The defendant in a TCPA class action has settled the case after filing a petition for a writ of certiorari with the Supreme Court. Crunch San Diego, LLC v. Marks, No. 18-995. The defendant-petitioner, Crunch San Diego, had used a web-based system to send promotional text messages to a list of stored telephone numbers at a time selected by the gym. It is undisputed that the system did not use a random or sequential number generator. The District Court for the Southern District of California granted summary judgment in favor of Crunch. The 9th Circuit reversed, ruling that an ATDS includes devices with the capacity to automatically dial stored telephone numbers, whether or not a random or sequential number generator was used.

Crunch had argued that the Court should grant the petition because (1) the TCPA’s plain text requires that an ATDS use a random or sequential number generator, (2) Congress’s purpose in enacting the TCPA was to restrict telemarketing that used an ATDS, and (3) the 9th Circuit knowingly created a circuit split with the Third Circuit, which held that an ATDS requires the use of a random or sequential number generator.

Crunch filed its petition on January 28, 2019. On February 15, Plaintiff-respondent Marks was granted an extension of time to file a response to April 1. On February 20, the Southern District of California granted the parties’ joint motion to dismiss because the case settled (No. 14-cv-348-BAS-BLM). Accordingly, the parties filed an agreement to dismiss the case with the Supreme Court on February 21. Consequently, the 9th Circuit’s decision and definition of an ATDS remains.