The opinion of the court was delivered by: Hon. William J. Martini
WILLIAM J. MARTINI, U.S.D.J.:
In both of these putative class actions, Plaintiffs seek to represent classes of persons who allegedly received unsolicited faxes from Defendants in violation of the Telephone Consumer Protection Act*fn1 (the "TCPA"), 47 U.S.C. § 227. Presently before the Court are Defendants' motions to deny class certification in these two cases.*fn2 (See Afgo at ECF No. 45; Fitzgerald at ECF No. 45.) Plaintiffs oppose the motions. For the reasons that follow, Defendants' motions will be DENIED.
Plaintiffs allege the following: that Defendant Afgo Mechanical Services caused unsolicited commercial advertising to be faxed to Plaintiff Goodrich Management Corp.'s office in Englewood Cliffs, New Jersey on October 17, 2007 and on December 23, 2008; that Defendants Banco Santander, S.A., Santander Holdrings USA, Inc., Santander Consumer USA, Inc., Sovereign Bancorp, Inc. and Sovereign Bank caused unsolicited commercial advertising to be faxed to Plaintiff Nicholas Fitzgerald's office in Jersey City, New Jersey on September 28, 2010; and that these faxes were sent in violation of the TCPA. In both actions, Plaintiffs further assert that Defendants have caused over 10,000 such faxes to be sent to various individuals, and seek to represent putative classes of similarly situated TCPA plaintiffs.
A.The Telephone Consumer Protection Act
Generally speaking, the TCPA prohibits persons and entities from faxing "unsolicited advertisements," i.e., "material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." 47 U.S.C. § 227(a)(4), (C). The TCPA gives private parties standing to enforce this prohibition: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State [an action for an injunction or monetary damages]." 47 U.S.C § 227(b)(3).
For purposes of this Opinion, it is sufficient to note that the Supreme Court's recent decisions in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Company, 130 S. Ct. 1431 (2010), and Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012), have resulted in a flurry of recent case law discussing the extent to which the "if otherwise permitted by the laws or rules of court of a state" language of TCPA § 227(b)(3) requires a federal court to follow state law, including in the context of TCPA class actions brought in federal court. See generally, Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC,Op. 12, Oct. 10, 2012, at Civ. No. 11-cv-11, ECF No. 66. See also Landsman & Funk PC v. Skinder-Strauss Associates, No. 09-3105, 2012 WL 2052685, *1 (3d Cir. Apr. 17, 2012) (remanding, among other cases, Bais Yaakov, for resolution of the effect of the language in § 227(b)(3) in light of Mims and Shady Grove).
B.Defendants' Present Motions to Deny Class Certification
Rule 23 of the Federal Rules of Civil Procedure normally governs whether a suit in federal district court may proceed as a class action. Fed. Rs. Civ. P. 1, 23. Plaintiffs have not yet moved for class certification under that rule. Nonetheless, in both cases, Defendants have preemptively filed motions to deny class certification*fn3 as a matter of law, based on identical arguments. (See Afgo Def.'s Br. i, ECF No. 45-1; Fitzgerald
Def.'s Br. Table of Contents, ECF No. 45-1.) In support of their motions, Defendants' make the following legal assertions: first, that federal courts must enforce state law restrictions on bringing TCPA claims; second, that under New Jersey law, private TCPA class actions are prohibited; and third, that because New Jersey law applies to Plaintiffs class claims, denial of class certification is appropriate as a matter of law. (Id.) In opposition, Plaintiffs assert that Rule 23, rather than any state law, governs class certification determinations of private TCPA actions brought in federal court. (See Afgo Pl.'s Br., ECF No. 48; Fitzgerald Pl.'s Br., ECF No. 49.)
Judge Anne E. Thompson recently considered near identical legal arguments in the Bais Yaakov of Spring Valley v. Peterson's Nelet, LLC., Civ. No. 3:11-cv-11 (AET) (Oct. 10, 2012, ECF No. 66). For substantially the same reasons which are set forth in her thoughtful and well-reasoned opinion, Defendants' present motions will be denied.
C.Bais Yaakov of Spring Valley v. Peterson's Nelet, LLC Like Afgo and Fitzgerald, Bais Yaakov, "is a putative class action arising out of faxes that [defendant] sent to [plaintiff] and others similarly situated, allegedly in violation of [TCPA]." (Bais Yaakov Oct. 10, 2012 Op. 2.) And like the two matters presently before this Court, the defendant in Bais Yaakov moved "to dismiss the class action portion of the complaint based on the argument that the unique language of TCPA 227(b)(3) requires, in this instance, compliance with a New York state law [which prohibits a] class action in these circumstances."*fn4 (Id. at 2.) And just as the plaintiffs in Afgo and Fitzgerald are doing presently, the plaintiff in Bais Yaakov opposed defendant's motion by arguing that "the plain language of § 227(b)(3) does not require application of ...