As the Czar reported in late December (here), the plaintiffs’ bar had evened the score (3-3) with two recent decisions finding that the TCPA was constitutional as applied to calls made prior to the Supreme Court’s decision in Barr v. American Ass’n of Political Consultants, 140 S. Ct. 2335 (2020), on July 6, 2020.  Unfortunately, plaintiffs have now pulled ahead with yesterday’s decision in Stoutt v. Travis Credit Union, 2021 U.S. Dist. LEXIS 6019 (E.D. Cal. Jan. 12, 2021).

The issue is whether the Supreme Court’s decision in AAPC forecloses federal courts from asserting subject matter jurisdiction over alleged violations of the TCPA committed while the government backed debt exemption was part of the statute (i.e., from November 2015 – July 6, 2020).  The Stoutt court recognized that district courts had split on the issue and concluded to follow its California brethren.

While the Stoutt court recognized that the now famous footnote 12 in Justice Kavanaugh’s opinion (stating that AAPC “does not negate liability of parties who made robocalls covered by the robocall restriction”) was dicta, it nonetheless found it persuasive.  “By severing and invalidating only the government-debt exception, ‘rather than razing whole statutes or Acts of Congress,’ the Court ensured that the TCPA’s original robocall ban would remain in effect, including as to calls placed between 2015 and 2020.”

The Stoutt court rejected Defendant’s reliance on Grayned v. City of Rockford, 408 U.S. 104 (1972) in which the Supreme Court held that a defendant’s conviction under a statute that was later amended by the state legislature had to be vacated because the statute in place at the time had made an impermissible distinction.  According to the Stoutt court, Grayned is distinguishable because the Supreme Court did not have the occasion to sever the offending portion of the statute because the state legislature had already amended it.  Interestingly, the Stoutt court did not explain why that distinction matters.  The Stoutt court also found that defendant had not cited a single case in which a court has determined a statute to  be ineffective where the statute suffered a finite period of constitutional infirmity bookended by periods of validity.

If you are on the defense side, do not fear.  Courts are only beginning to grapple with this issue.  We will likely see many more decisions in the coming months addressing this question.