• May 28, 2010

Litigation can sometimes make for some interesting reversals of positions as in the case of Percic v. European Autowerks, dba Autopia, in which plaintiffs brought their putative TCPA class action (federal Telephone Consumer Protection Act) in Minnesota state court, defendant removed it to federal court, then defendant changed its mind and sought to have the case sent back to state court and plaintiffs (you guessed it) changed their minds and wanted to stay in federal court.

Plaintiffs’ opposition to remand is here and the report and recommendation (“R&R”) of U.S. Mag. Judge Susan Richard Nelson is here.  (The R&R adopted by U.S. District Court Chief Judge Michael Davis this week) .   The discussion of the array of federal decisions about TCPA subject matter jurisdiction is worth noting.  Plaintiffs were fighting an uphill battle from the start due to an “on point” unpublished 2000 opinion (the “Barry” case) of Judge Davis finding no federal jurisdiction, which plaintiffs apparently had been unaware of.  (A large but not unanimous number of federal decisions also found exclusive state jurisdiction to enforce the federal statute.)  (Query: are there any constitutional issues with the U.S. Congress passing legislation providing for a private right of action that must be heard in state court?  And what about federal jurisdiction through the Class Action Fairness Act?)

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