IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ANGEL BAKOV and KINAYA 

HEWLETT, individually and on 

behalf of all others similarly situated, 

Plaintiffs, 

v. 

CONSOLIDATED TRAVEL 

HOLDINGS GROUP, INC., JAMES H. 

VERRILLO, DANIEL E.LAMBERT, 

JENNIFER POOLE, and DONNA 

HIGGINS, 

Defendants. 

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Case No. 1:20-cv-02459 

Hon. Harry D. Leinenweber 

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER 

JURISDICTION AND INCORPORATED MEMORANDUM OF LAW

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Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants Consolidated Travel 

Holdings Group, Inc., James H. Verrillo, Daniel E. Lambert, Jennifer Poole, and Donna Higgins 

file this Motion to Dismiss, and in support thereof state as follows: 

PRELIMINARY STATEMENT 

Plaintiffs’ lawsuit aims to enforce a statutory provision that, at the time of many of the 

telephone calls at issue in this class action, was facially unconstitutional and thus cannot be 

enforced. Plaintiffs’ claims are brought under a provision of the Telephone Consumer Protection 

Act, 47 U.S.C. § 227 et seq. (“TCPA”), that the Supreme Court recently declared to be in violation 

of the First Amendment and unconstitutional. Barr v. Am. Ass’n of Political Consultants, Inc, 140 

S. Ct. 2335 (2020) (“AAPC”). To preserve the statute, the Supreme Court severed the 

“government-debt exception,” which impermissibly exempted from the provision telephone calls 

that were “made solely to collect a debt owed to or guaranteed by the United States.” 

But, under settled and bedrock principles of law, and as held by two courts – the only courts 

so far to address this issue – that severance applies prospectively only. Thus, because 

approximately one-third of the telephone calls at issue took place when the unconstitutional 

government-debt exception applied to the TCPA provisions at issue, from November 2, 2015 to 

March 20, 2016, this Court lacks subject-matter jurisdiction over any claims as to those telephone 

calls, and dismissal of those claims is required. 

STATEMENT OF FACTS 

Plaintiffs commenced this lawsuit on April 22, 2020. See Dkt. No. 1. Defendants’ Rule 

12(b)(6) motion to dismiss the Second Amended Complaint (“SAC”) is fully briefed and sub 

judice. In this lawsuit, Plaintiffs allege violations of both 47 U.S.C. §§ 227(b)(1)(A)(iii) & 

(b)(1)(A)(B), and seek to represent the following class: 

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All persons in the United States (1) who Virtual Voice Technologies called from 

December 29, 2014 through March 20, 2016, to market a cruise aboard the Grand 

Celebration cruise liner sold by Consolidated Travel [a/k/a “Holiday Cruise Line”], 

and (2) who answered such calls. 

Dkt. No. 33 at ¶ 93. See also id. at page 20 (asserting Count I under both TCPA provisions). 

The fifteen-month class period thus overlaps for nearly five months with the period of time 

during which the “government-debt exception” applied to the TCPA, i.e., from November 2, 2015, 

when it was added to the TCPA, (Bipartisan Budget Act of 2015, Pub. L. 114-74, 129 Stat. 584, 

title III, § 301(a)(1) (2015)), to the end of the class period, March 20, 2016, before AAPC was 

decided. As for the named plaintiffs, Plaintiff Kinaya Hewlett alleges that she received telephone 

calls from Virtual Voice Technologies related to Holiday Cruise Line on, among other dates, 

“March 8, 2016, and March 14, 2016.” Dkt. No. 33 at ¶ 14. 

ARGUMENT 

I. APPLICABLE LEGAL STANDARDS ON THE RULE 12(B)(1) MOTION 

A motion to dismiss for lack of subject-matter jurisdiction is brought under Federal Rule 

of Civil Procedure 12(b)(1). “Jurisdiction to resolve cases on the merits requires both authority 

over the category of claim in suit (subject-matter jurisdiction) and authority over the parties 

(personal jurisdiction) . . . .” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). “The 

requirement that [subject-matter] jurisdiction be established as a threshold matter . . . is ‘inflexible 

and without exception,’ for ‘[j]urisdiction is power to declare the law,’ and ‘[w]ithout jurisdiction 

the court cannot proceed at all in any cause.’” Id. (quoting Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83, 94-95 (1998) (internal citations omitted)). As “the party who seeks the exercise of 

jurisdiction in his favor,” the plaintiff “must carry throughout the litigation the burden of showing 

that he is properly in court.” McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 

189 (1936). When a court lacks subject-matter jurisdiction, “the only function remaining to the 

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court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 

514 (1868). 

II. THE COURT LACKS SUBJECT-MATTER JURISDICTION OVER TCPA 

CLAIMS FOR ABOUT A THIRD OF THE CLASS PERIOD 

A. The Supreme Court’s AAPC Ruling 

In AAPC, the issues presented were “[w]hether the government-debt exception to the 

TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy 

for any constitutional violation is to sever the exception from the remainder of the statute.” No. 

19-631, 2019 WL 6115075, *I (U.S. Nov. 14, 2019). See also AAPC, 140 S. Ct. 812 (2020) 

(granting petition for certiorari). On July 6, 2020, the Supreme Court decided AAPC. The Court’s 

Opinion was a deeply fractured plurality, but a majority of justices were able to agree on two 

things: (1) “Six Members of the Court . . . conclude that Congress has impermissibly favored debtcollection speech over political and other speech, in violation of the First Amendment” and the 

government-debt exception could not pass strict scrutiny; and (2) “seven members of the Court 

conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 

government-debt exception must be invalidated and severed from the remainder of the statute.” 

AAPC, 140 S. Ct. at 2343. 

B. The Invalidation of the TCPA Provisions at Issue as Unconstitutional 

Precludes Subject-Matter Jurisdiction 

The Supreme Court’s determination of unconstitutionality in AAPC renders Section 

227(b)(1)(A)(iii) void and deprives this Court of subject-matter jurisdiction over any calls alleged 

to be in violation of that provision or § 227(b)(1)(B) from November 2, 2015 to the end of the 

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class period. 1 Although the Supreme Court “cure[d] that constitutional violation by invalidating 

the 2015 government-debt exception and severing it from the remainder of the statute,” (id. at 

2356), that was prospective only, and does not alter or eliminate the fact that for nearly five years 

– and for five months of the class period – Sections 227(b)(1)(A)(iii) and (b)(1)(B) were 

unconstitutional and void, meaning the Court has no jurisdiction to enforce those provisions 

against Defendants for calls placed during that five-month period. As two district courts have 

already found, that conclusion necessarily follows from the AAPC ruling. See Lindenbaum v. 

Realgy, LLC, No. 1:19 CV 2862, 2020 WL 6361915, *7 (N.D. Ohio Oct. 29, 2020) (“Because the 

statute at issue was unconstitutional at the time of the alleged violations, this Court lacks 

jurisdiction over this matter.”); Creasy v. Charter Commc’ns, Inc., No. CV 20-1199, 2020 WL 

5761117, *2 (E.D. La. Sept. 28, 2020) (“That fact deprives the Court of jurisdiction over much of 

this action.”). 

It is axiomatic that a person cannot violate a statutory provision that was unconstitutional 

at the time of the alleged violation. Chief Justice Marshall delineated that “[a]n act of congress 

repugnant to the constitution cannot become a law.” Marbury v. Madison, 5 U.S. 137, 138 (1803). 

Thus, “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords 

no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never 

been passed.” Norton v. Shelby County, 118 U.S. 425, 442 (1886). A corollary to that bedrock 

principle is that “[i]f the law which defines the offense and prescribes its punishment is void, the 

court [is] without jurisdiction.” The Ku Klux Cases, 110 U.S. 651, 654 (1884). Indeed, the courts 

 

1

 While AAPC concerned 47 U.S.C. § 227(b)(1)(A)(iii), Congress added the same impermissible 

government-debt exception to § 227(b)(1)(B) at the same time, and the same reasoning applies for 

its unconstitutionality as well. See 129 Stat. 584, title III, §§ 301(a)(1)(A) & (B). 

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have long held that “if the laws are unconstitutional and void, the [federal court has] no jurisdiction 

of the causes,” because “[a]n unconstitutional law is void, and is as no law” so that “[a]n offence 

created by it is not a crime.” Ex parte Siebold, 100 U.S. 371, 376, 377 (1879). See also 

Montgomery v. La., 136 S. Ct. 718, 731 (2016) (“A conviction or sentence imposed in violation of 

a substantive rule is not just erroneous but contrary to law and, as a result, void. It follows, as a 

general principle, that a court has no authority to leave in place a conviction or sentence that 

violates a substantive rule . . . .”) (citing Siebold, 100 U.S. at 376). 

In other words, “once a statute has been declared unconstitutional, the federal courts 

thereafter have no jurisdiction over alleged violations (since there is no valid ‘law of the United 

States’ to enforce) . . . .” United States v. Baucum, 80 F.3d 539, 540-41 (D.C. Cir. 1996). See also 

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759-60 (1995) (Scalia, J., concurring) (“[W]hat a 

court does with regard to an unconstitutional law is simply to ignore it. It decides the case 

‘disregarding the [unconstitutional] law,’ because a law repugnant to the Constitution ‘is void, 

and is as no law.’”) (quoting Marbury, 5 U.S. at 178; Siebold, 100 U.S. at 376)). Here, the 

unconstitutional “law” is both TCPA provisions upon which approximately one-third of the class 

claims (representing telephone calls in five of the fifteen months in the class period) are premised, 

and because that law at the time of those alleged violations was “repugnant to the constitution 

[and] void,” (Marbury, 5 U.S. at 180), the Court lacks jurisdiction to adjudicate those class claims 

and claims regarding the March 2016 telephone calls Hewlett says she received. 

Applying these principles, the two district courts to have addressed this issue in the wake 

of AAPC concluded, both in thorough and reasoned decisions, that the courts lack subject-matter 

jurisdiction to hear claims brought under § 227(b)(1)(A)(iii) for telephone calls alleged to have 

taken place when the statute was unconstitutional and could not be enforced. See Lindenbaum, 

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2020 WL 6361915 at *2-8; Creasy, 2020 WL 5761117 at *1-7. Both courts emphasized that there 

is no subject-matter jurisdiction to enforce a law that unconstitutionally restricted speech when the 

speech allegedly took place. In Creasy, the court observed that “a speaker should not be punished 

for engaging in speech that was restricted in an unconstitutional fashion.” 2020 WL 5761117 at 

*3. Similarly, in Lindenbaum, the court reasoned, “at the time defendants engaged in the speech 

at issue, defendant was subject to an unconstitutional content-based restriction. The Court cannot 

wave a magic wand and make that constitutional violation disappear.” 2020 WL 6361915 at *7. 

Both courts relied upon Grayned v. City of Rockford, where the Supreme Court noted, in a 

constitutional challenge to a content-based speech restriction, that even though the anti-picketing 

provision at issue was later removed by the legislature, courts “[n]ecessarily . . . must consider the 

facial constitutionality of the ordinance in effect when [the defendant] was arrested and convicted.” 

408 U.S. 104, 107 n.2 (1972). In other words, the inquiry is whether the offending statute was 

constitutional at the time the alleged speech or violation occurred, not whether it was 

subsequently cured by legislative or, as in the case of the TCPA’s government-debt exception, 

judicial action.2 And it is undeniable that §§ 227(b)(1)(A)(iii) and 227(b)(1)(B) were 

unconstitutional from November 2, 2015 through the end of the proposed class period, i.e., March 

20, 2016. 

While the Supreme Court severed the government-debt exception in AAPC, “severance of 

 

2 See also, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1699 n.24 (2017) (“[A] defendant 

convicted under a law classifying on an impermissible basis may assail his conviction without 

regard to the manner in which the legislature might subsequently cure the infirmity.”); 

Montgomery, 136 S.Ct. at 731 (explaining that a “penalty imposed pursuant to an unconstitutional 

law is no less void because the prisoner’s sentence became final before the law was held 

unconstitutional. There is no grandfather clause that permits States to enforce punishments the 

Constitution forbids. To conclude otherwise would undercut the Constitution’s substantive 

guarantees.”). 

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the government-debt exception applies only prospectively.” Lindenbaum, 2020 WL 6361915 at 

*3. See also Arthrex, Inc. v. Smith & Nephew, Inc., 953 F.3d 760, 767 (Fed. Cir. 2020) (O’Malley, 

J., concurring) (“[J]udicial severance is not a ‘remedy’; it is a forward-looking judicial fix.”). As 

the Lindenbaum court explained, “severance of the content-based restriction does not offer a 

‘remedy’ to correct past harm. Here, defendants do not seek the right to speak, having already 

done so. They seek the right to be free from punishment for speaking during a time when an 

unconstitutional content-based restriction existed. A forward-looking fix offers no remedy for this 

past wrong.” 2020 WL 6361915 at *6. 

In support of that finding, the Lindenbaum court relied upon the Supreme Court’s decision 

in Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), which was 

issued a week before AAPC. There, the Supreme Court severed a provision regarding removal of 

the head of the agency that rendered prior agency decisions unconstitutional, but remanded the 

case to address whether the subject act was validly ratified. See Seila Law, 140 S. Ct. at 2208. As 

the Lindenbaum court observed, “[i]f severance applied retroactively, there would be no need for 

the past acts to be ratified.” 2020 WL 6361915 at *6 n.1. Rather, the “government-debt” exception 

made the entirety of §§ 227(b)(1)(A)(iii) and 227(b)(1)(B) that contained it unconstitutional and 

unenforceable, and this Court lacks subject-matter jurisdiction to impose liability upon Defendants 

for any violations of those provisions. See id. at *7 (“The insertion of the government-debt 

exception transformed this valid time, place, and manner restriction into an unconstitutional 

content-based restriction.”); Creasy, 2020 WL 5761117 at *5 (“[T]he entirety of the pre-severance 

version of § 227(b)(1)(A)(iii) is void because it itself was repugnant to the Constitution before the 

Supreme Court restored it to constitutional health in AAPC.”). Dismissal of class claims and 

Hewlett’s claims over telephone calls from November 2, 2015 to March 20, 2016 is therefore 

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required. 

C. Nothing in AAPC Requires or Persuasively Calls for a Different Result 

Given that AAPC was a declaratory judgment action, it is unsurprising that the Supreme 

Court did not decide the ruling’s impact on alleged violations during the unconstitutional period 

of Section 227. Plaintiffs may attempt to rely upon obiter dictum in the plurality opinion to avoid 

dismissal, but such an attempt would be unavailing. 

As the court in Creasy observed, on the question being raised by this Motion, AAPC offers 

“precious little. In the few lines of nonbinding dicta shedding any light on the issue, the Court 

offered a pair of squarely contradictory answers.” 2020 WL 5761117 at *2. See also Lindenbaum, 

2020 WL 6361915 at *5 (“[T]his Court agrees with the characterization of footnote 12 set forth in 

. . . Creasy . . . .”). In a footnote, the plurality opinion – in which only Chief Justice Roberts, 

Justice Alito, and Justice Kavanaugh joined – suggests that no one who had impermissibly been 

favored by Congress (government debt collectors) “should be penalized or held liable for making 

robocalls to collect government debt after the effective date of the 2015 government-debt 

exception and before the entry of final judgment by the District Court on remand in this case, or 

such date that the lower courts determine is appropriate.” 140 S.Ct. at 2355 n.12. 

As for the other callers during that time who were the victims of Congress’s impermissible 

and unconstitutional content discrimination, the plurality opinion simply states, without any 

explanation or reference to the principle that an unconstitutional law is repugnant and void, “[o]n 

the other side of the ledger, our decision today does not negate the liability of parties who made 

robocalls covered by the robocall restriction.” Id. Justice Gorsuch, in the portion of his opinion 

joined by Justice Thomas, disagreed with that “suggest[ion],” explaining that “[a] holding that 

shields only government-debt collection callers from past liability under an admittedly 

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unconstitutional law would wind up endorsing the very same kind of content discrimination we 

say we are seeking to eliminate.” Id. at 2366. 

Nothing in that disagreement undercuts the conclusion that the Court lacks subject-matter 

jurisdiction over claims seeking to impose liability under an unconstitutional law. To begin with, 

as the court in Creasy correctly observed, the plurality opinion’s footnote suggestion is not binding 

or controlling because it constitutes the opinion of only three justices and, in any event, is no more 

than “passing Supreme Court dicta of no precedential force . . . .” 2020 WL 5761117 at *2. 

Moreover, the plurality’s suggestion that liability could still be imposed upon defendants 

under a law at the time that it was unconstitutional does not square with the constitutional 

jurisprudence developed over two hundred years that supports Justice Gorsuch’s position. The 

Creasy court relied on that jurisprudence to “conclude[ ] that Justice Gorsuch’s is the better 

argument as a matter of law and logic.” 2020 WL 5761117 at *2. See also Lindenbaum, 2020 

WL 6361915 at *5 (“Absent footnote 12, the Court finds little, if any, support for the conclusion 

that severance of the government-debt exception should be applied retroactively so as to erase the 

existence of the exception.”). The plurality opinion’s passing suggestion in a footnote does not 

mention or consider any of that case law. One would think that if three Supreme Court justices 

intended to overrule that important case law, they would have done so explicitly, especially when 

no party asked them to do so and it was not briefed. Accord Shalala v. Ill. Council on Long Term 

Care, Inc., 529 U.S. 1, 18 (2000) (“This Court does not normally overturn, or so dramatically limit, 

earlier authority sub silentio.”). 

AAPC does not address, let alone upend, the constitutional principles that preclude subjectmatter jurisdiction over claims asserting violations of a law when the law was unconstitutional. 

The court in Creasy emphasized both that “a speaker should not be punished for engaging in speech 

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that was restricted in an unconstitutional fashion,” which is what Plaintiffs’ TCPA claims would 

seek to do here for approximately one-third of the class period, and that “once a statute has been 

declared unconstitutional, the federal courts thereafter have no jurisdiction over alleged violations 

(since there is no valid ‘law of the United States’ to enforce).” 2020 WL 5761117 at *3 (quoting 

Grayned, 408 U.S. at 107 n.2; Baucum, 80 F.3d at 541-42). These principles take on outsized 

significance in this case give the nature of the Supreme Court’s holding in AAPC, which was that 

in adding the government-debt exception, Congress impermissibly and unconstitutionally favored 

certain speech (collection of government debt) over all others. This addition “fundamentally 

alter[ed] the entire provision [Section 227] . . . . Without the exception, § 227(b)(1)(A)(iii) bans 

the gamut of robocalls with no regard to content. With the exception, it allows robocalls of one 

category, while banning all others. This distinction is plain, and it drove the binding result in 

AAPC.” Id. The effect of the government-debt exception thus was to render “the entirety of the 

pre-severance version of § 227(b)(1)(A)(iii) . . . void because it itself was repugnant to the 

Constitution before the Supreme Court restored it to constitutional health in AAPC.” Id. 

The Lindenbaum court ruled similarly. It echoed Justice Gorsuch’s astute observation in 

critiquing the plurality opinion’s suggestion that liability could still be imposed against defendants 

not covered by the government debt-exception notwithstanding the ruling that that version of the 

provision was unconstitutional, as that would perpetuate the content discrimination that led to the 

invalidation of Section 227 as it existed from November 2, 2015 to July 6, 2020. See AAPC, 140 

S.Ct. at 2366 (“[A] holding that shields only government-debt collection callers from past liability 

under an admittedly unconstitutional law would wind up endorsing the very same kind of content 

discrimination we say we are seeking to eliminate.”). The Lindenbaum court reasoned, 

if the statute is not considered void ab initio, it contains an unconstitutional contentbased restriction that improperly favors some speech over other speech. And, to 

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treat it as void ab initio only as to certain parties [i.e., government debt collectors] 

would likely raise its own set of equal treatment concerns–the very concern raised 

by the AAPC dissent. The fact remains that at the time the robocalls at issue in this 

lawsuit were made, the statute could not be enforced as written. And, a later 

amendment to a statute cannot be retroactively applied. 

Lindenbaum, 2020 WL 6361915 at *7 (citing Grayned, 408 U.S. at 107 n.2). 

Basic and fundamental notions of due process, reinforced in hundreds of years of 

constitutional jurisprudence, make clear that the unconstitutional provisions of the TCPA at issue 

in this lawsuit are void for purposes of this case as of November 2, 2015 and this Court lacks 

subject-matter jurisdiction over claims seeking to impose liability under such void and 

unconstitutional provisions from that date forward. Otherwise, government debt collectors would 

continue to enjoy preferential treatment – protection from liability – while anyone engaging in 

other speech during the unconstitutional period would continue to face the prospect of ruinous 

liability,3 even though the law being enforced was unconstitutional at the time of that speech 

precisely because of that type of favoritism. 

CONCLUSION

When a court lacks subject-matter jurisdiction, “the only function remaining to the court is 

that of announcing the fact and dismissing the cause.” McCardle, 7 Wall. at 514. For the 

foregoing reasons, Defendants respectfully request that the Court enter an order dismissing all 

claims based upon violations of 47 U.S.C. §§ 227(b)(1)(A)(iii) or (b)(1)(B) from November 2, 

2015 through the end of the proposed class period and, if necessary, July 6, 2020 for lack of 

subject-matter jurisdiction; and providing any other relief the Court deems just and appropriate. 

Dated: November 5, 2020 GREENSPOON MARDER LLP 

 

/s/ Roy Taub 

JEFFREY A. BACKMAN, ESQ 

 

3 See, e.g., McMillon v. Rash Curtis & Assoc., No. 4:16-CV-03396-YGR (N.D. Cal. May 4, 2020) 

(judgment awarding class damages for TCPA violations in amount of $267,349,000). 

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(Fla. Bar No. 0662501) 

jeffrey.backman@gmlaw.com 

RICHARD W. EPSTEIN, ESQ. 

(Fla. Bar No. 229091) 

richard.epstein@gmlaw.com 

ROY TAUB, ESQ. 

(Fla. Bar No. 116263) 

roy.taub@gmlaw.com 

200 East Broward Blvd., Suite 1800 

Fort Lauderdale, Florida 33301 

954-491-1120 (Telephone) 

954-343-6958 (Facsimile) 

and 

TABET DIVITO & ROTHSTEIN LLC 

Timothy Hudson 

The Rookery Building 

209 South LaSalle St., Suite 700 

Chicago, IL 60604 

(312)762-9450 (Telephone) 

(312)762-9451 (Facsimile) 

Attorneys for Defendants 

CERTIFICATE OF SERVICE 

 I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all 

counsel of record via ECF on November 5, 2020. 

 

/s/ Roy Taub 

ROY TAUB, ESQ 

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