SW Legal studies in Business

State Law Prohibits Class Action Suit for Violation of Federal Junk Fax Law

Federal appeals court held that a New York resident must sue a company accused of violating the federal Telephone Consumer Protection Act in state court, not federal court, and could not bring a class action suit, as it was not permitted by New York law.


Consumer Protection

Key Words

Class Action; Telephone Consumer Protection Act; Jurisdiction

C A S E   S U M M A R Y

Bonime, a New York citizen, received a fax from Avaya, a non-New York company) that advertised its goods or services. As the fax was sent without Bonime’s permission it is a possible violation of the Telephone Consumer Protection Act (TCPA) which makes it unlawful to send unsolicited ads by fax. The TCPA allows a person who receives such a fax to bring a private action for the violation and recover damages of $500 or actual damages, whichever is greater. Bonime brought a class action on behalf of all persons who received such faxes, which, he contends, is more than 10,000 such fax recipients, for damages over $5 million. The district court dismissed the complaint for lack of subject matter jurisdiction, holding that Bonime could not bring a class action suit under the TCPA in New York state and could not file in federal court. He appealed.


Affirmed. New York law does not permit private actions for violations of the TCPA to be brought as class actions. Plaintiff cannot invoke federal diversity jurisdiction to bring such suit in federal court. The damages are $500, not $5 million, since he is the only plaintiff. Hence, Bonime must file in state court and cannot bring a class action suit.


Bonime v. Avaya, Inc., 547 F.3d 497 (2nd Cir., 2008)

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