July 22, 2019

July 22, 2019

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Petition for certiorari filed in Ninth Circuit TCPA case accepting broad definition of ATDS

The defendant in Marks v. Crunch San Diego has filed a petition for certiorari with the U.S. Supreme Court seeking review of the Ninth Circuit’s September 2018 decision interpreting the TCPA’s automatic telephone dialing system (ATDS) definition.

In Marks, a unanimous Ninth Circuit three-judge panel held that the TCPA’s definition of an ATDS includes telephone equipment that can automatically dial phone numbers stored in a list, rather than just phone numbers that the equipment randomly or sequentially generates.  This decision departed sharply from post-ACA International decisions by the Second and Third Circuits, which had narrowed the definition of an ATDS.  In its petition for certiorari, Crunch points to the circuit split created by the Ninth Circuit’s decision as a reason for the Supreme Court to grant its petition.

On October 3, 2018, following Marks, the FCC issued a notice asking for comment on what constitutes an ATDS.  The request was issued as a supplement to the notice that the FCC had issued in May 2018 in reaction to ACA Internationalseeking comments on several TCPA issues.  The comment period on the FCC’s October 3 notice closed on October 24.

Should the Supreme Court grant Crunch’s petition for certiorari in Marks, the FCC might wait for the Supreme Court to issue a decision before it provides any further guidance or interpretations regarding the scope of the ATDS definition.  (Conversely, the Supreme Court might prefer to wait for the FCC to weigh in.)  Another potential factor impacting the FCC’s timing is the pendency of a Supreme Court decision in PDR Network v. Carlton & Harris Chiropractic.  That case involves the TCPA prohibition on unsolicited fax advertisements.  The question the Supreme Court agreed to decide is whether the Hobbs Act precluded the district court from conducting a Chevron analysis of the FCC’s TCPA interpretation of what is a “unsolicited advertisement” and instead required it to defer to the FCC rule.  Oral argument in PDR Network is scheduled for March 25, 2019.

Copyright © by Ballard Spahr LLP


About this Author

Stephanie Jackman, Ballard Spahr, Litigation attorney

Stefanie H. Jackman devotes her practice to assisting financial services institutions facing state and federal government investigations and examinations, counseling them on complex compliance issues, as well as defending them in individual and class action lawsuits. Stefanie represents clients across the financial services industry, including banks and nonbanks, mortgage banking lenders and servicers, debt collectors and buyers, third-party service providers, medical revenue cycle service providers, credit and prepaid card companies, and auto lenders.  She regularly...

Joel Tasca financial institutions lawyer,  consumer class action attorney Ballard Spahr

Joel E. Tasca has defended banks and other financial institutions in consumer class and individual actions for over twenty years. These cases have arisen out of residential mortgage loans, credit card accounts, and an array of other consumer financial services.  Many of these suits have been brought under federal consumer protection laws such as the Fair Credit Reporting Act, the Telephone Consumer Protection Act, the Truth in Lending Act, and the Real Estate Settlement Procedures Act, as well as under state unfair, deceptive, or abusive acts and practices statutes.

Litigation against banks and other financial institutions is more prevalent than ever.  Consumer plaintiffs' attorneys have sprouted like weeds, and many have devoted themselves to an ongoing search for vulnerabilities in the business practices of financial institutions. This trend is set to increase in the future as rapid advancements in technology and an exponential increase in available consumer data usher in changes to financial institutions' business practices, and cause plaintiffs' attorneys to ponder new theories of potential liability.

In this environment, it is critical for financial institutions' outside litigation counsel to have the vision to identify vulnerable business practices up front so that clients can take action to minimize risks and avoid litigation altogether. When litigation does occur, outside counsel must approach each case with flexibility to reach fast and efficient resolution when stakes are low, and scale up to fight aggressively when stakes are high or when a message must be sent to plaintiffs and their counsel.

Areas of Practice include: 

  • Litigation. 
  • Privacy & data security. 
  • Class action litigation. 
  • Consumer financial services. 
  • Mortgage banking. 
  • Virtual currency.