Telephone Consumer Protection Act

Bank v. Independence Energy Group, LLC, No. 12-cv-1369 (E.D.N.Y. May 1, 2013) Pending before the Court was Plaintiff's Motion to Reconsider its dismissal of a class action Complaint based on a conclusion that New York Civil Practice Law 901(b) bars TCPA class actions in federal court. Plaintiff relied on the United States Supreme Court's holdings in Mims v. Arrow Fin. Servs., LLC, and various district court cases supporting Plaintiff's argument. Denying the Motion, the court concluded that Mims does not abrogate the U.S. Court of Appeals' holding in Holster III v. Gatco, Inc, that TCPA cases are subject to state-law restrictions including New York Civil Practice Law 901(b). The court also noted that district court opinions interpreting Mims to require application of the Federal Rules of Civil Procedure, and not State Court Rules, were not binding, adding that "[t]he Second Circuit may depart from a prior decision when that earlier decision's 'rationale is overruled, implicitly or expressly, by the Supreme Court,'" "[h]owever, the Second Circuit has not yet so departed. Therefore, Holster III remains the binding law of this Circuit. And, in any event, district court cases even those within the Second Circuit, do not bind this court."