As we have reported on here, here, here, and here, a growing number of district courts are issuing opinions addressing whether they have subject matter jurisdiction over TCPA claims alleging robocall violations that occurred when the government debt exception invalidated by Barr v. APPC, 140 S. Ct. 2335 (2020), was part of the statute. The Eastern District of California recently added to this line of cases, joining courts that have held that “the TCPA remains enforceable, at least against non-government debt collectors, as to calls made between November 2015 and July 6, 2020.” See Stoutt v Travis Credit Union, No. 2:20-cv-01280, 2021 WL 99636, at *3 (E.D. Cal. Jan. 12, 2021).
The court recognized that other district courts have held otherwise, i.e. “that [Barr] divests federal courts of jurisdiction over TCPA claims concerning robocalls made between November 2015 and the date of [Barr’s] issuance, even when those robocalls were not made for the purposes of collecting government debt.” Id. (citing Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 5:20-cv-38-Oc-30PRL, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020); Lindenbaum v. Realgy, LLC, No. 1:19 CV 2862, 2020 WL 6361915 (N.D. Ohio Oct. 29, 2020); Creasy v. Charter Commc’ns, Inc., Civil Action No. 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020)). The Stoutt court, however, sided with the Central District of California and found that “Justice Kavanaugh’s statement [in a non-binding footnote in Barr] is ultimately persuasive—in other words, that [Barr] ‘does not negate the liability of parties who made robocalls covered by the robocall restriction.’” Stoutt, 2021 WL 99636, at *3 (quoting Barr, 140 S. Ct. at 2355 n.12) (citing Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-cv-0272-MCS-SP, 2020 WL 7768722, at *6 (C.D. Cal. Dec. 21, 2020); Shen v. Tricolor Cal. Auto Grp., LLC, No. CV 20-7419 PA (AGRx), 2020 WL 7705888, at *4 (C.D. Cal. Dec. 17, 2020)).
The Stoutt court reasoned “that the Supreme Court specifically declined to strike down the TCPA’s entire robocall ban, as requested by the [Barr] plaintiffs.” Stoutt, 2021 WL 99636, at *4. Thus, “[b]y 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.” Id. (citation omitted). The court held that “[c]ontrary to defendant’s assertions, judicial severance of a specific statutory provision does not act as a declaration that the entire statute was void and unenforceable up until the date of the court’s opinion,” and found that “[h]olding the entire robocall ban to be ineffective as to calls made between 2015 and 2020 would improperly construe [Barr] as having invalidated the entirety of § 227(b)(1)(A)(iii), rather than just the government-debt exception, and thus would undermine the Court’s central purpose in severing the statute.” Id. It determined that “Supreme Court precedent dictates that, in cases like this, ‘where Congress added an unconstitutional amendment to a prior law,’ the court must treat ‘the original, pre-amendment statute as the “valid expression of legislative intent.”’” Id. (citations omitted). Accordingly, the court found that it had subject matter jurisdiction over plaintiff’s claims, and denied defendant’s motion for judgment on the pleadings.
We will continue to monitor courts’ treatment of this pivotal issue and the growing split amongst them.