Crunch TCPA Class Action Lawsuit May Rebound

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November 24, 2014

TelecommunicationsLast month, the United States District Court for the Southern District of California dismissed a putative class action filed against Crunch San Diego, LLC (“Crunch”) under the Telephone Consumer Protection Act (“TCPA”), ruling that Crunch did not use an autodialer to send promotional text messages.  On Wednesday, the named plaintiff filed a motion for reconsideration, asking the Court to reverse its decision in the TCPA class action.

The TCPA Putative Class Action Lawsuit

Marks v. Crunch San Diego, LLC, Case No. 14-cv-348 (S.D. Cal.), involved allegations that the popular gym chain Crunch violated the TCPA for sending unwanted promotional text messages. Crunch’s motion for summary judgment in the TCPA class action was granted on the grounds that Crunch did not use an “automated telephone dialing system,” or autodialer, to transmit promotional text messages to its members or prospective members.  In rendering its decision, the Court analyzed commentary published by the Federal Communications Commission (“FCC”), which broadly interpreted the definition of autodialer and focused on the equipment’s capacity to generate numbers and dial them without human intervention.  As we reported, the Court held that the FCC analysis is not binding on courts, as the FCC does not have the statutory authority to change the TCPA’s definition of an autodialer (contrary to the rulemaking authority granted to the FCC under different provisions of the TCPA).

Rebound? Plaintiff’s Motion for Reconsideration

In his motion for reconsideration, the named plaintiff argued, among other things, that the Court could not disregard or invalidate any final order of the FCC because only the Ninth Circuit Court of Appeals has such authority under the Administrative Orders Review Act, more commonly known as the Hobbs Act.  The plaintiff maintained that had the Court followed the FCC’s 2003 and 2008 rulings involving autodialers, the Court would have found that Crunch used an autodialer and had, therefore, violated the TCPA.  The plaintiff cited two District Court cases in sister jurisdictions that did not follow FCC final orders and later were overturned.  Should the Court grant the plaintiff’s most recent motion, the putative TCPA class action against Crunch will proceed.

Crushing TCPA Actions

As we have repeatedly advised, it is important to understand the nuances of the TCPA to ensure telemarketing compliance, particularly because there are numerous plaintiffs-in-waiting who are seeking to commence suit against potential violators. Companies involved in telemarketing and text message marketing should take caution when deciding what technology to use to increase efficiency, or face potential TCPA class action liability.

If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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