Nack v. Walburg: The United States Supreme Court Denies Petition for Certiorari of Eighth Circuit Decision Leaving Open Many Issues Regarding the FCC’s Authority Related to the TCPA

As you may recall, on May 22, 2013, we reported on the Eighth Circuit’s opinion in Nack v. Walburg, Case No. 11-1460 (8th Cir. May 21, 2012), an opinion in which the court raised the specter of constitutionality issues in TCPA class actions.  However, the Eighth Circuit ultimately did not decide those key issues, asserting that the defenses raised were challenges to the FCC’s regulations, which must first be raised before the agency pursuant to the Hobbs Act.  The full blog post can be found at http://www.workplaceclassaction.com/2013/05/eighth-circuit-raises-specter-of-constitutionality-issues-in-tcpa-class-actions/.

Following the ruling, on October 15, 2013, Defendant Walburg petitioned for a writ of certiorari.  See Petition for Writ of Certiorari, October 15, 2013.   In his petition, Walburg stated the question presented as “whether the Hobbs Act prohibits a defendant from raising the invalidity of an FCC regulation when that regulation forms the basis of a class action brought by a private party seeking crippling monetary damages.  Id at ii.  Notably, Walburg cited the circuit split between the Eight Circuit’s interpretation of the Hobbs Act and the Sixth Circuit’s interpretation as stated in Leyse v. Clear Channel Broadcasting, Inc., 697 F.3d 360 (6th Cir. 2012).   Id. at i.

To read this blog post click here