As a result of recent U.S. Supreme Court and Second Circuit decisions, New York practitioners can expect increasing numbers of Telephone Consumer Protection Act (TCPA) class actions to be filed in New York, following the national trend. The article will address those recent decisions and describe issue-spotting for practitioners litigating TCPA cases.

Introduction

New York federal courts have long held that because New York CPLR §901(b) prohibits class actions for statutory damages, claims brought under the TCPA, 47 U.S.C. §227, could not be brought in New York federal courts as class actions. Because the TCPA included a statement that private parties can enforce it only “if otherwise permitted by the laws or rules of court of a State,” (47 U.S.C. §227(b)(3)), the Second Circuit had held that CPLR class action rules applied rather than FRCP 23. Thus, until recently, CPLR §901′s prohibition on class treatment of statutory damages claims applied to TCPA claims brought in New York federal courts.1