In Vazquez v. Triad Media Solutions, Inc., 2016 WL 155044, at *4-5 (D.N.J., 2016), Judge Walls struck an affirmative defense in a TCPA text message case asserting EBR, strikes a ruinous penalty affirmative defense, but allows a First Amendment challenge to proceed.  Judge Walls  found EBR not properly asserted in a text message case because “The Third Circuit has held that the “established business relationship” exemption of 47 U.S.C. § 227(b)(1)(C)(i) applies “exclusively to residential lines, [and] there is no established business relationship … exemption that applies to autodialed calls made to cellular phones.” Gager v. Dell Fin. Servs., LLC, 7272 F.3d 265, 273 (3d Cir. 2013).”   Judge Walls did, however, allow a First Amendment Affirmative Defense to be pleaded.

Plaintiff cites cases in other Courts of Appeals and district courts outside the Third Circuit holding that the TCP A does not violate the First Amendment, see, e.g., Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1045 (9th Cir. 2012); Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649, 660 (8th Cir. 2003), but cites no precedent in the Third Circuit. Because the “insufficiency of the defense is not clearly apparent,” Kramer, 757 F. Supp. at 410, and Plaintiff’s motion “requires this court to determine an unclear question of law in the absence of binding circuit precedent,” Dann, 274 F.R.D. at 144, the Court denies Plaintiff’s request to strike the Eighth Affirmative Defense on the ground of legal insufficiency.

Judge Walls did not allow a “excessive fines” defense to be asserted.

In the Ninth Affirmative Defense, Defendant argues that “the aggregated statutory damages” sought by the class “may result in potential ruinous liability for Defendant, and may constitute excessive fines in violation of the United States Constitution, Eighth Amendment.” . . . The Supreme Court has held that the Eighth Amendment’s “Excessive Fines Clause” “does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.” Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264 (1989); see also Austin v. United States, 509 U.S. 602, 609-10 (1993) (“The purpose of the Eighth Amendment…was to limit the government’s power to punish…. The Excessive Fines Clause limits the government’s power to extract payments, weather in cash or in kind, as punishment for some offense.”) (internal quotations and citations omitted, emphasis in original); Leonen v. Johns-Manville Corp., 717 F. Supp. 272, 286 (D.N.J. 1989) (the Eighth Amendment “does not act to restrict such awards where the government has not prosecuted the suit or cannot share the recovery”) (citing Browning-Ferris, 492 U.S. at 264). The Government is not a plaintiff in this case, Plaintiff has not brought the suit on the Government’s behalf, and neither party argues that the Government could share in the potential recovery. The Excessive Fines Clause does not limit the potential award in this case, and Defendant does not attempt to argue that “potential ruinous liability” bars a private cause of action. The Court strikes Defendant’s Ninth Affirmative Defense with prejudice.