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

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!


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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