• by Wendy Davis  @wendyndavis, February 4, 2019

Crunch Fitness is asking the Supreme Court to decide whether a former gym member can proceed with a lawsuit over a federal robo-texting law.

The ex-member, Jordan Marks, alleged in a 2014 complaint that Crunch violated the Telephone Consumer Protection Act by sending him three text messages in an 11-month period. That law prohibits companies from using automated dialers to send messages to consumers without their permission.

Crunch argued the lawsuit should be dismissed at an early stage because Marks hadn't shown the messages were sent via an automated dialer. A trial judge sided with Crunch, but the 9th Circuit Court of Appeals ruled against the fitness company last year.

The judges on court ruled that auto dialers could potentially include devices that stored lists of phone numbers to be called. Those judges stopped short of ruling either that Crunch's system is definitively an auto dialer, or that Crunch violated the law. Instead, they sent the case back to the district court for further proceedings.

In papers filed with the Supreme Court late last week, Crunch argues that the 9th Circuit's definition potentially is so broad that it paves the way for robo-texting lawsuits against anyone who uses smartphones.

The 9th Circuit's ruling “massively increases exposure ... not only for businesses facing over 4,000 TCPA suits each year (often filed as putative class actions), but for over 300 million smartphone users when sending everyday texts or making calls,” Crunch writes in a petition seeking a hearing at the Supreme Court.

Crunch also points out that the 9th Circuit ruling is at odds with a recent ruling issued by a different appellate court -- the 3rd Circuit Court of Appeals, which recently ruled that Yahoo's texting system was not an autodialer.

Crunch says the Supreme Court should review the case in order to resolve the conflict between the two appellate courts.

The 3rd Circuit stemmed from a 2013 lawsuit by Philadelphia resident Bill Dominguez, who alleged that Yahoo sent him more than 27,000 text messages that were intended for the phone's previous owner.

Last year, the 3rd Circuit upheld a trial judge's decision to dismiss the case. The trial judge had ruled that Dominguez didn't prove Yahoo's system was capable of both generating and calling random or sequential numbers.