ACA Supports Defendant in `Magic Wand’ Case on Constitutional Violations of the TCPA


A district court’s decision in the appeal in Lindenbaum v. Realgy Inc. will determine whether, and to what extent, the TCPA is enforceable against calls made during the time the statute contained an unconstitutional content-based restriction. ACA argues that district court’s decision to dismiss the case on behalf of the defendant should be upheld.

3/29/2021 11:00

ACA International filed an amicus brief in the 6th Circuit in the appeal of Lindenbaum v. Realgy, No. 20-4252, the first appeal to specifically address the retroactive application of the Telephone Consumer Protection Act in the wake of the U.S. Supreme Court’s decision in Barr v. American Association of Political Consultants (“AAPC”) last summer.

As readers may recall, the AAPC court found—in a splintered plurality decision—that the so-called “government debt exception” imposed an unconstitutional content-based restriction on speech, and so the court severed the exception from the TCPA.  

In Lindenbaum, the consumer has appealed a decision written by Judge Patricia Gaughan in the Northern District of Ohio that found—in light of the decision in AAPC—that federal courts no longer have jurisdiction to hear claims alleging violations of the calling restrictions imposed by the TCPA during the period between the enactment of the so-called “government debt exception” (Nov. 2, 2015) and the date of the decision in AAPC (July 6, 2020).

Judge Gaughan wrote in the opinion that courts “cannot wave a magic wand and make [the] constitutional violation disappear. Because the statute at issue was unconstitutional at the time of the alleged violations, the court lacks jurisdiction over this matter.”

In Lindenbaum v. Realgy Inc., the plaintiff filed a class-action lawsuit against the defendant for placing a prerecorded call to the plaintiff’s cellphone, ACA previously reported. After the filing of this lawsuit, the defendant placed a second prerecorded call, this time to the plaintiff’s landline. The plaintiff never provided express written consent to receive these calls, according to the complaint, therefore Realgy allegedly violated the TCPA.

In October 2021, the U.S. District Court for the Northern District of Ohio-Eastern Division issued a ruling in the case following suit with the Louisiana district court decision in Creasy v. Charter Communications Inc. (Sept. 28, 2020) and Barr v. AAPC before the U.S. Supreme Court.

Ultimately, the district court’s decision against a violation of the TCPA by the defendant relied on precedent in Creasy and Barr that the TCPA is unconstitutional for calls made before July 6, 2020.

ACA’s amicus brief accompanied amici briefs filed by Facebook (the appellant in the Facebook v. Duguid ATDS case); the Credit Union National Association; the U.S. Chamber of Commerce; and, perhaps most notably, a marquee group of constitutional law professors in collaboration with the American Civil Liberties Union (ACLU) and the ACLU of Ohio Foundation.

In a blog post published by TCPAWorld, Eric Troutman, partner at Squire Patton Boggs, described ACA’s amicus brief as “outstanding.

In its amicus brief, ACA argues the district court’s ruling was correct and should be affirmed.

This court’s decision in the present appeal in Lindenbaum v. Realgy Inc. will determine whether, and to what extent, the TCPA is enforceable against calls made during the time (2015-2020) that the statute contained an unconstitutional content-based restriction.

In its brief, ACA also explains why retroactive liability should not be available against federal debt collectors during the time the TCPA contained the government debt exception, even if the court concludes that some of the ATDS restrictions can be retroactively applied during that time.

The main arguments include:

  • The Supreme Court held that the TCPA provisions were unconstitutional, without ruling on retroactivity;
  • The district court correctly held that a defendant cannot be held liable for violating an unconstitutional law;
  • The policy justifications recited in AAPC to support prospectively invalidating the exemption do not apply to past behavior;
  • Federal debt collectors cannot be retroactively subject to the TCPA’s consent requirements for the period that the exemption was in effect.

Realgy LLC is represented by Ryan Watstein of Kabat, Chapman & Ozer, based in Atlanta, who separately represented the defendant in the case that started it all, Creasy v. Charter Communications Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020).

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