In Holster v. Gatco, Inc., — S.Ct. —-, 2010 WL 1525998 (2010), the United States Supreme Court granted certiorari as to whether a TCPA matter could proceed in federal court notwithstanding New York’s prohibition against TCPA class action. Judge Scalia concurred in the grant of certiorari, explaining:
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. —-, 130 S.Ct. 1431, —L.Ed.2d —- (2010). . . . ¶ Petitioner Charles Holster filed this suit in federal court seeking actual and statutory damages-on behalf of himself and a class of others similarly situated-for alleged violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227. The District Court dismissed the suit, holding that the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applies to federal suits under the Act, and that N.Y. Civ. Prac. Law Ann. § 901(b) (West 2006)-which bars class actions in suits seeking statutory damages-is “substantive” under Erie. 485 F.Supp.2d 179, 184-186 (E.D.N.Y.2007). Federal Rule of Civil Procedure 23 had no bearing, it added, because “§ 901(b) is a matter not covered by [Rule] 23.” Id., at 185, n. 3. . . . Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. —-, 130 S.Ct. 1431 (2010), held that, irrespective of Erie, § 901(b) does not apply to state-law claims in federal court because it is validly pre-empted by Rule 23. Id., at —- – —-, 130 S.Ct., at 1436-1442; id., at —- – —-, 130 S.Ct. 1431, at 1442-1444 (plurality opinion); id., at —- – —-, 130 S.Ct., at 1455-1460 (STEVENS, J., concurring in part and concurring in judgment). That holding assuredly affects-and in all likelihood eliminates- Bonime’s primary basis for applying § 901(b) in federal court. The dissent insists, however, that Bonime’s second ground remains unaffected. Post, at —- (opinion of GINSBURG, J.). . . . ¶ A more probable meaning of Bonime’s second ground is that when a State closes its doors to claims under the Act § 227(b)(3) requires federal courts in the State to do so as well; but when such claims are allowed, the federal forum may apply its own procedures in processing them. See 547 F.3d, at 502 (“This statutory language is unambiguous-a claim under the [Act] cannot be brought if not permitted by state law”). Nothing in Bonime suggests, for example, that a federal court could not consolidate two suits under the Act for its own convenience, see Fed. Rule Civ. Proc. 42(a), even if the State’s courts did not allow consolidation. Although that logic applies equally to Rule 23’s method of combining claims, Bonime may simply have assumed-as the appellee urged it to conclude, as a number of district courts had held, and as the Second Circuit itself held three weeks later -that Rule 23 does not address whether class actions are available for specific claims. If that is what Bonime had in mind, Shady Grove will likely affect the Second Circuit’s analysis. ¶ Shady Grove would also affect the outcome if the Bonime court believed that even if Rule 23 would otherwise allow a federal court to entertain a class action, § 227(b)(3) supersedes Rule 23 by precluding suits that cannot be brought in state courts, including class actions barred by § 901(b). Shady Grove reveals the error in this analysis: Section 901(b) does not prevent a plaintiff from bringing “an action to recover a penalty, or minimum measure of recovery created or imposed by statute”-as would be necessary to implicate § 227(b)(3)-but only from “maintain[ing]” such a suit “ as a class action” (emphasis added). Shady Grove, 559 U.S., at —-, 130 S.Ct., at 1443 (plurality opinion); see also id., at —- – —-, 130 S.Ct., at 1437-1440. For these reasons, I concur in the Court’s order.
Justice Ginsburg and Justice Breyer dissented.