About a year ago, in Creasy v. Charter Communications, Inc., 2020 WL 5761117 (ED La. September 28, 2020), a federal district court in Louisiana ruled that the TCPA is unconstitutional as it applies to all appeals made between November 2015 and July 6, 2020. The Crumpled court started with detention Barr v. AAPC that the TCPA was void when an unconstitutional provision (government guaranteed debt exemption) was included. The court then ruled that the Supreme Court’s decision in Barr v. AAPC cannot be applied retroactively. Ultimately, the court determined that appeals made beforeAAPC were legal and cannot be made illegal by post hac Supreme Court action. Crumpled, along with several other district court decisions following the same logic, have dealt the TCPA yet another fatal blow.

On September 9, 2021, however, the Sixth Circuit became the first federal appeals court to dismiss. Creasy’s reasoning. In Lindenbaum v. Realgy, LLC, No. 20-4252, 2021 WL 4097320 (6th Cir. September 9, 2021), the Sixth Circuit decided that the TCPA could be applied in November 2015 and July 2020 – the period during which the government guaranteed debt exemption apparently existed. The Lindenbaum The court reviewed the decision of the Northern District Chief Justice of Ohio dismissing a putative class action lawsuit arising from pre-recorded appeals. Before the court of first instance, the defendant had requested the dismissal, arguing that “the separation can only be applied prospectively”, that the applicable legislative articles were unconstitutional when the appeals were made and that the courts did not have no jurisdiction to enforce unconstitutional laws. In opposition, the plaintiff argued that a footnote in the pluralist opinion of Judge Kavanaugh in Barr v. AAPC suggests “that the unbundling of the public debt exception apply retroactively to all currently pending cases”. The district court ruled in favor of the defendant and, following Crumpled, ruled that this issue “was not before the Supreme Court”, and the only footnote in Justice Kavanaugh’s plurality opinion is “the adoption of unprecedented Supreme Court rulings”. The court ruled that, although judicial interpretations of laws “have full retroactive effect in all cases still open to direct examination and for all events”, the separation is different because it is “a solution”. forward-looking judicial ”rather than a backward solution. looking for a judicial “remedy”. So, she concluded, the effect of the separation was to nullify the law during the period the public debt exception was in effect and dismiss the claims. The plaintiff appealed.

On appeal, the defendant argued that severability is a remedy that fixes an unconstitutional law, so that it can only apply prospectively. In the alternative, the defendant argued that if he could be held responsible for the period 2015 to 2020, but that the public collectors who had not been informed of the illegality of their actions could not , this would then recreate the same violation of the First Amendment that the Court recognized in AAPC. The Sixth Circuit rejected both of the Respondent’s arguments. First, the Sixth Circuit found that the Supreme Court recognized that the Constitution had automatically moved the public debt exception from the start, and “then interpreted what the law has always meant in its absence … This legal determination applies retroactively ”. 2021 WL 4097320 at * 4 (citations omitted). Second, the Sixth Circuit explained that the defendant’s free speech argument was flawed because fair notice is unrelated to speech. Rather, whether a debt collector had been fairly advised that he incurred liability under the TCPA depended on whether he reasonably believed that the law prohibited his conduct. The court noted: “[t]In turn, this will likely depend in part on whether the debt collector used robocalls to collect public debt or non-government debt. But applying the speech neutral fair opinion defense in the speech context does not turn it into a speech restriction. “

Complainants will certainly cite the Sixth Circuit decision in Lindenbaum to overcome the Crumpled case line. Corn Creasy’s logic is not yet dead. It is possible for other circuits to exit the other way, resulting in a circuit split and possibly a certification petition.

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