Ok, so the score is now 7-3 against Creasy and things are suddenly starting to look a little grim. Like College Basketball, TCPA case law is sometimes a game of runs so we shouldn’t get too despondent. Nonetheless, I liked it when the score was 3-0 in favor of the good guys.
It would probably help if defendants in cases that have no shot of pulling off a Creasy victory stopped lobbing up hail marys. (Or is it hail maries? Hail maryies? Hail Mary-s?)
For instance, if TCPAWorld had a whipping boy it would surely be cruise ship companies who allegedly (and sometimes definitely) fire random prerecorded messages to people’s phones to pitch cruises. And the classic “maybe it fits the mold maybe it doesn’t” TCPA cruise ship case is McCurley v Royal Seas.
Now McCurley is a famous case in TCPAWorld for a couple of reasons. First, it is pretty much the only case where a TCPA class has been certified based upon leads purchased from third parties and against evidence (albeit not the best evidence) that the underlying leads were legitimate webform submissions that demonstrated acceptance of potentially valid disclosures.
There are certainly other cases that have challenged the disclosures on a classwide basis, but McCurley remains the only case to certify a class action where the underlying disclosures are actually potentially valid.
Because of this unusual posture, McCurley has animated–like some evil necormancer–an entire population of zombie TCPA class action filings involving multi-faceted TCPA disclosure submissions leads that are seemingly uncertifiable but… hey, what about McCurley?
McCurley is not just famous because of its one-of-a-kind certification ruling, however. It is also famous because the Defense counsel in that case got sanctioned for ethical violations surrounding contacts to represented class members in a bid to get the case uncertified. (Pro tip: gather evidence of consent before certification folks.)
So when things are going that badly for you in a case the last thing you should be doing is raising new cutting edge arguments that other defendants need to rely on in cases that aren’t already entirely off the rails.
All right fine, that’s not true. Every lawyer should do the best for their client and raise all available arguments– but ugh was the ruling in McCurley v. Royal Sea Cruises, Case No. 17-cv-00986-BAS-AGS, 2021 U.S. Dist. LEXIS 16403 (S.D. Cal. January 28, 2021) yesterday predictable.
The Court in McCurley XVI held that Creasy was unconvincing and the Supreme Court’s dicta in AAPC to the effect that the TCPA remained both enforceable and not enforceable depending on how it is being applied could not be cavalierly dismissed. So the Court found the TCPA was still constitutional.
To have held otherwise, of course, would have resulted in a dismissal in favor of the cruise ship company and years of hard work on the case down the drain for both the plaintiff’s lawyers and the court. So yeah, that wasn’t happening.
Anyway, we’ll keep an eye on all of this for you.