Telephone Consumer Protection Act

Bank v. Sparks Energy Holdings, LLC, Civ. No. 4:11-cv-4082, 2012 WL 4097749 (S.D. Tex. Sept. 13, 2012) Plaintiff, a citizen of the State of New York, filed a purported class action lawsuit in Texas against Defendant. At issue was an allegedly unsolicited voice message Plaintiff received on his residential phone line stating: "Hello, this is [omission in the original] pertaining to your current electric bill with Con Edison, reference number 42648967. We are now able to offer you a lower rate on your electricity bill through the recent government deregulation. Press five to be transferred to our approval department. To lower your electricity bill and gas bill with Con Edison, press five. Press five now to be transferred. Press three if you are not interested in the discount." Plaintiff alleged that Defendant placed this recorded call to approximately 10,000 residential phone lines. Defendant filed a Motion to Dismiss, arguing that Texas choice of law rules required application of New York law, which prohibits TCPA class actions. While recognizing that it would apply Texas choice-of-law rules and New York substantive law if it were sitting in diversity, the court noted that such was not the case because it possessed federal question subject matter jurisdiction over Plaintiff's TCPA claim stating “'[w]hen a federal statute condemns an act as unlawful the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted.' Since this Court has federal question jurisdiction over Plaintiff's claim, it need not conduct a choice-of-law analysis and instead applies federal law to Plaintiff's federal cause of action. Because federal law permits plaintiffs to bring TCPA claims as class action, the Court denies Defendants' motion to dismiss." (internal citations omitted).