Antitrust Law Daily Wrap Up, PRIVACY—D.N.J.: Federal class action rules apply to Telephone Consumer Protection Act claims in federal court, (Jul 30, 2013)

By Jody Coultas, J.D.

Gann Law Brooks, Inc.’s motion to dismiss an attorney’s Telephone Consumer Protection Act (TCPA) class action claim was denied based on application of the Federal Rule of Civil Procedure 23 guide for class actions, the federal district court in Newark has held (Fitzgerald v. Gann Law Books, Inc., July 29, 2013, McNulty, K.).

The attorney alleged that Gann Law, a legal treaties publisher, sent thousands of unsolicited fax advertisements for goods and/or services without proper opt-out notices in violation of the TCPA.

The only private cause of action explicitly provided by the TCPA is a state-court right of action, which is available only if otherwise permitted by the laws or rules of court of a state. New Jersey law prohibits TCPA class action claims in state court. In federal court, Federal Rule of Civil Procedure 23 determines whether a TCPA case may proceed as a class action.

Rule 23, not New Jersey law, governed the availability of class action treatment of the attorney’s claims under TCPA. Gann Law argued that New Jersey law barred TCPA class action claims in federal court. In Mims v. Arrow Financial Services, LLC, 132 S.Ct. 740 (Jan. 18, 2012), the Supreme Court held that federal courts have direct, federal-question jurisdiction over TCPA claims. Nothing in the TCPA pointed to Congress’ intent to overturn the principle that the Federal Rules of Civil Procedure applied to federal law issues in federal court. The TCPA states that a state court cause of action must comport with state law. Even where a party in federal court asserts a state law cause of action, Rule 23 may permit class-wide relief where state law would deny it.

The case is No. 1 1-cv-4287 (KM).

Attorneys: Aytan Yehoshua Bellin (Bellin & Associates LLC) for Nicholas Fitzgerald. Allyn Zissel Lite (Lite DePalma Greenberg, LLC) for Gann Law Books, Inc.

Companies: Gann Law Books, Inc.

Cases: ConsumerProtection Privacy NewJerseyNews