Troutman Sanders Firm Provides Member Perspective on Marks v. Crunch San Diego Settlement

Parties’ decision to settle leaves industry waiting for FCC guidance on the TCPA.

2/21/2019 2:30 PM

Troutman Sanders Firm Provides Member Perspective on Marks v. Crunch San Diego Settlement

“The Telephone Consumer Protection Act (“TCPA”) carries the risk of annihilative damages for class action defendants based on its remarkable statutory damages scheme. Because of this risk, the statute has been the subject of significant court and agency attention recently. And much of this attention – from the D.C. Circuit’s opinion in ACA International to the Federal Communication Commission’s (“FCC) upcoming ruling – has been aimed at limiting the TCPA’s reach,” according to attorneys from ACA International member company Troutman Sanders LLP in an analysis of the recent settlement in Marks v. Crunch San Diego. “Some in the industry hoped that the next nail in the TCPA’s coffin (after the impending FCC decision and PDR case) would be the United States Supreme Court agreeing to review the Ninth Circuit’s recent decision in Marks v. Crunch San Diego, which advanced a controversial interpretation of the statute’s reach. Now, we can all put our hammers away for a while because Marks has settled.”

What to Expect Next

“In the coming months, the FCC is expected to issue new rules on the meaning of an ATDS under the TCPA,” Troutman Sanders reports. “If those rules interpret the definition of ATDS more narrowly than Marks, it will set up an interesting debate in the Ninth Circuit.

When the Ninth Circuit decided Marks, it did so in the absence of guidance from the FCC. The D.C. Circuit had vacated the FCC's previous guidance months earlier in the ACA International case. If the FCC's forthcoming rules conflict with Marks, which many expect, district courts in the Ninth Circuit will have to decide whether to follow the FCC or the Ninth Circuit. Or, they may avoid that debate altogether by concluding that Marks would have followed FCC guidance if it existed at the time, which would allow district courts to harmonize Ninth Circuit jurisprudence with FCC guidance.

On that last point, we expect additional guidance from the Supreme Court soon. In November 2018, the Supreme Court granted certiorari in PDR Network LLC, et al. v. Carlton & Harris Chiropractic. In that case, the Supreme Court will address how much deference district courts must give to the FCC when interpreting the TCPA. In short, the TCPA has many moving parts – from FCC Orders, to PDR Network, to the impact of Marks.” Troutman Sanders will continue tracking these issues closely and read more on the Marks v. Crunch San Diego settlement from ACA International.

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