Supreme Court Hears Oral Arguments On TCPA Case

The Chief Justice of the United States Supreme Court, John Roberts remarked, "this is the strangest statute I have ever seen." He was talking about the Telephone Consumer Protection Act, or TCPA. The Supreme Court held oral arguments in the case of Mims v. Arrow Financial Services on November 28, 2011 in order to decide whether plaintiffs can choose between filing lawsuits in state or federal court, or will be limited to state courts when the amount in controversy is less than $75,000. (If the amount being sought is more than $75,000, and the defendant is from a different state then the plaintiff, the rules of diversity allow federal jurisdiction. Diversity jurisdiction is not at issue in the Mims case).

The reason the Chief Justice was confused is that when Congress passed the TCPA, it included enigmatic language governing a plaintiff's choice of court systems that was either never thought through, or was left intentionally vague for courts to decide later.

The default rule is that if a plaintiff is suing under a federal statute, he or she has the right to have his case heard in federal court. The wording of the TCPA allows cases to be brought in state court but is silent about federal court. It seems as though Congress intended for these cases to be brought only in state court, but it stopped short of saying so when it passed the legislation in 1991. So will the default rule apply, or will Congress' seemingly unexpressed intent rule the day?

Trying to guess which the way the Supreme Court will rule is often as unpredictable as telling fortunes by reading tea leaves, but every indication is that the decision will be a close one: in 1998, current Supreme Court Justice Samuel Alito, then sitting on the Third Circuit Court of Appeals in Philadelphia, voted to allow plaintiffs to file in federal court, but was outvoted 2-1 on the issue. On the other hand, the questions asked during oral arguments by Justices Andrew Kennedy and Stephen Breyer indicated they are troubled by the fact that defendants would be able to take small claims cases and remove them to federal courts, thus coercing the plaintiffs to hire lawyers. We will continue to monitor this case and will post an update when the Supreme Court issues its ruling.

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