In Buell v., No. 4:21-cv-01055-KAW, 2021 U.S. Dist. LEXIS 142763, at *1 (N.D. Cal. July 30, 2021), Judge Westmore refused to strike TCPA class allegations following Barr v. APAC. 

On April 19, 2021, Defendant, Inc. filed a motion to strike Plaintiff Angela Buell’s class allegations on the grounds that the recent United States Supreme Court decision in Barr v. American Association of Political Consultants, Inc., 140 S. Ct. 2335 (2020) (“AAPC”), renders the robocall restriction unconstitutional for the five-year period preceding the decision, thereby significantly narrowing the putative class period.  pon review of the moving papers, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, DENIES Defendant’s motion to strike.

The District Court explained:

Here, the alleged robocalls were not protected by the government-debt exception, and, at the very least, six Justices—Chief Justice Roberts, and Justices Kavanaugh, Alito, Breyer, Ginsburg, and Kagan—clearly agreed that Defendant could still be held liable for all robocalls made after the enactment of the unconstitutional exception. See 140 S. Ct. 2355 n.12 (Kavanaugh, J.); Id. at 2357-63 (Breyer, J., concurring in judgment with respect to severability and dissenting in part).  Finally, the Court is not persuaded by Defendant’s reliance on Creasy, 489 F. Supp. 3d at 507, where the district court reasoned that the exception fundamentally altered the entire statute and required that it be enforced prospectively. (See Def.’s Mot. at 6.) In Creasy, the court held that the entire robocall restriction was void because “it itself was repugnant to the Constitution before the Supreme Court restored it to constitutional health in AAPC.” 489 F. Supp. 3d at 507 (emphasis in original). The undersigned, however, is unpersuaded by this rationale because the majority of sitting justices found it proper “to sever the 2015 government-debt exception and leave in place the longstanding robocall restriction.” AAPC, 140 S. Ct. at 2355. Defendant’s reliance on Hussain, 2020 WL 7346536, at *3, is similarly misplaced. (Def.’s Mot. at 7.) In that case, the court found that “[t]he 2015 amendment, adding the government-debt exception, changed an otherwise valid statute to an unconstitutional content-based restriction.” Hussain, 2020 WL 7346536, at *3 (citing AAPC, 140 S. Ct at 2347-48.) The Hussain court’s determination would be persuasive if the Supreme Court had struck down the entire 1991 robocall restriction. Instead, the Supreme Court only invalidated the 2015 government-debt exception. AAPC, 140 S. Ct. at 2348, 2355.  Accordingly, the Court finds that the TCPA’s general robocall restriction remained intact from 1991 onward, which includes the entire putative class period, and requires that the pending motion to strike be denied.