April 18, 2021

Volume XI, Number 108

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April 16, 2021

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April 15, 2021

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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”

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-8962021 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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© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 95
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

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...

213-689-6510
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