Creasy Alive and Well in Texas!: Court Finds TCPA “Unconstitutional from the moment Congress enacted the government debt exception until the Supreme Court handed down its decision in AAPC”

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Lots going on in TCPAWorld folks.

I know Facebook is overshadowing Creasy at the moment, but for many businesses facing a combined trillions in exposure for calls between 2015 and 2020 the constitutionality of the TCPA remains of paramount importance.

I’m not going to lie—its been pretty bleak out there recently with a pile of recent decisions rejecting Creasy. (We haven’t even been able to keep up with all of them in light of the resources Facebook is commanding.)

But a HUGE and critical ruling came down in the shadow of Facebook last week that shows Creasy is still very much alive in some jurisdictions.

In Cunningham v. Matrix Fin. Servs., Civil Action No. 4:19-cv-896, 2021 U.S. Dist. LEXIS 62875 (E.D. Tex. March 31, 2021) the district court rejected a magistrate judge’s recommendation denying a motion to dismiss on Creasy grounds.

The Court carefully analyzed severance in the context of the First Amendment and concluded that permitting TCPA cases to proceed on a content-specific basis would result in unconstitutionally regulating speech. As such,  the court finds “the necessary conclusion is that § 227(b)(1)(A)(iii) was unconstitutional from the moment Congress enacted the government debt exception until the Supreme Court handed down its decision in AAPC. In other words, during that stretch of time, § 227(b)(1)(A)(iii) had no legal effect.”

This is a huge ruling and the Court was not blind to its impact: “The Court understands the effect of its decision, particularly that Cunningham (and others  similarly situated) are no longer able to seek relief from the Court for this specific subset of TCPA violations. Nevertheless, the Court cannot “formulate new law or pass judgment upon what the law should be, for ‘judicial power is never exercised for the purpose of giving effect to the will of the Judge’ but instead is exercised only to give effect ‘to the will of the law.”

The issue remains on appeal to the Sixth and Ninth Circuit Courts of Appeals, and district courts have begun granting interlocutory appeals and stays pending the outcome of these cases.

Notably the ACLU submitted an amicus brief in support of Creasy to the Sixth Circuit and joined Unprecedented to discuss why preventing the TCPA’s unconstitutional application is so critical to protect American’s First Amendment rights. Look for that interview to drop this week here on TCPAWorld.com.

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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: Oral Argument Set in Lindenbaum–and I’m in KC for Industry Impact – TCPAWorld

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