The attorney general’s motion argues that because the emergency regulation prohibiting outbound calls has expired, the case is moot. Editor’s note: This article is available for members only.
10/16/2020 12:00
Massachusetts Attorney General Maura Healey’s office has filed a motion seeking dismissal of ACA International’s lawsuit challenging the emergency debt collection regulation that prohibited collection agencies from making nearly all outbound collection calls to consumers. According to the motion for dismissal, “there is no indication that the regulations might be re-promulgated in a form identical to the original regulations.”
The attorney general issued the emergency regulation in late March, almost entirely halting collections calls to Massachusetts consumers. The regulation, codified at 940 CMR 35:00, went into effect on March 26, 2020, ACA previously reported.
In April, ACA filed a lawsuit against the attorney general to request an emergency temporary restraining order (TRO) and a preliminary injunction preventing the enforcement of the emergency regulation, which was granted by Judge Richard G. Stearns of the U.S. District Court for the District of Massachusetts.
Stearns issued a memorandum opinion and order granting ACA’s motion for a TRO and preliminary injunction in May.
ACA’s lawsuit, filed in U.S. District Court for the District of Massachusetts, challenged the regulation on a number of grounds, including infringement on members’ First Amendment guarantee of free speech; the 14th Amendment’s twin guarantees of due process and equal protection of the laws; and the separation of powers doctrine, which prohibits one branch of government (here, the executive branch) from usurping the powers of another (here, the judicial branch).
In the request for dismissal, Healey’s office argues that ACA’s claim for declaratory relief has become moot because the regulation expired on June 24, 2020, thus eliminating any “conceivable violation of federal law.”
Federal common law requires that, in cases where a challenged activity cannot be fully litigated prior to its cessation or expiration, courts deny mootness dismissals absent a reasonable expectation that the same complaining party (here, ACA) would not be subject to the same action. In constitutional parlance, this type of short-term constitutional violation would be called a “capable of repetition, yet evading review” activity.
In addition, courts will not dismiss as moot cases in which the party that had engaged in the challenged activity voluntary ceases the activity—a fact pattern that may apply here, where the attorney general’s office made no effort to defend the emergency regulation following the court’s issuance of a substantive preliminary-injunction order in early May and simply allowed it to expire by operation of extrajudicial facts.
ACA’s response to the motion will be due in the coming weeks, and ACA will continue to provide updates on the case for members.