Buzzer Beater?: TCPA Defendants Get Some Much-Needed Good news On Creasy—But is it Too Little Too Late?

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Well the tournament field was just announced yesterday and we already have one of those “last-minute heroics” stories we enjoy so much in March.

As readers of TCPAWorld know, last year saw the epic decision in Creasy, that determined the Supreme Court’s ruling in AAPC meant the TCPA was unconstitutional from November, 2015 until July 6, 2020 and declared that the statute was unenforceable during that period of time.

Two rulings quickly followed Creasy, but Defendants have endured nine straight defeats since Squire Patton Boggs TCPA defense team delivered the nation’s last pro-Creasy decision in Hussain.

Somehow the news got even worse for TCPA defendants when Judge Moody—the same Judge that had ruled in favor of Squire’s client in Hussain—reversed course in is latest brush with the statute, declaring “as stated further above, every court to analyze this issue since Hussain has concluded that the TCPA remains valid. The Court, having the benefit now of reading all of these cases, agrees with this majority view.” See Latest Bad Creasy Case (Notably Boisvert was NOT defended by Squire Patton Boggs and the Plaintiff’s lawyer in that case is the ever dangerous Tav Gomez of Morgan & Morgan. Go figure.)

But just as a long dark night seemed to be falling on Creasy some critical good news was just handed down last week in California. In Camacho v. Hydroponics, Inc., EDCV 20-980 JGB (KKx), 2021 U.S. Dist. LEXIS 46145 (C.D. Cal.  March 10, 2021) the district court stayed the litigation pending the outcome of an appeal to the Ninth Circuit on the Creasy issue. And that’s great!

Why?

Well not only in the Ninth Circuit historically the best about protecting the First Amendment in the Robocall context—remember that old Montana Robocall bill that was struck down recently?— but a court is much more likely to grant a stay on Creasy than to outright dismiss the case given the way the case law is developing. As I’ve explained previously, Creasy is undoubtedly correct—but it is also hard to expect a district court to pull the trigger and dismiss a case outright on constitutional grounds. A stay is a nice middle ground for the court—it can acknowledge the obvious strength of the Creasy position but still ride the fence and wait for the appellate court to do the heavy lifting.

Assuming the Ninth Circuit decision comes out in Creasy’s favor, a stay is just as good as a dismissal—maybe better because a defendant doesn’t have to incur the cost of an erstwhile appeal following dismissal.

All in all Camacho is the best Creasy-related news since the Archduke’s big win in Hussain. And it couldn’t have come at a better time—this is the TCPA equivalent of a buzzer beater. And we’ll take it.

Separately, I hate daylight savings.

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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.

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  1. Pingback: TCPA Defendants Get Some Much-Needed Good news On Creasy—But is it Too Little Too Late? – TCPAWorld - GOOD NEWS NIGERIA
  2. Pingback: WOAH: The ACLU Just Filed an Amicus Brief Supporting Creasy and it is REALLY Good – TCPAWorld

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