2nd Circuit Boots|Fax Spam Claim

     (CN) – The 2nd Circuit affirmed dismissal of a New York fax spam claim due to a state law limiting recovery from class actions.




     Harold Bonime claimed to represent a class of about 10,000 who had received unsolicited fax advertisements from telecommunications company Avaya or its resellers.
     Since the U.S. Telephone Consumer Protection Act allows damages of $500 per violation, Bonime’s suit fell into a $5 million range used to invoke federal jurisdiction under the Class Action Fairness Act.
     The U.S. District Court of New York dismissed, due to a state statute disallowing class actions for recovery of penalties.
     The 2nd Circuit said the Telephone Consumer Protection Act is intended to back up state law, and described Bonime’s appeal as raising a “novel procedural question” on jurisdiction.
     Writing for the appellate court, Judge Barrington Parker said Bonime’s tried to skirt state law by applying federal jurisdictional requirements.
     While calling Bonime’s tactic “inventive,” it failed, as the federal law was intended to be treated as a state law. The 2nd Circuit upheld dismissal.
     Judge Calabresi, concurring, cited a possible jurisdictional gap and a 7th Circuit opinion allowing federal jurisdiction over such suits.

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