563 F.Supp.3d 464
E.D.N.C.2021Background
- Plaintiff Tiffanie Hogans (non-Spectrum customer in Fayetteville, NC) received ~50 calls, ~50 texts, and ~10 voicemails from Charter beginning January 2020 and alleges they were unlawful robocalls/texts under the TCPA. She twice replied "STOP" to texts but continued to receive messages.
- Hogans filed a putative class action seeking relief under 47 U.S.C. § 227(b)(3) and class certification for calls from October 26, 2016 through class certification.
- Charter moved to dismiss under Rules 12(b)(1) and 12(b)(6) and to strike class allegations, relying heavily on the Supreme Court's decision in Barr v. American Ass'n of Political Consultants, Inc. (AAPC) and on Creasy v. Charter (E.D. La.).
- Key legal questions: whether Creasy precludes Hogans via collateral estoppel; whether AAPC deprived the court of subject-matter jurisdiction or merely affects the merits; and whether AAPC (or the Fourth Circuit's pre-AAPC decision) applies retroactively to permit liability for the alleged calls.
- The court concluded it had federal-question jurisdiction under § 227(b)(3), rejected collateral estoppel, held AAPC applies retroactively (or, alternatively, the Fourth Circuit precedent governed during the relevant period), and denied Charter's motions to dismiss and to strike class allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collateral estoppel based on Creasy | Creasy dismissal was jurisdictional in a different context and does not preclude relitigation here; Fourth Circuit precedent governed in this circuit | Creasy resolved the same jurisdictional question and Hogans litigated that case, so issue preclusion should bar her claims here | Denied: Creasy's issue was not identical; Judge Feldman declined to address the Fourth Circuit effect, so collateral estoppel does not apply |
| Subject-matter jurisdiction post-AAPC | § 227(b)(3) creates a federal cause of action and plaintiff pleaded a colorable federal claim; AAPC impacts the merits, not jurisdiction | AAPC rendered §227(b)(1)(A)(iii) unconstitutional during the operative period, so federal courts lack jurisdiction to enforce it | Denied dismissal under Rule 12(b)(1): court has §1331 jurisdiction via §227(b)(3); AAPC implicates the merits, not the court's power to hear the case |
| Retroactivity and effect of AAPC on liability | AAPC's severance of the government-debt exception is a judicial construction that applies retroactively; Fourth Circuit had already invalidated the exception in this circuit before plaintiff's calls | AAPC's severance should be prospective only (no retroactive liability) or at least not applied against defendants who relied on the pre-AAPC statutory framework | Held that AAPC applies retroactively (and in any event Fourth Circuit precedent was binding in the circuit from July 1, 2019); plaintiff plausibly alleged violations and dismissal under Rule 12(b)(6) is improper |
| Motion to strike class allegations | Class allegations are plausibly pleaded and fit Rule 23(b)(3); class issues require discovery | Strike class: earlier-filed actions and AAPC effect defeat class certification at the pleading stage | Denied: court will not resolve class certification on the pleadings; class allegations survive to allow pre-certification discovery |
Key Cases Cited
- Barr v. Am. Ass'n of Political Consultants, Inc., 140 S. Ct. 2335 (2020) (addressed First Amendment challenge and severed government-debt exception to the TCPA)
- Creasy v. Charter Communications, Inc., 489 F. Supp. 3d 499 (E.D. La. 2020) (district court dismissed similar TCPA claims post-AAPC for lack of jurisdiction)
- Am. Ass'n of Political Consultants v. FCC, 923 F.3d 159 (4th Cir. 2019) (Fourth Circuit invalidated the government-debt exception)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) (standards for dismissal for lack of subject-matter jurisdiction)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishing jurisdictional limits from claim elements)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) (§227(b)(3) confers federal-question jurisdiction)
- Marks v. United States, 430 U.S. 188 (1977) (interpretive rule for fragmented Supreme Court decisions)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (retroactivity principles for judicial decisions)
- Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (finality and courts’ role in declaring law)
- Ex parte Siebold, 100 U.S. 371 (1879) (unconstitutional statutes and jurisdictional consequences)