The U.S. District Court for the Northern District of Illinois denied a motion to dismiss a class action for allegations that GrubHub, Inc. violated the Telephone Consumer Protection Act (TCPA). The plaintiff alleged that she received a series of robocalls from GrubHub, even though she asked to be put on the do-not-call list more than once. The plaintiff further alleges that GrubHub used a device “programmed to sequentially or randomly access, dial, and call […] stored telephone numbers,” and that Grubhub “effectively prevent[ed] her from using her phone” and “clogg[ed] up” her voicemail.

In GrubHub’s motion to dismiss, GrubHub argued that the TCPA section at issue has since been declared unconstitutional during the time period in which the plaintiff claims the calls were made; therefore, it was unenforceable during that time period.

Specifically, the debate between the parties centered on the TCPA’s robocall provision’s status between 2015, when the government debt exception was enacted, and February 11, 2021, the date final judgment was entered by the District Court on remand in Barr v. American Association of Political Consultants, Inc. (AAPC). In AAPC, the Supreme Court held that the government debt exception was unconstitutional because it favored government-debt collection speech over other types of speech. However, rather than finding the entire TCPA unconstitutional,  the Court severed the government debt exception from the rest of the statute. Grubhub argues that severability can only apply prospectively, not retrospectively, and therefore, the entirety of the cell phone robocall prohibition was unconstitutional during this time period. If that is correct, the court would lack subject matter jurisdiction over the plaintiffs’ action. The clear weight of authority, however, supports the view that severability of the government debt extension amendment to the TCPA operates retrospectively. The court denied the motion to dismiss on these grounds.

The lesson here is that the TCPA is still being enforced and litigated. If your company is using autodialers or pre-recorded messages, be sure to stay on top of the requirements under this statute. Otherwise, the penalties or claims for damages could be substantial.