Second Court Rules TCPA Unconstitutional for Calls Made Before July SCOTUS Ruling

Another District Court judge has granted a defendant’s motion to dismiss in a Telephone Consumer Protection Act case on the basis that calls made to an individual’s cell phone using an automated telephone dialing system before July 6 — when the Supreme Court ruled in Barr v. American Association of Political Consultants — relinquished the court’s subject matter jurisdiction over the claims.

A copy of the ruling in the case of Lindenbaum v. Realgy, LLC can be accessed by clicking here.

This case, from the Northern District of Ohio, tracks a similar ruling that was issued last month by a Louisiana judge in Creasy v. Charter Communications.

In this case, the plaintiff alleges she received two pre-recorded calls, one to her cell phone and one to her landline, without providing her consent to receive such calls. The call to her cell phone was made before she filed her lawsuit against the defendant; the call to her landline was made after the suit was filed. The plaintiff filed her suit in December 2019.

In the period since the suit was filed, the Supreme Court issued its ruling in the Barr case, in which the Court struck down an exemption that was added to the TCPA in 2015 allowing the use of ATDS’s when contacting individuals on their cell phones — without first obtaining prior consent — to collect on debts that were owed to, or guaranteed by, the federal government.

The defendant in the Lindenbaum case argued that the TCPA was unconstitutional between 2015 — when the exemption was added — through July 6 — when the Supreme Court issued its ruling. Thus, the plaintiff lacked subject matter jurisdiction to file her suit.

“The Court cannot wave a magic wand and make that constitutional violation disappear,” wrote Judge Patricia Gaughan of the District Court for the Northern District of Ohio, Eastern Division. “Because the statute at issue was unconstitutional at the time of the alleged violations, this Court lacks jurisdiction over this matter.”

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