Northern District of Florida Picks Side in Creasy Split

In the aftermath of Barr v. American Association of Political Consultants, Inc.—the Supreme Court decision from July that held the TCPA’s government-debt exception to be an unconstitutional content-based restriction on speech—the country’s district courts cannot agree on whether they may adjudicate TCPA claims alleging conduct that transpired during the life of the exception (i.e., during the period from November 2, 2015 to July 6, 2020). Click here to see our collection of posts on this issue, which we have been following closely.

Recently, the Northern District of Florida weighed in on the issue, concluding that it did have subject-matter jurisdiction over TCPA conduct that, according to the complaint, occurred between October 2019 and February 2020. In the case, Rieker v. National Car Cure, LLC, the defendant argued that the district court lacked jurisdiction over this time period because the version of the statute on which the TCPA claim was based contained the government-debt exception, which was later pronounced invalid. Case No. 3:20-cv-5901, at *1 (N.D. Fla. Jan. 5, 2021); see also Creasy v. Charter Commc’ns, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020) (adopting this reasoning). In response, the plaintiff emphasized that Barr invalidated only one provision of the TCPA and allowed the rest of the statute to stand. Id.

After noting that not a single circuit court has addressed this issue, the Northern District sided with those districts that have said they will hear TCPA claims originating from the roughly four-year period that the government-debt exception remained on the books. The court explained that this outcome is consistent with the plurality opinion from Barr, “in which Justice Kavanaugh clearly stated (albeit in dicta) that ‘our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.’” Id. (quoting Barr, 140 S. Ct. at 2355 n.12). The court thus denied the defendant’s motion to dismiss and allowed the plaintiff’s TCPA claim to proceed.

Rieker gives a taste of what may come for defendants who make the Creasy argument in Florida’s Northern District. Then again, the recent intra-district split in the state’s Middle District shows that district judges won’t necessarily follow their colleagues’ guidance on this issue.

We will continue to monitor and cover this issue as it is addressed by new courts.