Bias Yaakov of Spring Valley v. Peterson Nelnet, LLC, No. Civ. 11-00011, 2013 WL 663301 (D.N.J. Feb. 21, 2013)

Pending before the court was Defendant’s Motion to Reconsider denial of its Motion to Dismiss Plaintiff’s TCPA class action Complaint or in the alternative Plaintiff’s class action allegations on the grounds that applicable state law prohibited maintenance of such proceedings. In the alternative Defendant requested that the court certify its Order for interlocutory appeal.

Refusing to reconsider its Order, the court heeded the Third Circuit’s directive in Landsman & Funk, P.C. v. Skinder-Strauss Assocs., Civ. No. 09-3105, 2012 WL 2052685, at *1 (3d Cir. Apr. 17, 2012) to consider the question of Section 227(b)(3) of the TCPA and the application of state law in light of two potentially relevant cases: (1) Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 130 S.Ct. 1431 (2010); and (2) Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 744 (2012). Denying the Motion to Reconsider, the court noted that “while neither decision provided a definitive answer to the question at hand, the [Third Circuit]  found that the two cases nevertheless counseled against the application of state law in federal suits under the TCPA, and thus, that Defendant’s motion to dismiss should be denied,” citing similar conclusions reached in the district.

The court did, however, certify the issue for interlocutory appeal, concluding Defendant satisfied the requirement of demonstrating: (1) A controlling question of law; (2) Substantial grounds for difference of opinion; (3) Material advancement of the termination of litigation; and (4) That other considerations warranted certification “given the potential for hefty litigation expenses and an extensive use of judicial resources in the resolution of these claims.”

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.