ENERGY SUPPLIER LITIGATION UPDATE – EMERGING TCPA DEFENSE
November 23, 2020
A new defense to certain Telephone Consumer Protection Act (“TCPA”) claims is emerging. This is important to energy suppliers because many, if not most, rely on third-party telemarketing calls to sell their energy products. As a result of these telemarketing efforts, suppliers are often the target of lawsuits alleging violations of the TCPA despite their best efforts to comply with the statute. When this unfortunately occurs, defending even meritless TCPA claims is often a costly and burdensome endeavor.
Two recent federal district court cases, Creasy v. Charter Communications and Lindenbaum v. Realgy (see links below), provide a new and emerging argument that energy suppliers may deploy to defend against difficult TCPA claims. In short, these cases hold that because the United States Supreme Court deemed a portion of the TCPA unconstitutional between 2015 and 2020, courts have no subject matter jurisdiction to enforce the entire statute for alleged violations during this period. It is expected that this argument will be raised in other federal district courts and, at some point, will percolate up through the federal courts of appeal.
Creasy v. Charter Communications
For more information or to discuss these developing issues, please contact one of the following Eckert attorneys: Charlie Zdebski at czdebski@eckertseamans.com or 202-659-6605, or Jeff Brundage at jbrundage@eckertseamans.com or 202-659-6676.