Telemarketers Dial Quickly - TCPA Class Action Dismissed For Now

On March 12, 2013, Judge William F. Kuntz II of the Eastern District of New York entered a memorandum and order in Bank v. Independence Energy Group LLC, which sua sponte dismissed claims arising under the Telephone Consumer Protection Act, and its accompanying rules and regulations, (collectively, the “TCPA”) for lack of subject matter jurisdiction. Citing Second Circuit precedents, the Court held that state courts have exclusive jurisdiction over private actions brought under the TCPA, and that of the New York Civil Practice and Rules (the “CPLR”) bars TCPA class actions in the federal courts. Specifically, the Court found that, by its terms, the TCPA creates a private right of action only “if otherwise permitted by the laws or rules of a State,” but that New York's CPLR prohibits class actions predicated on statutory damages. Bank v. Independence Energy Grp. LLC, No. 1:12-cv-1369 (WFK), slip op. at 3 (E.D.N.Y. Mar. 12, 2013). New York telemarketers should not rev up their auto-dialers just yet, however. The decision lacks any discussion of the Supreme Court's decision in Mims v. Arrow Financial Services, LLC, which held that federal and state courts have concurrent jurisdiction over private actions brought under the TCPA. (“We find no convincing reason to read into the TCPA's permissive grant of jurisdiction to state courts any barrier to the U.S. district courts' exercise of the general federal-question jurisdiction they have possessed since 1875.”). We expect that plaintiff will seek reconsideration of the decision and/or appeal to the Second Circuit, based on the Mims decision. Plaintiff's Claims and Defendants' Motion to Dismiss

Plaintiff Todd Bank is an attorney who has previously represented parties asserting TCPA claims, including in both of the cases that were upheld in a Second Circuit decision cited by the court.1 Representing himself in this action, Plaintiff alleged that the defendants placed one call, using an artificial or pre-recorded voice, to his residential telephone line, advertising the defendants' electricity-related services. According to his complaint, the defendants also placed calls to at least 10,000 other residential telephone lines within the TCPA statutory period, all of which conveyed an identical or nearly identical message to the one Bank received. No. 1:12-cv-1369 (WFK), slip op. at 2. Bank claimed that neither he nor any other member of the putative class had expressly invited or permitted the defendants...