I sincerely love TCPAWorld. There is so much brilliant nuance to the place. Lawyers practicing here have to really be sharp or they risk losing billions for their clients by missing arguments—or getting snapped at by a judge, which is arguably even worse. More to come on that.

Mercifully, for some, courts will sometimes bail out under-cooked lawyering by doing the right thing even if the proper arguments weren’t raised.

Apropos, the court in Mehaffey v. Solutions, Civil Action No. 19-cv-00197-REB-NRN, 2021 U.S. Dist. LEXIS 113384 (D. Colo.  June 17, 2021) bailed out Navient although its lawyers seemingly missed critical arguments.

Before we get there, however, recall the other day I wrote about Navient being held liable under the TCPA for calls that were perfectly legal at the time they were placed. At the time I called the ruling “madness” and it really seemed to be precisely that. But recall also that the Court in the earlier decision (Franklin) noted that certain critical arguments weren’t fleshed out, which drove the result.

While the Court in Franklin was unwilling to do the deep dive into the pertinent legal issues needed to bail out the Defendant, the Court in Mehaffey was determined to get to the right answer—even though the parties didn’t provide much help. Before it got there, however, it made sure to let everyone know what it thought of the quality of the legal briefs before it:

“The effort to resolve those questions has been hampered in this case because neither of the parties apparently appreciated or acknowledged these issues, much less bothered to address them.”

Ouch. My goodness. Ouch.

But a footnote goes even farther and really captures the Court’s ire:

“My staff attorney will forward the bill for her services to counsel in due time – not that she’s bitter”

That’s just wrong. I actually feel bad for the Court’s staff—which is why I’m using this blog to call out my defense brethren. Do better folks.

Ok, with that out of the way let’s get to the good stuff.

The first issue here is whether the government-backed debt exemption was stricken retroactively or prospectively by AAPC. This is a critical argument because it animates Creasy defenses—if the exemption was valid for any period of time then the TCPA was content-specific and enforcing it against a disfavored speaker would violate the First Amendment. If, on the other hand, the amendment was void from the start then—arguably—the TCPA is yet enforceable during the timeframe the exemption was seemingly (but not really) on the books.

In answer to that first question the Court agreed with Franklin and found that the exemption was void from the start. Uh oh. That’s bad for Creasy adherents, and it is also bad for Navient. No exemption means no defense. That means big damages.

Recognizing, however, that enforcing a statute against Navient for conduct that was plainly permitted at the time it took place is, um, madness the court explored whether due process rules might prevent the application of the TCPA to Navient in this case. And here’s where things get really interesting (and the Court’s staff attorney had to burn the midnight oil.)

It turns out there’s a doctrine that judicial rulings are not entitled to their usual retroactive applications where the enactment is criminal in nature. That is, criminal exposure cannot shift and spring ex post facto. The dimensions of a criminal enactment must be set and sturdy at the time a crime is committed. Otherwise, the criminal gets away.

Well, that’s all good for murders and baby snatchers, but what about for less civilized folks like robocallers?

Well, it turns out the same protections may prevent the retroactive expansion of the TCPA—and that’s important not just for collectors of government-backed debt but for all TCPAWorld denizens that have seen their exposure expand as this court or that agency interprets the TCPA broader than the last.

The Mehaffey court dove deep into jurisprudence that allows a civil statute (like the TCPA) to be treated as a criminal enactment where the penalties afforded by the statute are punitive in nature. After recognizing—on lengthy analysis—that treble damages plainly qualify as punitive the Court was hamstrung since Navient plainly did not violate the TCPA “willfully” since the TCPA allowed what Navient did at the time it was done.

But no willful damages seems to mean no criminal enforcement, right? Well, no.

On much thinner analysis the Court ultimately concludes that all damages sought under the TCPA are punitive in nature—meaning the TCPA is always a quasi-criminal enactment.

As such the Court entered judgment in favor of Navient–since the TCPA was a quasi-criminal enactment the due process clause prevented a retroactive expansion of the statute to cover conduct that was legal at the time it was undertaken. So Mchaffey splits with Franklin on the critical issue of liability– Navient is liable in one court for the exact same conduct it is not liable for in another.

That’s TCPAWorld for you.

Happy weekend, folks.