Remember when Creasy came out and I told you all to expect another massive split of authority?
After jumping out to an impressive 3-0 lead, the defense bar has suffered its first loss on the all-important constitutionality of the TCPA as applied to calls prior to July 6, 2020.
At stake, of course, is trillions in potential liability created during the robocall boom of the mid 20teens. If the TCPA was not enforceable during that timeframe–which certainly seems to be the case–then all of that liability (not to mention dozens of pending class action lawsuits) will be wiped away with the tide.
With Creasy, Lindenbaum, and the Archduke’s masterpiece in Hussain all pointing in one direction it seemed there was little to debate. But we knew the Plaintiff’s bar wasn’t going to accept defeat on this critical issue lying down– and they’ve scored their first victory.
In Abramson v. Fed. Ins. Co., Case No. 8:19-cv-2523-T-60AAS, 2020 U.S. Dist. LEXIS 232937 (M.D. Fl. December 11, 2020) the court held in a succinct little order that SCOTUS didn’t find the TCPA was unconstitutional to begin with, so there is no basis to wipe away liability.
While this is a very debatable holding, you knew some court was eventually going to get there. And now one has.
It is worth noting that this case was ALSO handed down in the M.D. Fl–the exact same court that decided Hussain on the exact same day. In other words, you have two judges in the same courthouse ruling opposite ways on the exact same issue within minutes of one another. (A little reminiscent of the early split on ATDS case law following ACA Intl no?)
Only in TCPAWorld folks.
For the curious, Plaintiff’s lawyer here is the ever-formidable Avi Kaufman.
Good luck out there.