Blink And You’d Miss It: Just Like that the Plaintiffs Bar has Evened The Ledger On the Constitutionality of the TCPA

In this town your luck can change just that quickly.”

-Rusty (Brad Pitt), Ocean’s Eleven.

Well that was fast.

Just a week ago we reported on the first win by the “bad guys” on the issue of the TCPA’s constitutionality as applied to calls made prior to July 6, 2020. The score at the time was 3-1. Well, what a difference a week makes.

In a series of stunning wins, the Plaintiffs bar has now evened things up and we have a classic 3-3 split of authority on the critical issue of the statute’s enforceability.

Level setting—the Supreme Court in AAPC held that the TCPA was a content-specific restriction on speech, which violates the First Amendment. To salvage the statute, however, SCOTUS struck down one (of several) content-specific restrictions. The question, then, is whether that “severance” of the government-backed debt exemption operated retroactively (so as to make the TCPA suddenly constitutional as if it were re-written from the beginning of time) or only prospectively (such that calls made during the period that the TCPA was unconstitutional are not enforceable.)

The first three cases to address the issue all held that the TCPA was unconstitutional—and Squire’s Archduke Daniel Delnero delivered arguably the best win of all in Hussain.

But it’s a game of runs here in TCPAWorld, and since Hussain was handed down a wave of Plaintiffs victories have followed. You already know about Abramson, but there are two others to make note of as well.

First, in Alexander Shen v. Tricolor California Auto Group, LLC, CV 20-7419 PA (AGRx) (C.D. Cal. Dec. 17, 2020) the district court adopted a more “limited” view of AAPC and concluded that the Supreme Court merely analyzed and severed the government-backed debt exemption and did not implicitly or directly find the TCPA’s call restrictions to be unconstitutional. Notably, Shen provides no direct reasoning to justify the conclusion that AAPC might find the exemption unconstitutional in a manner that yet has no impact on the enforceability of the TCPA restriction the exemption modifies. Rather Trujillo seems to assume that is the Ninth Circuit’s preferred approach since the Ninth Circuit’s Duguid opinion did not analyze the issue. (I.e. Shen holds that because Duguid did not analyze the issue of whether AAPC invalidated the TCPA, it must not have—but that is contrary to the rule that a decision is not precedent for an issue it does not consider.)

And now, just today, the Central District of California issued a ruling in Trullio v. Free Energy, 9-cv-02072-MCS-SP, Doc. No. 76 (C.D. Cal. Dec. 21, 2020) denying a Defendant’s motion for judgment on the pleadings on Creasy grounds. In Trujillo the court recognized that Footnote 12 creates a paradox—the AAPC ruling cannot both shield callers that relied on the exemption in the past while simultaneously authorizing enforcement of the statute during the same timeframe as the footnote suggests—but concludes that the footnote was merely dicta and analyses the issue of severance under the 1929 Supreme Court case of Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27 (1929). Under Frost enactments found to be unconstitutional are deemed void—but Trujillo assumes that the unconstitutional enactment was the Congressional addition of the government-backed debt exemption in 2015 whereas (arguably) the enactment that was determined to be unconstitutional was the TCPA’s restriction on speech.

This is obviously a fast-developing and highly fractured area of the law–as I predicted–and we’ll keep an eye on this.


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