Our little game of Creasy tug-of-way continues.

A few weeks back the Grand Duchess reported on the case of Stoutt in which the Court rejected Creasy and refused to dismiss a TCPA case arising out of calls made prior to July 6, 2020.

At the time the GD queried whether the “pendulum” was swinging the other way. Now we know that yes, yes it was.

But a new development in Stoutt is really good news for TCPA defendants hoping to argue that the TCPA was unconstitutional between 2015-2020 (and it was.) Specifically the Court in Stoutt has now certified the issue of the TCPA’s constitutionality for immediate interlocutory appeal. See  Stoutt v. Travis Credit Union, No. 2:20-cv-01280 WBS AC, 2021 U.S. Dist. LEXIS 57392 (E.D. Cal. March 24, 2021).

The Court determined that the Creasy issue was likely to be dispositive of the case and that there was substantial basis for a disagreement on the issue. So it asked the Ninth Circuit Court of Appeals to take a look at the issue. And it stayed the case in the meantime.

Notably, if the Ninth Circuit accepts the discretionary appeal in Stoutt it would have two cases pending before it raising the Creasy issue—the appeal in Rash Curtis also raises the issue and has already lead to at least one litigation stay.

TCPA defendants litigating in the Ninth Circuit should take note.