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Marks v. Crunch San Diego, LLC

United States Court of Appeals for the Ninth Circuit

September 13, 2018, Resubmitted, Pasadena, California; September 20, 2018, Filed

No. 14-56834


 [*1043]  IKUTA, Circuit Judge:

Jordan Marks appeals the grant [**3]  of summary judgment to Crunch Fitness on his claim that three text messages he received from Crunch violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. The district court held that the automatic text messaging system that had sent the messages was not an automatic telephone dialing system (ATDS) under the TCPA, because it lacked the present or potential capacity "to store or produce telephone numbers to be called, using a random or sequential number generator." Id. § 227(a)(1). In light of the D.C. Circuit's recent opinion in ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (which was decided after the district court ruled), and based on our own review of the TCPA, we conclude that ] the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator. Therefore, we reverse the district court's grant of summary judgment.

By the early 1990s, telemarketing was in its golden age. Telemarketing sales had "skyrocketed to over $435 million in 1990," which was a "fourfold increase since 1984." 137 Cong. Rec. S16,971 (daily ed. June 27, 1991) (statement of Rep. Pressler). "This marketing success ha[d] created an industry in which [**4]  over 300,000 telemarketing solicitors call[ed] more than 18 million Americans every day." Id. In part, this was due to the advent of machines that "automatically dial a telephone number and deliver to the called party an artificial or prerecorded voice message." S. Rep. No. 102-178, at 2 (1991). Advertisers found these autodialers highly efficient because they could "ensure that a company's message gets to potential customers in the exact same way, every time, without incurring the normal cost of human intervention." H.R. Rep. No. 102-317, at 6 (1991). At that time, a single autodialer could cause as many as 1,000 phones to ring and then deliver a prerecorded message to each. Id. at 10.

 [*1044]  The dark side of this success story caught Congress's attention. As Senator Fritz Hollings complained, "[c]omputerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall." 137 Cong. Rec. S16,205 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings). Recipients deemed that "automated telephone calls that deliver an artificial or prerecorded [**5]  voice message are more of a nuisance and a greater invasion of privacy than calls placed by 'live' persons." S. Rep. No. 102-178, at 4. Among other reasons, "[t]hese automated calls cannot interact with the customer except in preprogrammed ways, do not allow the caller to feel the frustration of the called party" and deprive customers of "the ability to slam the telephone down on a live human being." Id. at 4 & n.3 (citation omitted). Congress also noted surveys wherein consumers responded that the two most annoying things were (1) "[p]hone calls from people selling things" and (2) "phone calls from a computer trying to sell something." H.R. Rep. No. 102-317, at 9.

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904 F.3d 1041 *; 2018 U.S. App. LEXIS 26883 **

JORDAN MARKS, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. CRUNCH SAN DIEGO, LLC, Defendant-Appellee.

Subsequent History: Motion granted by Marks v. Crunch San Diego, LLC, 2018 U.S. App. LEXIS 29772 (9th Cir. Cal., Oct. 22, 2018)

Rehearing denied by, Rehearing, en banc, denied by Marks v. Crunch San Diego, LLC, 2018 U.S. App. LEXIS 30739 (9th Cir. Cal., Oct. 30, 2018)

Stay granted by Marks v. Crunch San Diego, LLC, 2018 U.S. App. LEXIS 31745 (9th Cir. Cal., Nov. 7, 2018)

US Supreme Court certiorari dismissed by Crunch San Diego v. Marks, 2019 U.S. LEXIS 1597 (U.S., Feb. 27, 2019)

Prior History:  [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. 3:14-cv-00348-BAS-BLM. Cynthia A. Bashant, District Judge, Presiding. December 6, 2016, Argued and Submitted; December 14, 2016, Submission Vacated.

Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288, 2014 U.S. Dist. LEXIS 152923 (S.D. Cal., Oct. 23, 2014)



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Antitrust & Trade Law, Consumer Protection, Telemarketing, Civil Procedure, Appeals, Summary Judgment Review, Standards of Review, Governments, Legislation, Interpretation