Giovanniello v. ALM Media, LLC, No. 10-3854 (2d Cir. 2011)
Annotate this CasePlaintiff appealed from a judgment dismissing as time-barred a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, arising from the transmission of an unsolicited advertisement to plaintiff by means of a telephone facsimile machine. At issue was whether a state statute of limitations was among the "laws" referenced in the TCPA's "otherwise permitted" provision, or whether the statute of limitations for TCPA actions was the federal catch-all four-year limitations period provided in 28 U.S.C. 1658(a). The court held that, in the circumstances of this case, where the relevant state law, Conn. Gen. Stat. 52-570c, specifically recognized a cause of action for statutory damages for the transmission of unsolicited commercial facsimile communications, but permitted such an action to be filed only within two years of the complained-of transmission, a TCPA action could be maintained only as permitted by that state statute of limitations. Accordingly, in this instance, plaintiff's complaint was untimely even if tolling were to be calculated.
The court issued a subsequent related opinion or order on August 8, 2013.
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