Plaintiffs still cannot dial up TCPA claims in New York.

On May 1, 2013, Judge William F. Kuntz, II of the Eastern District of New York denied a motion to reconsider his earlier decision dismissing claims arising under the Telephone Consumer Protection Act and its accompanying rules and regulations for lack of subject matter jurisdiction. See Bank v. Independence Energy Grp. LLC. The Bank Court had dismissed the TCPA claims in reliance on a Second Circuit precedent, which interpreted the TCPA to bar claims in New York federal court because New York State’s civil procedure rules do not permit statutory class actions. See Holster III v. Gatco, Inc.

In denying the motion to reconsider, Bank addressed an issue not covered in its prior decision, and held that the Second Circuit’s Holster III decision was still good law after the Supreme Court’s subsequent decision in Mims v. Arrow Financial Services, LLC. Mims had held that federal and state courts have concurrent jurisdiction over private actions brought under the TCPA. The Mims decision contains language that would appear to undermine Holster III, for example: “Congress did not deprive federal courts of federal-question jurisdiction over private TCPA suits.” Bank found that such language was dicta, noting that the issue in Mims was whether TCPA claims could be brought in state court, not whether they could be brought in federal court. The Bank Court also found that the statutory interpretations in Mims and Holster III did not conflict. For these and other reasons, Bank concluded that Holster III remains the law in the Second Circuit until further notice.

The Bank plaintiff has stated publicly that his next call is to the Second Circuit.