Antitrust Law Daily Wrap Up, PRIVACY—S.D.N.Y.: Interlocutory appeal denied on issue of TCPA preemption of New York state law, (Nov 1, 2013)

By Edward L. Puzzo, J.D.

An interlocutory appeal to address the issue of whether the Telephone Consumer Protection Act preempted the New York General Business Law was not warranted because a substantial difference of opinion on the issue did not exist, the federal district court in New York City has ruled (Sussman v. I.C. System, October 30, 2013, Ramos, E.).

Plaintiff David Sussman brought a claim against Defendant I.C. System, alleging that numerous calls to his residence using automated dialing devices violated Section 399-p of the New York General Business Law (GBL). I.C. System had moved to dismiss, alleging that the state law claim was preempted by the federal Telephone Consumer Protection Act (TCPA). The court ruled against I.C. System initially and upon reconsideration. I.C. System now requests that the court certify for interlocutory appeal the issue of whether the TCPA preempts the plaintiff’s state law claims.

District courts have the discretion to certify an issue for interlocutory appeal when the issue involves a controlling question of law as to which there is a substantial difference of opinion and where an immediate appeal may advance the ultimate termination of the litigation. This issue did not meet that test, the court held.

Substantial difference of opinion. I.C. System argued that the requisite substantial difference of opinion existed because the issue of whether the TCPA preempted state law was a case of first impression in the Second Circuit, and because the same issue is currently pending in the Seventh Circuit in the case of Patriotic Veterans, Inc. v. Indiana, 821 F. Supp. 2d 1074 (S.D. Ind. 2011).

As to the first point, the court stated, under case law in the circuit, the fact that an issue presents a question of first impression is insufficient to render the issue grounds for substantial difference of opinion. As to the pending Patriotic Veterans case, the court continued, the issue in that case is not identical, since it involves whether or not the TCPA preempts Indiana law, which is not the same issue as whether or not the TCPA preempts New York law. In addition, how the Seventh Circuit ultimately rules in that case is not controlling in the Second Circuit. Thus neither point raised by defendant supports a conclusion that a substantial difference of opinion on the preemption issue exists, the court ruled.

Immediate appeal advancing termination of litigation. An immediate appeal also would not materially advance the ultimate termination of this litigation, the court stated, because even if the prior rulings in this matter regarding the preemption issue were overturned, plaintiff also brought a Fair Debt Collection Practices claim based on the same set of facts. Thus, granting an interlocutory appeal on the preemption issue would not result in appreciable savings in time.

Accordingly, the court ruled, I .C. System’s request for certification of an interlocutory appeal failed to show that exceptional circumstances justified a departure from the basic policy of postponing appellate review until after the entry of a final judgment.

The case is Civil Action No. 12-CV-0181 (ER).

Attorneys: Aytan Yehoshua Bellin for David Sussman. Kenneth A. Elan for I.C. System, Inc.

Companies: I.C. System, Inc.

Cases: Privacy NewYorkNews