Advertising Law Blog

In February, we blogged about how the Sixth Circuit Court of Appeals opened the door for Telephone Consumer Protection Act (TCPA) class actions in Michigan by ruling that state prohibitions on class actions had no effect on federal lawsuits. Click here for February blog.

In Giovaniello v. ALM Media, LLC, decided on August 8, 2013, the Second Circuit Court of Appeals issued a similar ruling, which will green light federal-court TCPA class actions in New York, Connecticut and Vermont. The Second Circuit ruled that the federal four-year statute of limitations applied to a federally filed TCPA class action, not the two-year statute of limitations contained in Connecticut law. The proper time limit to apply was at issue because the TCPA allows a private right of action "if otherwise permitted by the laws or rules of court of a State." If Connecticut's two-year rule applied, the plaintiff would be out, while if the federal four-year limit controlled, the plaintiff had a fighting chance to continue the lawsuit. Courts have wrestled with the meaning of "if otherwise permitted" for a few years, but in light of this week's Second Circuit decision, there is now a consensus that the unusual phrase is relevant only in state court. The Second Circuit followed the Sixth and Third Circuits' rulings on this issues, summarizing that,"TCPA claims in federal court are not subject to the vagaries of state law."

The impact of this ruling will soon be particularly evident in New York federal courts because New York has a state statute barring TCPA class actions. That statute now has no effect on federal TCPA class actions, which are now to be considered under the federal class-action rule (i.e., Rule 23 of the Federal Rules of Civil Procedure) instead of simply being barred by New York state law.

As for the specific case at issue in Giovanello, the Second Circuit dismissed the lawsuit, finding that the plaintiff's filing was about a month too late even under the longer federal statute of limitations.