the definition of an [ATDS].”

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About this Author

Matthew J. Adler, attorney, Drinker Bilddle, San Francisco, healthcare, telecommunications
Associate

Matthew J. Adler represents clients across a broad range of industries, including health care, retail and telecommunications. He focuses his practice on complex commercial disputes, multi-state consumer class actions and product liability litigation. Matt has litigated cases in state and federal court, at both the trial and appellate level, and he is particularly skilled in pre-trial motion practice.

Matthew is a regular on the firm's Associates Committee and a regular contributor to Drinker Biddle’s Telephone Consumer...

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