Ninth Circuit Says No to Marks Revisit En Banc

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The United States Court of Appeals for the Ninth Circuit has declined a chance to revisit its 2018 decision in Marks v. Crunch San Diego, LLC that an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (TCPA) 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.”

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The opportunity came in an appeal by Portfolio Recovery Associates, LLC in challenging a District Court ruling, applying Marks, that the company had employed an ATDS in debt collection efforts. Back in February of this year, Portfolio sought an initial hearing of its appeal before the entire court sitting en banc. Portfolio asked the Ninth Circuit to resolve “an unambiguous and growing” conflict among Federal appellate decisions, with Portfolio reportedly describing the Ninth Circuit as an “ever-more-isolated outlier” on the ATDS issue. Of course, since February the Ninth Circuit’s Marks reading of the TCPA was joined by the Second Circuit in Duran v. La Boom Disco (https://tcpaworld.com/2020/04/07/la-boom-goes-the-dynamite-second-circuit-holds-tcpas-atds-definition-includes-devices-that-can-call-from-lists-and-not-just-random-fire-dialers/).

The Court’s denial of an en banc hearing came in a terse two-sentence order, indicating that no judge had supported such an en banc proceeding. Perhaps the lack of interest was encouraged by the fact that Marks was no longer an “outlier,” but now had Duran’s company. With the Ninth and Second Circuits facing off against the Seventh and Eleventh Circuits where does the ATDS path lead next?

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