Giovanniello v. ALM Media LLC
The four-year federal statute of limitations in 28 United States Code §1658(a) applies to Telephone Consumer Protection Act complaints. On Jan. 28, 2004, the plaintiff, Earle Giovanniello, allegedly received an unsolicited facsimile advertisement from ALM Media (which is the Connecticut Law Tribune's parent company). In April and September 2004, Giovanniello filed putative class actions, which he later withdrew, in which he claimed that ALM Media LLC violated the Telephone Consumer Protection Act, 47 U.S.C. §227(b)(1)(c). Giovanniello filed a third action in the Southern District of New York, which concluded it lacked subject-matter jurisdiction. In September 2009, Giovanniello filed a fourth putative class action in Connecticut District Court, which held that even if a federal four-year statute of limitations applied, and the statute of limitations was tolled during the time that Giovanniello filed state-court suits, the federal suit was not filed timely. Giovanniello appealed to the 2nd Circuit, which held that the two-year state-court statute of limitations applied, and the suit was not filed timely. Giovanniello filed a petition for certiorari to the U.S. Supreme Court, which vacated and remanded pursuant to Mims v. Arrow Financial Services LLC, a 2012 decision of the U.S. Supreme Court. The Mims court identified a significant "federal interest in regulating telemarketing to protec[t] the privacy of individuals while permit[ting] legitimate [commercial] practices." Mims suggests that to vindicate significant federal interests and to ensure uniformity, TCPA claims in federal court not be subject to the vagaries of state law. On remand, the 2nd Circuit held that the appropriate statute of limitations was the federal statute of limitations, which was four years. The tolling rule in American Pipe & Construction Co. v. Utah, a 1974 U.S. Supreme Court decision, did not extend beyond the denial of class status, which was denied when the Southern District of New York decided that a class action was not available under New York law. Giovanniello's Sept. 8, 2009, District Court complaint was filed 30 days late. The 2nd Circuit affirmed the judgment of the District Court, Arterton, J. Todd Bank represented the plaintiff. Chad Bowman and Elizabeth Koch represented ALM Media.