In Trujillo v. Free Energy Sav. Co., LLC, No. 5:19-cv-02072-MCS-SP, 2020 U.S. Dist. LEXIS 239730 (C.D. Cal. Dec. 21, 2020), Judge Scarsi rejected the argument that Barr created a finite period of constitutional infirmity for the TCPA.
Defendant does not present any authority deeming a statute ineffective, in whole or in part, where the statute suffered a finite period of constitutional infirmity bookended by periods of validity. Instead, in its briefing and at oral argument, Defendant highlighted Grayned v. City of Rockford, 408 U.S. 104, 107, 92 S. Ct. 2294, 33 L. Ed. 2d 222 & n.2 (1972), in which the Supreme Court reversed a conviction based on an invalid ordinance the state legislature amended after the conviction. (Mot. 8; Reply 5.) But there was no period before amendment where the ordinance was valid; the reasoning espoused in Frost and approved in AAPC could not have been applied to the ordinance in Grayned. Defendant cites Grayned for the proposition that “courts ‘must consider the facial constitutionality of the ordinance in effect when [the defendant] was arrested and convicted.'” (Reply 5 (alteration in original) (quoting Grayned, 408 U.S. at 107 n.2 [*11] ).) Defendant misleadingly advances a general rule where the quoted language is specific to the case at bar: the Grayned court considered the validity of a conviction under the pre-amendment ordinance, so the Court “[n]ecessarily” had to examine the facial constitutionality of the pre-amendment ordinance under which the person was convicted. Grayned, 408 U.S. at 107 & n.2. The Court respectfully declines to follow the reasoning of Creasy, Lindenbaum, and Hussain. The Creasy and Hussain courts did not discuss the Frost framework. The Lindenbaum court rejected the theory, relying on the AAPC plurality’s suggestion that government-debt collectors should be shielded from liability during the period the statute was unconstitutional. Lindenbaum, 2020 U.S. Dist. LEXIS 201572, at *17-18. As Defendant and the Lindenbaum court acknowledge, however, the footnote is dictum. (Mot. 11.) See Lindenbaum, 2020 U.S. Dist. LEXIS 201572, at *17. Although the plurality indicates that “no one should be penalized or held liable” for making government-debt robocalls, it does not hold, and has no reason to hold, that no government-debt collector can be penalized or held liable. 140 S. Ct. at 2355 n.12 (emphasis added). Nor does the plurality explain whether the contemplated liability shield arises from the enforceability of the statute as amended between 2015 and 2020, the unenforceability of the statute between 2015 and 2020, or due process considerations left undiscussed. In short, the footnote does not provide clear or binding guidance on the issue, and the Court need not decide the liability of government-debt collectors in this case. The AAPC plurality’s reasoning and the Ninth Circuit’s binding decision in Duguid both indicate that the robocall statute remains enforceable, at least against non-government-debt collectors, as to calls made between 2015 and 2020. Thus, the Court can adjudicate Plaintiff’s individual claim concerning Defendant’s non-government-debt collection messages sent in 2019.