Recently, the Eastern District of Missouri added to the split among courts deciding whether they can hear TCPA claims alleging robocall violations that occurred when the now-invalidated government debt exception was part of the statute. As we have previously reported on here, some district courts have joined Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020), in holding that subject matter jurisdiction is lacking in such cases, but a growing number—now including the Eastern District of Missouri—have disagreed. Miles v. Medicredit, Inc., No. 4:20-cv-001186, 2021 WL 872678 (E.D. Mo. Mar. 9, 2021).
The scenario at issue in this case is a familiar one. Defendant Medicredit is a medical debt collector. Plaintiff Miles contended that Medicredit violated the TCPA’s prohibition on making calls using an ATDS or an artificial or prerecorded voice by placing six such calls to his cell phone, without his consent, in January and February 2018. Not so, Medicredit responded, for the prohibition at issue, 47 U.S.C. § 227(b)(1)(A)(iii), was unconstitutional at the time Medicredit allegedly made the calls to Miles because the provision contained an exception, for calls to collect government debts, that the Supreme Court later invalidated as a content-based restriction on speech that violated the First Amendment. Thus, Medicredit argued in its motion to dismiss that the court, having no statutory basis to enforce the alleged violations, lacked subject matter jurisdiction to hear the suit.
Citing Creasy and the cases that have followed it, the Miles court “acknowledge[d] there is a direct conflict in district court decisions issued after [Barr v. AAPC, 140 S. Ct. 2235 (2020),] over the liability of robocallers under § 227(b) for calls that took place between November 2, 2015 [when the government debt exception was enacted] and July 6, 2020 [when the Supreme Court invalidated and severed the government debt exception], and the Eighth Circuit has not yet addressed this issue.” Miles, 2021 WL 872678 at *3. It determined, however, that “the clear majority of cases to consider this issue have allowed parties to continue to bring § 227(b) claims post-AAPC.” Id.
Joining those cases, the court rejected Medicredit’s argument that Justice Kavanaugh’s footnote in AAPC espousing this conclusion was dicta. In the famous footnote, of course, Justice Kavanaugh stated that government debt collectors should not be liable for making calls that had been allowed by the now-invalidated government debt exception, but “on the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.” Barr v. AAPC, 140 S. Ct. at 2355 n.12. Rather than mere dicta, the court concluded that Justice Kavanaugh’s statement “signals the intent of the Supreme Court and what it would hold in future cases and, as such, may not be dismissed by a district court.” Id.
Additionally, the court rejected defendant’s argument that some opinions finding that courts retain subject matter jurisdiction are inapposite because they relied on Duguid v. Facebook, 926 F.3d 1146 (9th Cir. 2019), which predated AAPC. The court determined that because the Ninth Circuit “‘employ[ed] an analysis that…is consistent with the Supreme Court’s disposition in AAPC,’…reliance on Duguid for its treatment of the severance issue is not misplaced.” Miles, 2021 WL 872678 at *4 (citation omitted). The court also declined to consider defendant’s argument that “if the government-debt exception were treated void as ab initio, then government debt collectors could be subject to TCPA liability for calls made between 2015 and 2020, creating ‘due process issues.’” Id. at *4. It reasoned that it “need not address” this issue, since defendant was “not a government-debt collector.” Id. Accordingly, the court denied Medicredit’s motion to dismiss.
We will continue to monitor the growing number of district court decisions adding to the Creasy split, as well as the appellate decisions that are sure to follow.