Can You Hear Me Yet? The Right of Irritated Consumers to Sue in Federal Court Under the Telephone Consumer Protection Act

Abstract

In Mims v. Arrow Financial Services, the Supreme Court will decide whether consumers have a right to sue in federal court for violations of the Telephone Consumer Protection Act, or whether consumer remedies are confined solely to state courts. Did Congress, in creating a private right of action for violations of the Telephone Consumer Protection Act, confer jurisdiction on the state courts and divest federal courts of federal question jurisdiction over such claims? Or, may plaintiffs bypass state courts and sue in federal court?

The appeal in Mims focuses on the statutory language of the TCPA that provides “A person or entity may, if otherwise permitted by the laws of rules of a State, bring an action in an appropriate court of that State.” The statutory language is unclear on its face concerning which courts (either state or federal) have appropriate jurisdiction of private rights of action brought under the TCPA. Thus, the nub of the issue for the Court to decide is whether this language requires private TCPA lawsuits to be brought in state court only, thereby divesting federal courts of jurisdiction to adjudicate private rights of action. Or, alternatively, the Court must determine whether the statutory language permits individuals to bypass state courts and pursue their relief for TCPA violations in federal court.

The debate in Mims centers on whether federal courts have federal question jurisdiction under 28 U.S.C. § 1331, enacted in 1875. This statute provides that the federal district courts “shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.” Because the litigation does not involve either the Constitution or a treaty, a federal court can have “arising under” jurisdiction in Mims only if the TCPA (a federal law) is interpreted to confer subject matter jurisdiction on the federal courts.

The TCPA, then, presents the court with a somewhat unique problem of interpretation because it is not clear on the face of the statutory language whether TCPA creates exclusive jurisdiction in state courts, or concurrent jurisdiction in state and federal courts. Moreover, it is unclear whether the statutory language in the TCPA provides valid “arising under” jurisdiction of 28 U.S.C. § 1331. Because the TCPA is silent concerning federal jurisdiction, the Mims appeal involves complicated problems of statutory construction and legislative intent centering on whether the TCPA “creates” a federal claim for adjudication in federal court.

Since its enactment in 1991, federal courts of appeals have divided over whether the TCPA provides federal question jurisdiction under 28 U.S.C. § 1331. Six Circuits ― the Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits ― have held that the forum provision in the TCPA does not confer federal question jurisdiction on federal courts and therefore private TCPA claims must be brought in state court. The Sixth and Seventh Circuits, in contrast, have concluded that the TCPA jurisdictional language does not divest federal courts of federal question jurisdiction under 28 U.S.C. § 1331. Further muddying the TCPA problem, a Third Circuit panel in 2011 divided three ways on the jurisdictional meaning of the TCPA language.

In addition to the Circuit split concerning whether federal courts have valid federal question jurisdiction to adjudicate TCPA claims, all federal courts have concluded that they have good diversity jurisdiction to hear TCPA violations. See 28 U.S.C. § 1332. Thus, in cases involving a plaintiff and defendant from different states and the amount in controversy exceeds $75,000, may be brought in federal court.

The legislative history to the TCPA has played an influential role in lower court interpretations of the jurisdictional provision. In particular, courts have relied heavily on the statement by the bill’s sponsor, Senator Ernest Hollings, who indicated that: “Nevertheless it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court . . . “

The Mims appeal is significant because it deals with the fundamental rights of private litigants to have access to federal courts. Mims, who is represented by counsel at the Public Citizen Litigation Group, is arguing for the broadest interpretation of the TCPA in order for aggrieved consumers to be able to pursue enforcement and relief in federal courts. To date, most federal courts in six judicial circuits have closed the federal court doors to TCPA claims brought by private citizens. The Court will have to resolve the conflict raised by the two circuits that have concluded that the TCPA does afford a private right of action under federal question jurisdiction. Arrow, on the other hand, desires to cabin TCPA cases in state court, and incidentally, to cabin the $500-per-violation remedy to small claims courts. Buried in a footnote in Arrow’s brief is the lurking concern of many corporate defendants who have been and might be subject to TCPA claims: that alleged TCPA violations can balloon into class action litigation, with potentially catastrophic damages. Many states have already taken different positions concerning whether TCPA actions may be pursued in the form of a class action. On the other hand, many states have concluded – based on the same legislative history – that the TCPA contemplates litigation in state small claims courts, and not in the form of class actions.

Because the TCPA statutory language is facially unclear about whether the statute confers exclusive state jurisdiction or concurrent federal-state jurisdiction, the Court is likely to resolve the issue based on an array of canons of statutory construction. One may expect a careful parsing of the jurisdictional language, including the meaning of how the subjunctive clause following the word “may” signifies ― or not ― exclusive state court jurisdiction. Moreover, it is fairly predictable that Justice Scalia will eschew arguments from legislative history in order to divine Congressional intent, especially based on the single statement of Senator Hollings.

The Court also may address the anomaly that TCPA cases currently can be brought in federal court under diversity jurisdiction. Because diversity cases must satisfy a $75,000 amount-in-controversy requirement, the federal courts may not to date have had to adjudicate a large number of TCPA cases in their diversity jurisdiction. It remains to be seen, then, whether if the Court opens the federal courts to TCPA claims based on federal question jurisdiction, federal courts will be flooded with voluminous complaints alleging violations of the TCPA.

Keywords: Mims v. Arrow Financial Services, Telephone Consumer Protection Act, class actions, federal jurisdiction, state court jurisdiction, exclusive jurisdiction, TCPA