Advertising Law Blog

Plaintiffs’ class-action attorneys won a victory in the field of Telephone Consumer Protection Act (“TCPA”) lawsuits, when the U.S. Supreme Court decided in late March 2022 that class actions can proceed even though a portion of the statute was unconstitutional during a five-year period. 

In 2020, the Supreme Court ruled that part of the TCPA ran afoul of First Amendment free-speech principles because the statute permitted the government certain rights -- in this case the right to make autodialed “robocalls” to collect debts -- that were forbidden to private parties. That case was Barr v. American Association of Political Consultants (decided on July 6, 2020). In Barr, the Supreme Court “repaired” the TCPA by severing the government’s exemption and making robocalls illegal for everyone, the government included, starting on July 6, 2020.

But the Barr ruling left open the question of what to do with the many TCPA lawsuits that covered the period of unconstitutionality, 2015-2020. Should all the other cases be dismissed because the statute was unconstitutional, or should the ones that had nothing to do with the unconstitutional portion of the statute be allowed to continue?  

Federal courts were left to their own discretion to answer this question. Initially, courts favored dismissing all TCPA lawsuits during the period of unconstitutionality. One such ruling was Creasy v. Charter Communications, Inc., decided in the Eastern District of Louisiana. Another early ruling came in Lindenbaum v. Realgy LLC in the Northern District of Ohio. Realgy successfully argued that because the TCPA was unconstitutional between 2015 and 2020, plaintiffs could not enforce it for robocalls calls made during that period. (The government exception to the robocall ban was added to the TCPA in November 2015). 

Both the Creasy and Realgy rulings sided with the defense. But the attorneys for Lindenbaum took an appeal and won. Last September, the Sixth Circuit Court of Appeals reversed the district court’s ruling and reinstated the lawsuit. Now it was defendant Realgy’s turn to appeal, and they did so, asking the Supreme Court to hear the case.

Realgy’s most tangible objection focused on a conflict of interest. One of the Sixth Circuit judges who reinstated the lawsuit has a husband and son who are partners in a leading TCPA plaintiff’s firm. The judge’s daughter also works at that firm, so the judge’s family, and therefore the judge herself all stand to benefit financially from precedent that allows five years’ worth of TCPA cases to go forward. The judge refused to recuse herself from the case despite being asked to do so.

In late March 2022, however, the Supreme Court declined, without comment, to consider Realgy’s appeal. The effect of the Supreme Court’s denial of certiorari means that in the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee), plaintiffs can sue over illegal robocalls made during the disputed five-year period of unconstitutionality.

TAKEAWAY: While the majority of district courts agree with the Sixth Circuit and allow the disputed TCPA cases to move forward, the Creasy ruling and a few other contrarian decisions still stand. If the split in authorities does not resolve itself at the Court of Appeals level, this issue could be revisited by the Supreme Court in 2023.