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S2 | MONDAY, JUNE 2, 2014 | Complex Litigation
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§227, could not be brought in New York feder-

Telephone
al courts as class actions. Because the TCPA
included a statement that private parties
can enforce it only “if otherwise permitted
by the laws or rules of court of a State,” (47
U.S.C. §227(b)(3)), the Second Circuit had
Consumer
held that CPLR class action rules applied
rather than FRCP 23. Thus, until recently,
CPLR §901’s prohibition on class treatment
of statutory damages claims applied to TCPA

Protection Act
claims brought in New York federal courts.1
After the U.S. Supreme Court’s decision in
Mims v. Arrow Financial Services, 132 S. Ct.
140 (2012), however, a pair of Second Circuit
decisions in the second half of 2013 reversed
Class Actions course. As a result, from mid-2013 to present,
at least 14 TCPA class actions have already
been iled in New York federal courts.

After ‘Mims’
The TCPA is a federal statute that was
passed in the early 1990s aimed at prohibiting
telemarketing calls, faxes, and text messages
without prior consent. The TCPA speciically
provides for a private right of action that,
if successful, can result in awards between
$500 and $1,500 per violation. Obviously,
because statutory damages can become very
large when aggregated, large scale electronic

marketing campaigns, engaged in by both
local and national marketers, have made
BY DAVID LEICHTMAN TCPA cases a popular class action vehicle
AND SHANE ST. HILL
for the plaintiff’s bar. For example, in 2013
TCPA cases in California and Washington
As a result of recent U.S. state against Bank of America and Papa
Supreme Court and Sec- John’s, respectively, settled for $32 and $16.5
ond Circuit decisions, million. But there was potentially billions in
New York practitioners can exposure in these cases.

expect increasing numbers of Until now, such class actions could not be
Telephone Consumer Protection
brought in New York. What changed and why?
OCK
Act (TCPA) class actions to be ST
iled in New York, following the ‘Mims’ and The Second Circuit Response
BIG
national trend. The article will
address those recent decisions In 2012, the Supreme Court got involved
and describe issue-spotting for in a growing circuit split over whether fed-
practitioners litigating TCPA cases.
eral subject matter jurisdiction existed for

TCPA claims. While the Second Circuit had
Introduction
held that there was no federal subject mat-
ter jurisdiction, other circuit and district
New York federal courts have long held courts had found such jurisdiction existed.2
that because New York CPLR §901(b) pro- In Mims, the Supreme Court ruled that the
hibits class actions for statutory damages, “permissive grant of jurisdiction to state
claims brought under the TCPA, 47 U.S.C.
courts” in the TCPA did not preclude “fed-
eral courts’ exercise of the general federal
question jurisdiction they have possessed

DAVID LEICHTMAN is a partner at Robins, Kaplan, since 1875.” 132 S. Ct. at 745. The court also
Miller & Ciresi in New York, where he practices in the found that federal law provides the rules of
intellectual property litigation and business litigation decision in TCPA cases.
groups. SHANE ST. HILL is an associate at the irm.
Before Mims, the Second Circuit’s view was
that state law provided the rules of decision

Inside
Complex Litigation

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S
Take the Air
In the Age
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Out of ‘Koehler’?
Of E-Discovery
Committee Members
Kris Fischer, Editor-In-Chief

BY MATTHEW INGBER, BY LAUREN E. AGUIAR BY EUGENE R. LICKER
Angela Turturro, Sections Editor
CHRIS HOUPT
AND JULIE E. COHEN
AND AMANDA J. SHERMAN
Michelle Grutman, Design
AND DAVID LIZMI
S

S

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