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TCPA Litigation Update — The Newest TCPA Circuit Split – And It Started With Creasy

It would be a colossal understatement to say “a lot” has happened since we last reported on Creasy. Indeed, in the matter of a few months, the courts have given birth to the newest circuit split.

First, a quick refresher on the issue: In Barr v. AAPC, the Supreme Court severed the government debt exception from the TCPA. However, the Supreme Court, in all its wisdom, failed to address what impact the severing of the provision from the statute had on the remaining parts. This lack of directive has left federal courts grappling with whether the TCPA is an enforceable statute: The question being – was the TCPA constitutional between November 2, 2015 and July 6, 2020, when the government debt exception was part of the statute? If not, then courts lack jurisdiction over TCPA claims based on conduct that occurred during that timeframe and must be dismissed. If the government debt exception clause could simply be severed from the statute, however, then no love is lost and the countless TCPA claims can continue.

Creasy v. Charter Communications, 2020 WL 5761117, at *1 (E.D. La. Sept. 28, 2020), was the first ruling on the issue, sending shockwaves through every plaintiffs’ counsel’s office. In Creasy, an Eastern District of Louisiana district court concluded that the Barr decision found the TCPA to be unconstitutional in its entirety from 2015 to 2020. The Creasy court found that courts, therefore, lack authority to enforce the statute, and a plaintiff’s TCPA claim must be dismissed for lack of subject matter jurisdiction.

This is where it starts to get good: Since Creasy, five different courts have taken up the issue, with no consistent result.

Two courts followed Creasy. See Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 20-0038 (M.D. Fla. Dec. 11, 2020); Lindenbaum v. Realgy, LLC, No. 19-2862, 2020 WL 6361915 (N.D. Ohio Oct. 29, 2020).

But, plaintiffs’ counsel are not experiencing full-fledged panic just yet; other courts have found Creasy’s rebuke of the TCPA to be improper and denied the defendants’ motions to dismiss for lack of subject matter jurisdiction. See Shen v. Tricolor California Auto Group, LLC, No. 20-7419, 2020 WL 7705888, at *1 (C.D. Cal. Dec. 17, 2020); Abramson v. Federal Ins. Co., No. 19-2523 (M.D. Fla. Dec. 11, 2020); Buchanan v. Sullivan, No. 20-0301, 2020 WL 6381563, at *3 (D. Neb. Oct. 30, 2020).

No appellate court has yet broached the issue. However, an appellate ruling appears imminent, especially where inconsistent rulings have been made on the same day within the same circuit. Compare Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 20-0038 (M.D. Fla. Dec. 11, 2020) with Abramson v. Federal Ins. Co., No. 19-2523 (M.D. Fla. Dec. 11, 2020).

This is an ever-evolving area and you can bet both plaintiffs’ counsel and defense counsel are keeping their eyes on these cases and those where similar motions to dismiss are still pending. If more courts follow Creasy, the landscape of TCPA litigation will be desolated, pushing plaintiffs’ counsel to be creative and find new fields.

 

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Authors

Joshua Briones

Member / Managing Member, Los Angeles Office

Joshua Briones is a commercial litigator who defends consumer class actions for Mintz. He's represented clients in a wide range of industries, including financial services, life sciences, manufacturing, and retail, in cases involving false advertising, unfair trade practices, and other claims.
Nicole V. Ozeran is a litigator in Mintz’s complex Corporate Litigation Group, where her practice focuses on consumer fraud, online and telephone marketing, false advertising, and regulatory and statutory compliance issues. She's also part of the Consumer Privacy and TCPA Class Action Defense Group.