Buell v. Credit.com, Inc.

Background

Angela Buell filed a class action against Credit.com, Inc., alleging violations of the Telephone Consumer Protection Act, a federal law regulating certain automated and prerecorded telephone calls. Buell alleged that Credit.com made three prerecorded telemarketing calls to her cellphone in February 2021. She alleged that her number had been on the National Do Not Call Registry since April 2013, that she had not consented to the calls, and that she was not seeking services from Credit.com or its partners.

Buell sought certification of two classes: a Pre-recorded No Consent Class and a Do Not Call Registry Class. Credit.com’s motion concerned only the proposed Pre-recorded No Consent Class, which covered people in the United States allegedly called by Credit.com or its agent with prerecorded messages during the period beginning four years before the lawsuit was filed and continuing through trial.

The Motion to Strike

Credit.com moved under Federal Rule of Civil Procedure 12(f) to strike class allegations covering the period when the Telephone Consumer Protection Act contained an exception for calls made to collect government debt. A Rule 12(f) motion allows a court to remove matter from a pleading when it is an insufficient defense or is redundant, immaterial, impertinent, or scandalous. The court explained that using this rule to resolve class issues is generally disfavored and that striking allegations is appropriate only in the circumstances identified by the rule.

Credit.com relied on the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. In that decision, the Supreme Court held that the government-debt exception was an unconstitutional content-based restriction on speech and severed the exception from the broader robocall restriction. Credit.com argued that the entire robocall restriction was unconstitutional from the exception’s enactment in 2015 until the Supreme Court severed the exception in 2020. It therefore asked the court to limit the proposed class period to July 6, 2020, the date of the Supreme Court’s decision, through trial.

Buell argued that the Supreme Court’s decision left the general robocall restriction intact and that the Supreme Court’s statement concerning liability for calls made between 2015 and 2020 was binding. The court agreed with Buell’s position.

Court’s Analysis

The court concluded that the Supreme Court’s severability analysis was supported by seven Justices. It found persuasive the reasoning of a prior related proceeding holding that the Supreme Court’s statement about liability was not merely nonbinding commentary because six other Justices joined the severability conclusion. The court also noted that Justices Breyer, Ginsburg, and Kagan agreed that the defendant could be held liable, even though they would not have found the 2015 amendment unconstitutional.

The court rejected Credit.com’s reliance on decisions that treated the entire robocall restriction as unenforceable during the period between the 2015 amendment and the 2020 Supreme Court decision. It reasoned that the Supreme Court invalidated only the government-debt exception, rather than the entire 1991 robocall restriction. The court therefore held that the general robocall restriction remained intact from 1991 onward, including throughout the proposed class period.

Disposition

The court denied Credit.com’s motion to strike. The proposed class allegations covered by the motion were not removed. The court also ordered Credit.com to file an answer within 14 days of the order.