So, super busy day for me–just got back from three days at Medicarians and need to work!–but wanted to give you a quick update on Creasy.
Ever since the Sixth Circuit torched the argument in Lindenbaum the idea that the TCPA is unenforceable for calls between November, 2015 and July 6, 2020 is essentially dead.
The only place it had a sliver of life left was in Texas because, well, Texas.
But yesterday a judge out of Dallas issued a ruling stabbing Creasy deep in the heart:
The case is Williamson v. Irvine K Motor Co., 2022 WL 2053179, 3:21-CV-1599-L-BH (N.D. Tex. 06/07/2022). Court reasons:
Defendant argues that the Court should follow the minority view that the entire robocall restriction was unenforceable “from the time of the exception’s enactment until the Supreme Court’s decision.” This position, however, “is squarely contradictory to AAPC.” As discussed, the Supreme Court found the government-debt exception to the TCPA was unconstitutional, but instead of invalidating the entire robocall restriction, it applied “traditional severability principles” and concluded that the proper course was to “sever the 2015 government-debt exception and leave in place the longstanding robocall restriction.” . It noted that the Act included a severability clause and explained that there is a presumption that “an unconstitutional provision in a law is severable from the remainder of the law or statute.” When an unconstitutional amendment has been added to a valid law, the “original, pre-amendment statute” is treated as the “ ‘valid expression of the legislative intent.’ ” Id. This is because the unconstitutional amendment “is a nullity and, therefore, powerless to work any change in the existing statute.” Because the 2015 amendment was an unconstitutional enactment, it was void ab initio and was never law. … Defendant’s motion to dismiss on this basis is denied.
So yeah, that about seals the deal on Creasy I’d say.
Also, notice how the Court holds that the exemption was NEVER law to begin with. That goes a long way to explaining the result the Baroness talked about the other day in that big skip trace certification ruling…
Good analysis. Thank you.