The Second Circuit recently held that Federal Rule of Civil Procedure 23 governs whether TCPA class actions can proceed in New York federal courts, and concluded that a prior Second Circuit ruling to the contrary no longer was good law. Bank v. Independence Energy Group LLC, No. 13-1746-cv (2d Cir. Dec. 3, 2013).
Previously, in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir. 2008), the Second Circuit had held that state procedural rules governed whether a TCPA action could proceed as a class action in federal court, instead of Rule 23. Because N.Y. C.P.L.R. § 901(b) bars class actions seeking statutory damages unless the statute at issue expressly authorizes recovery in a class action (which the TCPA does not), the Bonime court ruled that a TCPA plaintiff could not pursue a class action for statutory damages in New York federal courts. This effectively sounded the death knell for TCPA class actions in New York.