THE OTHER SHOE DROPS: Court Holds SCOTUS Didn’t Find TCPA Unconstitutional After All

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Remember when Creasy came out and I told you all to expect another massive split of authority? 

Its here.

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.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. Dear Czar:
    Thank you for posting your fair and balanced post acknowledging the 3/2 score involving the “allegedly” improper, wacky and disturbing cascade of cases following Creasy. The learned Esquires Kaufman/Paronich did an excellent job in briefing the M.D. Fla. Court to help the Court arrive at the recent and [right] decision.
    Merry Christmas and or Happy Hanukkah to you & your team,
    Sincerely and with Warmest Regards,
    Clinton Strange from W.D La.

    Reply
  2. Pingback: Blink And You’d Miss It: Just Like that the Plaintiffs Bar has Evened The Ledger On the Constitutionality of the TCPA – TCPAWorld

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