Appeals court sides with consumers in Realgy robocall lawsuit

A gavel and a block is pictured at the George Glazer Gallery antique store in this illustration picture taken in Manhattan, New York City
REUTERS/Andrew Kelly
  • Judicial decisions apply retrospectively, the court held
  • Ruling allows case to proceed

(Reuters) - A federal appeals court on Thursday revived a proposed class action against energy supplier Realgy LLC over unsolicited calls, handing plaintiffs a victory as federal courts weigh arguments over the constitutionality of a federal robocall law during the five years between 2015 and 2020.

The 6th U.S. Circuit Court of Appeals reversed a 2020 Ohio district court ruling that the Telephone Consumer Protection Act was unconstitutional, and therefore unenforceable, when Realgy allegedly placed the pre-recorded calls to plaintiff Roberta Lindenbaum, because of a U.S. Supreme Court ruling that severed an unconstitutional section of the law.

Ellen Noble of Public Justice, who represented Lindenbaum in her appeal, called the decision "a big win for consumers."

"The court held that companies do not get a free pass for five years of robocalling in violation of the Telephone Consumer Protection Act simply because a separate, severable part of the statute was deemed unconstitutional," she said in an email.

Ryan Watstein of Kabat Chapman & Ozmer, a lawyer for Realgy, said the ruling "is a significant blow to free speech."

"In reaching the incorrect conclusion that judicial severance always applies retroactively, regardless of Congress's intent, the panel ignored binding Supreme Court precedent," he said in an email, adding that the court "mischaracterized" arguments made by Realgy and others who filed amicus briefs and that they are considering options as to next steps.

U.S. Circuit Court Judge John Bush penned the 6th Circuit opinion, joined by Circuit Judges Julia Smith Gibbons and Jane Branstetter Stranch.

The U.S. government intervened in support of Lindenbaum. Each side had support in their arguments from outside companies and groups. Public Citizen, the National Consumer Law Center and a group of state attorneys general are among those that weighed in through amicus briefs in support of Lindenbaum, while Facebook Inc, the U.S. Chamber of Commerce and others came out in support of Realgy.

The five-year period at issue extends from November 2015, when Congress carved out an exception under the law for robocalls made to collect government-backed debt, until the U.S. Supreme Court struck down and severed the exception from the rest of the statute in July 2020. That decision was Barr v. American Association of Political Consultants.

The 6th Circuit panel on Thursday said it disagreed with Realgy's assertion that "severability is a remedy that fixes an unconstitutional statute, such that it can only apply prospectively."

"To sum up, the district court erred in concluding that, in AAPC, the Supreme Court offered 'a remedy in the form of eliminating the content-based restriction' from the TCPA," the appeals court said.

Severability "is no exception" to the principle that judicial decisions apply restrospectively, the court said.

Other courts around the country have considered similar arguments to Realgy's since the Supreme Court decision. Noble, in her email, said that district courts "were already catching on" and she hopes the new ruling "is the final nail in the coffin."

The case is Lindenbaum v. Realgy LLC, 6th U.S. Circuit Court of Appeal, No. 20-4252.

For Lindenbaum: Ellen Nobel of Public Justice

For Realgy: Ryan Watstein of Kabat Chapman & Ozmer

For the United States: Lindsey Powell of the U.S. Department of Justice

Read more:

States, consumer groups back TCPA plaintiff at 6th Circuit

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Sara Merken reports on privacy and data security, as well as the business of law, including legal innovation and key players in the legal services industry. Reach her at