                     No. 2-08-1148 Filed: 2-24-10 Modified4-5-10 Corrected4-27-10
______________________________________________________________________________

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

ITALIA FOODS, INC., Indiv. and as the  ) Appeal from the Circuit Court of Lake
Representative of a Class of Similarly ) County.
Situated Persons,                      )
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03--CH--924
                                       )
SUN TOURS, INC., d/b/a Hobbit Travel,  )
and PAUL GROSSO,                       ) Honorable
                                       ) Mitchell L. Hoffman,
      Defendants-Appellants.           ) Judge, Presiding.
______________________________________________________________________________

                               Modified Upon Denial of Rehearing

       JUSTICE JORGENSEN delivered the opinion of the court:

                                       I. INTRODUCTION

       In this interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), we are

asked to answer three certified questions:

                 "(1) Does the language and purpose of the federal Telephone Consumer Protection

       Act [(TCPA) (47 U.S.C. §227 (2000))1] require that the Illinois General Assembly enact

       enabling legislation before private TCPA claims can be brought and enforced in Illinois state

       courts?

       1
           In 2005, the TCPA was amended and renamed the Junk Fax Prevention Act of 2005. 47

U.S.C. §227 (Supp. 2005).
No. 2--08--1148


               (2) Are the TCPA claims alleged in this case 'statutory penalties' under Illinois law?

       And if so:

                       (a) Are those claims assignable under Illinois law?

                       (b) Does Illinois' two[-]year statutory penalty limitations period [(735 ILCS

               5/13--202 (West 2002))] apply to such claims, as opposed to [the federal four-year

               limitations period for civil actions (28 U.S.C. §1658 (2000))]?

               (3) If the claim is not assignable, then should absent class members' putative claims

       against defendants be treated as tolled when no class representative with proper standing

       represented the putative class for a 27-month period?"

       We answer the first certified question in the negative. Specifically, the Illinois General

Assembly need not enact enabling legislation before private TCPA claims can be brought and

enforced in Illinois state courts. As to the second certified question, we modify the first two parts

of the question and conclude that TCPA claims are remedial and assignable and, alternatively, that

(whether or not they are remedial) they are assignable because they do not constitute personal-injury

actions. Further, we conclude that we need not answer subsection (b) of the second certified

question (concerning the appropriate statute of limitations). Finally, because we conclude that the

TCPA claims are assignable, we do not address the third certified question.

                                       II. BACKGROUND

       On June 13, 2003, in a class action complaint, Eclipse Manufacturing Company, an Illinois

corporation, sued Sun Tours, d/b/a Hobbit Travel, a travel agency, alleging that, in July and August

2002, Hobbit Travel sent Eclipse four unsolicited one-page faxes advertising discounted travel

offers. Eclipse further alleged that Hobbit Travel's actions violated the TCPA and the Consumer



                                                -2-
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Fraud and Deceptive Business Practices Act (Fraud Act) (815 ILCS 505/1 et seq. (West 2002)) and

constituted common-law conversion. As to the TCPA claim, Eclipse sought statutory and punitive

damages, an injunction, and attorney fees. Eclipse subsequently amended its complaint, adding

Hobbit Travel's president, Paul Grosso, as a defendant.

       On April 5, 2007, Hobbit Travel moved to dismiss Eclipse's amended complaint, arguing,

inter alia, that the TCPA claim was not cognizable in Illinois because the operative language of the

TCPA--namely, that state court TCPA actions must be "otherwise permitted by the laws or rules of

court of a State" (47 U.S.C. §227(b)(3) (2000))--required the Illinois General Assembly to

affirmatively opt in to the TCPA's enforcement scheme, which it had not done.2 On July 26, 2007,

the trial court denied Hobbit Travel's motion as to the TCPA claim, finding that TCPA claims may

be brought in Illinois courts.

       On August 30, 2007, Robert Hinman, Eclipse's president and owner, was substituted in for

Eclipse as plaintiff by filing a second amended complaint. Hinman alleged that the same four faxes

were transmitted to him and not to Eclipse. He further alleged that, on November 30, 2005, several

years after receiving Hobbit Travel's faxes, he sold Eclipse's stock to a third party, but expressly

retained the right to pursue this TCPA action by virtue of an assignment of that claim (from Eclipse

to Hinman).

       On October 1, 2007, defendants moved to dismiss the second amended complaint. They

challenged Eclipse's assignment of its TCPA claim to Hinman, arguing that the claim was not

assignable because it constituted a statutory penalty. Defendants argued that the TCPA's fixed award



       2
           Illinois's junk fax statute, effective as of January 1, 1990, designates violations thereof as

petty offenses that are subject to a $500 maximum fine. 720 ILCS 5/26--3 (West 2008).

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No. 2--08--1148


of $500 per violation (47 U.S.C. §227(b)(3)(B) (2000)) made the claim a statutory penalty under the

test this court set forth in McDonald's Corp. v. Levine, 108 Ill. App. 3d 732, 738 (1982). Defendants

thus asserted that Eclipse's assignment of the TCPA claim to Hinman was invalid because the

majority rule provides that claims under penal statutes are not assignable. They also argued that

Hinman's claims were time-barred because they were brought over five years after each of the four

faxes was allegedly received (in July and August 2002).

       On January 31, 2008, Italia Foods, Inc., sought leave to substitute in for Hinman and file a

third amended complaint, asserting that it had received over 25 faxes from defendants. Over Hobbit

Travel's objection, the trial court granted Italia Foods' motion and subsequently allowed Hobbit

Travel to file a motion to dismiss the third amended complaint, incorporating its arguments

concerning Hinman's invalid assignment from Eclipse.

       In the third amended complaint, dated February 28, 2008, Italia Foods alleged that Hobbit

Travel sent it 28 unsolicited one-page faxes from June 24, 2005, through April 17, 2007, advertising

discount travel deals. Italia Foods further alleged that Hobbit Travel's actions violated the TCPA

and Fraud Act and constituted common-law conversion. As to the TCPA claim, Italia Foods sought

$500 in statutory damages for each violation, an injunction, and costs.

       Hobbit Travel moved to dismiss (735 ILCS 5/2--615, 2--619 (West 2002)) portions of Italia

Foods' complaint, arguing that: (1) TCPA claims are not cognizable in Illinois courts for the reasons

set forth in Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707 (Tex. 2006)

(hereinafter Chair King); (2) the limitations period for TCPA claims should be measured from the

filing of Italia Foods' third amended complaint on February 28, 2008, and not from Eclipse's original

complaint (filed June 13, 2003); (3) the applicable limitations period for TCPA claims is two years



                                                -4-
No. 2--08--1148


(735 ILCS 5/13--202 (West 2002)), as opposed to four years (28 U.S.C. §1658 (2000)) as argued by

Italia Foods; and (4) the limitations period was not tolled during the 27-month period from

November 30, 2005 (when Eclipse lost standing to bring its claims), to February 28, 2008 (when

Italia Foods filed its complaint), as neither Eclipse nor Hinman had standing during this time.

       In response, Italia Foods invoked the class tolling rule announced in American Pipe &

Construction Co. v. State, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974), arguing that it

preserved the otherwise stale claims of putative class members back to June 13, 1999, four years

before Eclipse's original complaint. Hobbit Travel replied that the putative class's claims could not

be tolled under American Pipe due to the time that lapsed before Italia Foods replaced Hinman as

the named plaintiff. According to Hobbit Travel, Eclipse could not have validly assigned its TCPA

claim to Hinman under Illinois law, because such a claim constituted a statutory penalty; therefore,

a 27-month gap (November 30, 2005, when Eclipse purported to assign its claims to Hinman, to

February 28, 2008, when Italia Foods replaced Hinman as the named plaintiff) existed during which

no named plaintiff with proper standing represented the putative class.

       On August 26, 2008, the trial court denied Hobbit Travel's motion to dismiss Italia Foods'

TCPA claim. The court rejected Hobbit Travel's Chair King argument that TCPA claims are not

cognizable in Illinois state courts. It further found that Eclipse's TCPA claim was assignable to

Hinman under Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill.

2d 214 (1998), which had allowed a company to assign a punitive damages claim to its shareholders.

The court further found that the TCPA is not a penal statute and that TCPA claims are subject to the

federal four-year statute of limitations (28 U.S.C. §1658 (2000)). Finally, the court found that the

American Pipe tolling doctrine applied and that the class's claims related back to June 13, 1999.



                                                -5-
No. 2--08--1148


       On November 20, 2008, the court granted Hobbit Travel's motion to make Rule 308 findings,

and, on December 2, 2008, it entered an order certifying three questions. Hobbit Travel petitioned

for leave to appeal to this court, and, on February 25, 2009, we allowed the appeal as to the three

certified questions.3

                                              III. ANALYSIS

                          A. Jurisdiction of Illinois Courts Over TCPA Claims

       The first certified question asks: "Does the language and purpose of the federal [TCPA]

require that the Illinois General Assembly enact enabling legislation before private TCPA claims can

be brought and enforced in Illinois state courts?" Defendants urge us to answer "yes" to this question

and order that Italia Foods' TCPA claim be dismissed with prejudice because it is undisputed that

the General Assembly never passed legislation authorizing TCPA suits in this state. Before

addressing the parties' specific arguments, we first provide an overview of some constitutional

considerations and the statute.

                                           1. Supremacy Clause

       The supremacy clause provides: "This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof *** shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding." U.S. Const., art. VI, cl. 2.

                  "Federal law is enforceable in state courts not because Congress has determined that

       federal courts would otherwise be burdened or that state courts might provide a more



       3
           Following several requests by the parties for extensions of time to file their briefs on appeal,

this case was ready for this court's review in September 2009.

                                                    -6-
No. 2--08--1148


        convenient forum--although both might well be true--but because the Constitution and laws

        passed pursuant to it are as much laws in the States as laws passed by the state legislature.

        The Supremacy Clause makes those laws 'the supreme Law of the Land,' and charges state

        courts with a coordinate responsibility to enforce that law according to their regular modes

        of procedure." Howlett v. Rose, 496 U.S. 356, 367, 110 L. Ed. 2d 332, 347, 110 S. Ct. 2430,

        2438 (1990).

There is a presumption, therefore, that federal causes of action are enforceable in state courts. See

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 69 L. Ed. 2d 784, 791, 101 S. Ct. 2870,

2875 (1981) ("In considering the propriety of state-court jurisdiction over any particular federal

claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction"); see

also

R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 382 Md. 689, 715, 857 A.2d 1, 16 (2004)

("Typically, when Congress creates a civil cause of action, it authorizes federal trial courts to

entertain the cause of action. It sometimes expressly grants concurrent jurisdiction to state trial

courts. When Congress is silent concerning state court jurisdiction over federal causes of action,

there is a 'deeply rooted presumption in favor of concurrent state court jurisdiction,' Tafflin v. Levitt,

493 U.S. 455, 459, 110 S. Ct. 792, 795, 107 L. Ed. 2d 887, 894 (1990)").

        Only in limited cases may a state discriminate against federal causes of action, because,

where it does so, the state's law generally violates the supremacy clause. R.A. Ponte Architects, 382

Md. at 715, 857 A.2d at 16. "Congress, however, may confine jurisdiction to the federal courts

either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by

an explicit statutory directive, by unmistakable implication from legislative history, or by a clear



                                                   -7-
No. 2--08--1148


incompatibility between state-court jurisdiction and federal interests." Gulf Offshore, 453 U.S. at

478, 69 L. Ed. 2d at 791, 101 S. Ct. at 2875; cf. Haywood v. Drown, 596 U.S. ___, ___, 173 L. Ed.

2d 920, 928, 129 S. Ct. 2108, 2114 (2009) (presumption of concurrent jurisdiction is defeated in only

two narrow circumstances: when Congress expressly ousts state courts of jurisdiction and when a

state court refuses jurisdiction on the basis of a neutral state rule of court administration). Generally,

a state may apply to the federal cause of action a neutral rule of court administration, unless that rule

is preempted by federal law. Howlett, 496 U.S. at 372, 110 L. Ed. 2d at 351, 110 S. Ct. at 2440-41;

see also Haywood, 586 U.S. at ___, 173 L. Ed. 2d at 928, 129 S. Ct. at 2114, quoting Tafflin, 493

U.S. at 458, 107 L. Ed. 2d at 894, 110 S. Ct. at 795 ("[O]nly a neutral jurisdictional rule will be

deemed a 'valid excuse' for departing from the default assumption that 'state courts have inherent

authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the

United States' ").

                                                2. TCPA

         The TCPA was enacted in 1991 (Pub. L. No. 102--243, 105 Stat. 2394 (1991)) and it

amended Title II of the Communications Act of 1934 (47 U.S.C. §201 et seq. (1994)), principally

by adding a new section (47 U.S.C. §227 (1994)). The statute places restrictions on unsolicited,

automated telephone calls to the home and restricts certain uses of facsimile machines and automatic

dialers. 47 U.S.C. §227(b)(1) (2000). The TCPA "seeks to address the increased use of automated

telephone equipment to make telephone calls in bulk and fax unsolicited advertisements that cross

state lines and fall outside the regulatory jurisdiction of individual states." Portuguese American

Leadership Council of the United States, Inc. v. Investors' Alert, Inc., 956 A.2d 671, 674 (D.C.

2008).



                                                   -8-
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        The statute contains some "unusual" features. Chair King, Inc. v. Houston Cellular Corp.,

131 F.3d 507, 512 (5th Cir. 1997) (hereinafter Houston Cellular). The TCPA "creates a federal

private right of action, but *** confers exclusive jurisdiction on state courts to entertain it." Chair

King, 184 S.W.3d at 710. The statute also contains a federal enforcement component that authorizes

state attorneys general to bring civil actions in federal court on behalf of their state residents to obtain

injunctive relief against unauthorized telephone calls and facsimiles and to recover monetary

damages. 47 U.S.C. §227(f)(1) (2000). The TCPA provides that the federal district courts have

"exclusive jurisdiction" over actions brought by state attorneys general. 47 U.S.C. §227(f)(2) (2000).

The statute also authorizes the Federal Communications Commission (FCC) to intervene as of right

in any state attorney general's action. 47 U.S.C. §227(f)(3) (2000).4



        4
            The majority of federal courts that have considered the issue have held that, although federal

courts have exclusive jurisdiction over TCPA enforcement actions brought by state attorneys general

and the FCC, federal courts have no jurisdiction to hear private rights of action under the TCPA.

Specifically, six courts of appeal have held that federal courts lack federal question subject matter

jurisdiction to hear TCPA cases. See Murphey v. Lanier, 204 F.3d 911, 913-15 (9th Cir. 2000);

Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432, 438

(2d Cir. 1998); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 520 (3d Cir. 1998); Nicholson v.

Hooters of Augusta, Inc., 136 F.3d 1287, 1289, modified, 140 F.3d 898 (11th Cir. 1998);

International Science & Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146,

1152 (4th Cir. 1997); Houston Cellular, 131 F.3d at 513. However, one court of appeal has held that

federal question jurisdiction is properly invoked in private TCPA claims. See Brill v. Countrywide

Home Loans, Inc., 427 F.3d 446, 450-51 (7th Cir. 2005). Further, three courts of appeal have held

                                                     -9-
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        As relevant here, the TCPA prohibits the "use [of] any telephone facsimile machine,

computer, or other device to send an unsolicited advertisement to a telephone facsimile machine."

47 U.S.C. §227(b)(1)(C) (2000). The statute's first private right of action,5 which targets the misuse

of fax machines, prerecorded message technology, or automatic dialing machines, is contained in

section 227(b)(3):

                  "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--

                          (A) an action based on a violation of this subsection or the regulations

                  prescribed under this subsection to enjoin such violation,

                          (B) an action to recover for actual monetary loss from such a violation, or to

                  receive $500 in damages for each such violation, whichever is greater, or

                          (C) both such actions.

        If the court finds that the defendant willfully or knowingly violated this subsection or the

        regulations prescribed under this subsection, the court may, in its discretion, increase the

        amount of the award to an amount equal to not more than 3 times the amount available under

        subparagraph (B) of this paragraph." (Emphasis added.) 47 U.S.C. §227(b)(3) (2000).



that federal courts may hear TCPA claims when subject matter jurisdiction is based on diversity.

See US Fax Law Center, Inc. v. iHire, Inc., 476 F.3d 1112, 1118 (10th Cir. 2007); Gottlieb v.

Carnival Corp., 436 F.3d 335, 341 (2d Cir. 2006); Brill, 427 F.3d at 450-51.
        5
            The second private cause of action in the TCPA targets violations of the FCC's do-not-call

rules and, as in the first cause of action, applies "if otherwise permitted by the laws or rules of court

of a State." 47 U.S.C. §227(c)(5) (2000).

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          The first certified question concerns the congressional intent underlying the foregoing

emphasized language and its relationship with state law. The fundamental rule of statutory

construction is to ascertain and give effect to the intent of the legislature. King v. First Capital

Financial Services Corp., 215 Ill. 2d 1, 26 (2005). The best indicator of the legislature's intent is the

language in the statute, which must be accorded its plain and ordinary meaning. King, 215 Ill. 2d

at 26. In addition to the statutory language, courts may consider the purpose behind the law and the

evils sought to be remedied, as well as the consequences that would result from construing the law

one way or the other. Williams v. Staples, 208 Ill. 2d 480, 487 (2004). Where a statute is capable

of more than one reasonable interpretation, the statute will be deemed ambiguous. General Motors

Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). In such cases, courts

may consider extrinsic aids to construction, such as legislative history. County of Du Page v. Illinois

Labor Relations Board, 231 Ill. 2d 593, 604 (2008). Questions of statutory interpretation are subject

to de novo review. Harrisonville Telephone Co. v. Illinois Commerce Comm'n, 212 Ill. 2d 237, 247

(2004).

          We conclude that the phrase "if otherwise permitted by the laws or rules of court of a State"

is ambiguous, as it is unclear what, if any, state action is required before private actions may

commence in state courts. Indeed, three general interpretations of the TCPA's "if otherwise

permitted" language have emerged: (1) the "opt-out" approach; (2) the "acknowledgment" approach;

and (3) the "opt-in" approach. Accounting Outsourcing, LLC v. Verizon Wireless Personal

Communications, L.P., 329 F. Supp. 2d 789, 795 (M.D. La. 2004). We conclude below that the

"acknowledgment" approach is the correct framework to analyze the TCPA's private right of action.




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                                         a. "Opt-out" Approach

       The "opt-out" approach interprets the TCPA's "if otherwise permitted" language to authorize

private TCPA suits in state courts without affirmative state action. MLC Mortgage Corp. v. Sun

America Mortgage Co., 2009 OK 37, ¶13, 212 P. 3d 1199, 1205. However, the theory allows states

to legislatively decline to address such suits. Chair King, 184 S.W.3d at 714. The courts adopting

the "opt-out" approach generally base their reasoning on language in the Fourth Circuit's decision

in International Science.

       The International Science court addressed three issues. First, it was presented with the

question whether the permissive language of the TCPA's private-action provision at issue here--that

a private action "may" be brought in state courts--does not make state court jurisdiction exclusive.

The Fourth Circuit held that Congress did not intend to grant jurisdiction over private actions to

federal courts, where it mentioned only state courts in the provision. International Science, 106 F.3d

at 1152. The court relied on the fact that federal courts require specific grants of jurisdiction; that

the statute specifically provides that private actions may be brought in state courts and that actions

by the states must be brought in federal courts; that Congress explicitly provided for concurrent

jurisdiction in other sections of the Communications Act; and that the TCPA's legislative history's

reference to small-claims courts supports a conclusion that the claims are best resolved in state

courts. International Science, 106 F.3d at 1151-53. The second issue the court addressed involved

whether the general federal-question jurisdictional statute6 (28 U.S.C. §1331 (1990)) confers on



       6
           The federal-question statute provides: "The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C.

§1331 (2006).

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federal courts jurisdiction over private actions. The court held that it does not, because the

"particularized congressional intent manifested in 47 U.S.C. §227(b)(3) governs, not the general

proposition announced in §1331." International Science, 106 F.3d at 1155. Third, the International

Science court addressed whether finding exclusive state jurisdiction raised constitutional questions,

specifically: (1) whether it would result in a violation of the equal protection clause; and (2) whether

it would infringe on the states' tenth amendment rights to govern without interference from the

federal government. As to equal protection, the court stated,7 in response to an argument that the "if

otherwise permitted" proviso violates equal protection because it allows a private cause of action

only where a state has no statutory prohibition against unsolicited fax transmissions and, therefore,

citizens of states that have no prohibition would not have the benefit of the federal statute:

        "The clause in 47 U.S.C. §227(b)(3) 'if otherwise permitted by the laws or rules of court of

        a State' does not condition the substantive right to be free from unsolicited faxes on state

        approval. Indeed, that substantive right is enforceable by state attorneys general or the [FCC]

        irrespective of the availability of a private [right of] action in state court. Rather, the clause

        recognizes that states may refuse to exercise jurisdiction authorized by the statute."

        (Emphases added.) International Science, 106 F.3d at 1156.

The court noted that, to the extent the existence of a private right of action varied between the states,

state and federal governments could still enforce the same substantive rights in federal court, and this

inequality was rationally related to a legitimate governmental interest:




        7
            Several courts refer to this portion of the International Science decision as "dicta." See, e.g.,

Accounting Outsourcing, 329 F. Supp. 2d at 800.

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       "[C]ongress understandably avoided opening federal courts to the millions of potential

       private TCPA claims by authorizing private actions only in state courts, presumably in the

       small claims courts. Similarly concerned over the potential impact of private actions on the

       administration of state courts, Congress included a provision to allow the states to prohibit

       private TCPA actions in their courts. *** With those interests in mind and recognizing that

       other enforcement mechanisms are available in the TCPA, we believe Congress acted

       rationally in *** allowing states to close [their courts] to the millions of private actions that

       could be filed if only a small portion of each year's 6.57 billion telemarketing transmissions

       were illegal under the TCPA." International Science, 106 F.3d at 1157.

       Addressing the tenth amendment,8 the court held that Congress did not overstep the

amendment when it enacted the TCPA, because it explicitly recognized the "states' power to reject

enforcement in their courts of the federally created right." International Science, 106 F.3d at 1157.

The court acknowledged that, in Testa v. Katt, 330 U.S. 386, 394, 91 L. Ed. 967, 972, 67 S. Ct. 810,

814-15 (1947), the Supreme Court held that the supremacy clause precludes state courts from

refusing to enforce federal claims. However, the court also noted that Testa's holding was limited

to federal enactments that provide for concurrent state and federal jurisdiction, which is not the case

with the TCPA, which provides for exclusive state jurisdiction. International Science, 106 F.3d at

1157-58. For this reason, the court declined to extend Testa to the TCPA, noting that adopting an

"opt-out" approach would avoid the constitutional issue left undecided by Testa--whether the TCPA



       8
           The tenth amendment provides: "The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people." U.S. Const., amend. X.

                                                 -14-
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violates the tenth amendment by coercing states to enforce federal law: "Congress enacted the TCPA

to assist states where they lacked jurisdiction; it empowered states themselves to enforce the TCPA

in federal court; it authorized private enforcement exclusively in state courts; and it recognized state

power to reject Congress' authorization." International Science, 106 F.3d at 1158.

       By this court's count, seven states' courts appear to have concluded that the "opt-out"

approach is the correct framework. See Edwards v. Direct Access, LLC, 121 Nev. 929, 932, 124

P.3d 1158, 1160 (2005) (adopting "opt-out" approach on the basis of supremacy-clause

considerations); Lary v. Flasch Business Consulting, 878 So. 2d 1158, 1164 (Ala. Civ. App. 2003)

(considering only "opt-out" and "opt-in" approaches and adopting "opt-out" approach on the basis

of supremacy-clause principles); Kaufman v. ACS Systems, Inc., 110 Cal. App. 4th 886, 895, 2 Cal.

Rptr. 3d 296, 304 (2003) (relying on International Science, noting that the "opt-in" approach has

been criticized and is the minority view, and noting that California had not prohibited TCPA actions

in state court); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 910 (Mo. 2002)

(following International Science and rejecting "opt-in" approach); Zelma v. Market U.S.A., 343 N.J.

Super. 356, 366, 778 A.2d 591, 598 (App. Div. 2001) (following International Science and rejecting

"opt-in" arguments); Hooters of Augusta, Inc. v. Nicholson, 245 Ga. App. 363, 365-66, 537 S.E.2d

468, 470-71 (2000) (finding no clear authority, construing TCPA to provide a remedy for Georgia

citizens, finding International Science persuasive, and determining that Georgia law did not

expressly prohibit private TCPA actions); Kaplan v. Democrat & Chronicle, 266 A.D.2d 848, 849,

698 N.Y.S.2d 799, 800-01 (App. Div. 1999) (citing International Science and noting the absence of

any state statute declining to exercise jurisdiction over TCPA claims).




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        One court has commented that the International Science court "neglected to realize that

allowing states to 'opt-out' could create a different constitutional issue, namely[,] whether Congress

can give a state authority to arbitrarily close its courts to a federal remedy. It is this constitutional

consideration which forms the basis of the 'acknowledgment' approach." Accounting Outsourcing,

329 F. Supp. 2d at 798.

                                  b. "Acknowledgment" Approach

        The "acknowledgment" approach requires "no enabling legislation for parties to assert private

TCPA claims." MLC Mortgage Corp., 2009 OK 37, ¶12, 212 P.3d 1199, 1204. Courts adopting this

approach, of which there are seven, interpret the TCPA's "if otherwise permitted" clause as merely

acknowledging "the principle that states have the right to structure their own court systems and that

state courts are not obligated to change their procedural rules to accommodate TCPA claims."

Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 179, 710 N.Y.S.2d 368, 372 (App. Div. 2000)

(adopting "acknowledgment" approach and rejecting "opt-in" approach on the bases of supremacy-

clause considerations, the statute's framework, and its legislative history);9 see also MLC Mortgage

Corp., 2009 OK 37, ¶¶12, 19, 212 P.3d 1199, 1201, 1207 (adopting "acknowledgment" approach on

the bases that the legislature previously recognized that an analogous state-law claim may be

criminally prosecuted and that the Oklahoma Constitution guarantees Oklahoma citizens open access

to the judicial system and allocates "unlimited original jurisdiction of all justiciable matters not

otherwise restricted to the district courts"); Portuguese American Leadership Council of the United



        9
            New York's intermediate courts appear to be split on whether the "opt-out" or

"acknowledgment" approach is the correct analytical framework. Compare Kaplan, 266 A.D.2d at

849, 698 N.Y.S.2d at 800-01, with Schulman, 268 A.D.2d at 179, 710 N.Y.S.2d at 372.

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States, 956 A.2d at 677-80 & n.8 (noting default rule that federal laws are enforceable in state courts

unless there is an explicit statutory directive and adopting "acknowledgment" approach by relying

on statute's language, which the court read to refer to neutral laws and rules governing each state's

court system, in addition to the statute's purpose, legislative history, and FCC interpretation; also

concluding that it need not decide whether District of Columbia is free to "opt out"); Consumer

Crusade, Inc. v. Affordable Health Care Solutions, Inc., 121 P.3d 350, 354-55 (Colo. App. 2005)

(relying on statute's legislative history and language and interpreting the "acknowledgment" approach

as avoiding the constitutional problems of the "opt-in" and "opt-out" approaches); R.A. Ponte

Architects, 382 Md. at 706-07, 857 A.2d at 11 (relying on statute's language, legislative history, and

supremacy-clause considerations, and other states' decisions); Mulhern v. MacLeod, 411 Mass. 754,

755-59, 808 N.E.2d 778, 779-81 (2004) (rejecting "opt-in" approach; adopting "acknowledgment"

approach on the bases of supremacy-clause principles, statute's language and legislative history, and

other courts' decisions; declining to address whether states may "opt-out"); Condon v. Office Depot,

Inc., 855 So. 2d 644, 647-48 (Fla. App. 2003) (rejecting "opt-in" approach; adopting

"acknowledgment" approach on the bases of supremacy clause, statute's language, and legislative

history).

        "Under [the 'acknowledgment'] view, no state can refuse to entertain a private TCPA action,

but a state is not compelled to adopt special procedural rules for such actions." MLC Mortgage

Corp., 2009 OK 37, ¶12, 212 P.3d 1199, 1204. Advocates of this interpretation base their opinions

on the supremacy clause and the TCPA's legislative history. Accounting Outsourcing, 329 F. Supp.

2d at 798. As to the supremacy clause, they conclude that permitting states to "opt-in" or "opt-out"

would violate the supremacy clause's language making federal law the supreme law of the land and



                                                 -17-
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charging states courts with a coordinate responsibility to enforce federal law pursuant to their regular

modes of procedure. Schulman, 268 A.D.2d at 177-78, 710 N.Y.S.2d at 371. "[F]ederal law must

take state courts 'as it finds them,' because the states 'have great latitude to establish the structure and

jurisdiction of their own courts.' [Howlett, 496 U.S. at 372, 110 L. Ed. 2d at 351, 110 S. Ct. at

2441]. Thus, a state may decline to exercise jurisdiction over a federal claim by applying a neutral

rule of judicial administration. [Citation.]" Consumer Crusade, 121 P.3d at 353.

        As to the TCPA's legislative history, proponents of the "acknowledgment" theory point to

South Carolina Senator Ernest Hollings' comments to Congress before the bill's passage, concerning

the private right of action:

                " 'The substitute bill contains a private right-of-action provision that will make it

        easier for consumers to recover damages from receiving these computerized calls. The

        provision would allow consumers to bring an action in State court against any entity that

        violates the bill. The bill does not, because of constitutional constraints, dictate to the States

        which court in each State shall be the proper venue for such an action, as this is a matter for

        State legislators to determine. Nevertheless, it is my hope that States will make it as easy as

        possible for consumers to bring such actions, preferably in small claims court. The consumer

        outrage at receiving these calls is clear. Unless Congress makes it easier for consumers to

        obtain damages from those who violate this bill, these abuses will undoubtedly continue.

                Small claims court or a similar court would allow the consumer to appear before the

        court without an attorney. The amount of damages in this legislation is set to be fair to both

        the consumer and the telemarketer. However, it would defeat the purposes of the bill if the

        attorneys' costs to consumers of bringing an action were greater than the potential damages.



                                                   -18-
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          I thus expect that the States will act reasonably in permitting their citizens to go to court to

          enforce this bill.' " R.A. Ponte Architects, 382 Md. at 710-11, 857 A.2d at 13-14, quoting

          137 Cong. Rec. 30821-22 (1991) (statement of Senator Hollings).

          Advocates of the theory "argue that the 'if otherwise permitted' language means that states

are permitted to determine which of their courts will hear TCPA claims, not whether their state will

be open to such claims." (Emphasis in original.) Accounting Outsourcing, 329 F. Supp. 2d at 799.

Some courts also read an expression of congressional intent in the statute's framework, wherein the

states are given exclusive jurisdiction over private suits and federal courts are limited to civil actions

brought by state attorneys general or the FCC. Schulman, 268 A.D.2d at 178, 710 N.Y.S.2d at 371.

                                          c. "Opt-in" Approach

          The "opt-in" approach, which defendants urge us to adopt, concludes that Congress intended

to deprive state courts of jurisdiction over private TCPA claims. It interprets the statute's "if

otherwise permitted" language as indicating that the TCPA does not create an immediately

enforceable right. Under this approach, actions may be maintained in state courts only upon a

legislative action or court rule "opting-in" to exercise jurisdiction over such actions. MLC Mortgage

Corp., 2009 OK 37, ¶13, 212 P.3d 1199, 1205. Only one state--Texas--has adopted the "opt-in"

theory.

          In Chair King, the Texas Supreme Court held that unsolicited faxes sent before the enactment

of a state statute permitting a private right of action for TCPA violations were not actionable under

the TCPA in Texas state courts. Chair King, 184 S.W.3d at 708. The court held that the TCPA's

plain, unambiguous language, its purpose, and its historical context warranted adoption of the "opt-

in" approach. Chair King, 184 S.W.3d at 711.



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        The court reviewed the three general approaches to interpreting the statutory language. The

court rejected the "acknowledgment" approach, finding no support for it in the statutory language

or the legislative history. As to the statutory language, the court noted that the "acknowledgment"

approach risks violating the supremacy clause because it fails to give effect to all of the language in

the statute:

        "Had the TCPA simply provided that '[a] person or entity may ... bring ... an action based on

        a [TCPA] violation,' the states' constitutional obligation under the Supremacy Clause to

        entertain such claims would be irrefutable. But Congress chose to qualify the private TCPA

        right of action it created by including the proviso 'if otherwise permitted by the laws or rules

        of court of a State.' [Citation.] Failure to give effect to the statutory proviso would itself run

        the risk of violating the Supremacy Clause by refusing to apply the federal right as written."

        Chair King, 184 S.W.3d at 712.

        The court also found the "if otherwise permitted" language "doubly redundant" under the

"acknowledgment" approach. Chair King, 184 S.W.3d at 713. It explained that:

        "State district courts of general jurisdiction are presumed to have adjudicative power over

        federal statutory private damage claims unless Congress specifically decides otherwise, so

        there would be no reason for Congress to import that general principle into the statutory

        proviso when it does not do so in other federal statutes. [Citation.] Nevertheless, Congress

        did choose to acknowledge this general principle elsewhere in the TCPA by stating that suit

        may be brought 'in an appropriate court of that State.' 47 U.S.C. §227(b)(3). Interpreting the

        'if otherwise permitted' provision to have the same meaning 'would be redundant and risk




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        rendering the words meaningless.' [Houston Cellular], 135 S.W.3d at 382." Chair King, 184

        S.W.3d at 713.

        As to the provision's reference to rules of court ("if otherwise permitted by the laws or rules

of court of a State" (emphasis added) (47 U.S.C. §227(b)(3) (2000)), the court dismissed the

"acknowledgment" approach proponents' arguments that the phrase evidenced Congress's

acknowledgment of states' rights to independently administer their court systems and evidenced a

lack of intent to require affirmative state legislative action before a party could bring a private TCPA

claim in state court, noting that such a reading would render as surplusage the " 'if otherwise

permitted by the laws *** of a State' " language. Chair King, 184 S.W.3d at 713, quoting 117 U.S.C.

§227(b)(3) (2000).

        Reviewing Senator Hollings' comments when he introduced the substitute bill containing the

private right of action, the court concluded that the speech does not compel adoption of the

"acknowledgment" theory. In its assessment of the legislative history, the court first noted that there

could be no certainty that the senator's understanding of the private right of action reflected the entire

Congress's view. Next, it noted that, even if Senator Hollings' remarks accurately captured the

congressional intent, his comments could also support the "opt-in" approach:

        "By stating his expectation that 'the States will act reasonably in permitting their citizens to

        go to court to enforce this bill,' Senator Hollings implies that states must act in an affirmative

        manner before the TCPA private damage claim is cognizable in state court. In sum, we

        believe that Senator Hollings's remarks are of limited interpretive value." Chair King, 184

        S.W.3d at 713.




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       Turning to the "opt-out" approach, the Texas Supreme Court dismissed proponents'

arguments that the approach sufficiently considered supremacy-clause and inefficiency issues. The

court dismissed supremacy-clause concerns by noting that "giving effect to the ['if otherwise']

proviso that Congress created cannot run afoul of the supremacy clause. Having concluded that

Congress intended the statutory proviso to have some conditional effect, be it 'opt-out' or 'opt-in,' we

fail to see how supremacy clause concerns are implicated at all." Chair King, 184 S.W.3d at 715.

The court found it significant that Congress made the private right of action available exclusively

through state courts, noting that it was likely due to the millions of telemarketing calls made daily

and because the locus of regulation was centered in the states. The court then found it reasonable

to presume that Congress recognized the burden on state courts that these claims could present and

further that Congress would, in consideration of the potential burden on state court resources of a

flood of TCPA litigation, choose to allow states to have a voice in the matter. Chair King, 184

S.W.3d at 715-16. Finally, noting that more than half the states had statutes restricting telemarketing

when the TCPA was enacted, the court concluded that the TCPA's "remedies were meant to enhance

the states' existing attempts to regulate unsolicited calls and faxes. *** There is strong evidence that

Congress wanted to assist state regulation in reaching interstate communications if a state so desired,

not to create an independent regulatory framework for a potential flood of individual state-court

lawsuits." Chair King, 184 S.W.3d at 716.

       Having rejected the "acknowledgment" and "opt-out" approaches, the Chair King court

turned to the "opt-in" interpretation. Relying on the dictionary definitions of "otherwise" and

"permit," its reading of congressional intent, and its interpretation of the TCPA's preemption

language, the court adopted the "opt-in" approach. The court used the dictionary definitions to



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conclude that the words "otherwise permitted" suggested "the necessity of affirmative state action

to activate the TCPA's private cause of action." Chair King, 184 S.W.3d at 716. The court next

concluded that the congressional intent supported its "opt-in" reading of the statutory proviso, where

the TCPA was intended to supplement state regulation and where Congress was likely aware that

state courts could become inundated with suits. Chair King, 184 S.W.3d at 716-17 (proviso

"indicates deliberate deference to an area of uniquely state concern"). Agreeing that the statute's

most important purpose is to swiftly eliminate unsolicited facsimile advertising, the court noted,

"[b]ut we believe Congress hinged the swiftness of the federal legislation on the willingness of states

to bear the burden and cost of overseeing these claims." Chair King, 184 S.W.3d at 717. Finally,

the court rejected an argument that the TCPA's preemption language would be rendered meaningless

by an "opt-in" interpretation, stating that the statute's language does not preempt state laws imposing

more restrictive requirements or even prohibiting the use of telemarketing equipment (47 U.S.C.

§227(e) (2000)), and concluding:

       "Congress's intent to supplement state legislation explains why the preemption concern

       would have focused on more aggressive regulation by the states. [Citation.] Congress clearly

       did not intend the TCPA to establish a ceiling if states decided to be more aggressive in their

       approach, but it does not necessarily follow that Congress intended the TCPA to be a

       mandatory floor for private enforcement whether or not a state chose to allow it." Chair

       King, 184 S.W.3d at 718.

The court cited case law discussing federal preemption in fields traditionally occupied by the states

and noted that there is an assumption that the states' historic police powers are not to be superseded

by federal statutes unless that is Congress's clear purpose. Chair King, 184 S.W.3d at 718.



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                  3. Parties' Arguments and Analysis of the Emerging Approaches

        In light of the foregoing background, we turn to the parties' arguments in this case.

Defendants urge us to follow Chair King, arguing that it is the most well reasoned and persuasive

of the various interpretations of the TCPA's "if otherwise permitted" language. Defendants contend

that First Capital Mortgage Corp. v. Union Federal Bank of Indianapolis, 374 Ill. App. 3d 739

(2007), upon which Italia Foods relies, does not control because it did not directly address the

question here, as the parties in that case agreed that the "acknowledgment" approach should apply

to the court's analysis and because the court did not address Chair King and the "opt-in" approach.

Accordingly, defendants urge us to answer "yes" to the first certified question.

        Italia Foods counters that Chair King is poorly reasoned and inconsistent with jurisprudence

concerning state-court jurisdiction over federal statutory claims. State courts of general jurisdiction

are presumed to have jurisdiction over federal statutory claims, and the presumption can be

overcome only by explicit statutory language, legislative history, or clear incompatibility between

state-court jurisdiction and federal interests. In Italia Foods' view, the TCPA's "if otherwise

permitted" language does not amount to an explicit statutory directive and is, at most, ambiguous.

It reasons that any doubts concerning the meaning of the phrase should be resolved by holding that

no specific enabling legislation is required. Italia Foods next argues that Chair King's construction

of the statutory language violates the tenth amendment and the Illinois Constitution because it

amounts to an attempt by Congress to dictate how Illinois should organize its courts. Addressing

the Illinois Constitution, Italia Foods notes that only courts in this state have the power to determine

whether a matter is justiciable and within the subject matter jurisdiction of a circuit court. Belleville

Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 335-36 (2002). Thus, enabling



                                                  -24-
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legislation could never be enacted in Illinois because it is beyond the General Assembly's power.

Finally, Italia Foods argues that Chair King wrongly concluded that any alternative construction of

the "if otherwise permitted" language would render it "doubly redundant." Chair King, 184 S.W.3d

at 713. According to Italia Foods, Congress routinely includes language reflecting constitutional

limitations on its powers in "an exercise of caution" (R.A. Ponte Architects, 382 Md. at 715, 857

A.2d at 15-16) and it should not be construed to have any further meaning.

       We find unconvincing Chair King's analysis and conclude that the case is wrongly decided.

The court's textual analysis and its review of the legislative history is unconvincing to rebut the

presumption of state-court jurisdiction. First, the court failed to show that the TCPA's proviso

reflects Congress's "explicit statutory directive" (Gulf Offshore, 453 U.S. at 478, 69 L. Ed. 2d at 791,

101 S. Ct. at 2875). Rather, the court merely determined that the "opt-in" approach would give full

effect to the "if otherwise permitted" language and would not render it redundant. The court noted

that Congress had elsewhere in the statute used more succinct and unqualified language to clarify

that private claims may be brought in state courts and concluded that, by using the "if otherwise

permitted" qualification, Congress necessarily intended something different, specifically, to give the

states a voice in the matter with respect to private actions under section 227(b)(3). We disagree. It

has been noted:

       "[L]egislative bodies often refer to the pertinent constitutional principles underlying

       legislation even though such references may not, strictly, be required. For example, when

       Congress enacts legislation under its Commerce Clause power, it will often refer to the

       underlying constitutional principle or the constitutional provision. Legislation in the criminal

       law field sometimes will recite that it applies only to offenses committed after the effective



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       date of the statute, even though constitutional ex post facto principles would require the same

       result." R.A. Ponte Architects, 382 Md. at 714, 857 A.2d at 15-16.

       We agree with the Mulhern court that the "if otherwise permitted" language reflects a

congressional intention "that Federal claims remain subject to State procedural law: Congress is no

doubt aware of the Supreme Court's long-standing recognition that States 'have great latitude to

establish the structure and jurisdiction of their own courts' and 'may apply their own neutral

procedural rules to federal claims, unless those rules are pre-empted by federal law.' [Citation.] The

TCPA was crafted to accommodate State interests, while respecting the structure, jurisdiction, and

procedural rules of State courts." Mulhern, 441 Mass. at 757-58, 808 N.E.2d at 780-81.

       We also find persuasive the Court of Appeals of Maryland's reasoning that the first part of

the phrase "if otherwise permitted by the laws or rules of court of a State, bring in an appropriate

court of that State" (coupled with the legislative history, which we address below) refers to "neutral

general jurisdictional and procedural laws and rules governing each state's court system." See R.A.

Ponte Architects, 382 Md. at 711, 857 A.2d at 14. As that court explained, the word "otherwise"

refers to state laws and rules other than substantive telemarketing laws (which are the subject of the

TCPA), and the phrase "of court" reinforces this interpretation. R.A. Ponte Architects, 382 Md. at

711, 857 A.2d at 14. Congress, thus, left to state legislators or courts to determine proper venue

(possibly in small-claims courts, which were the sponsor's preference) and not the issue whether the

federal action should be entertained in state courts. R.A. Ponte Architects, 382 Md. at 711, 857 A.2d

at 14. We also find persuasive the Maryland court's reasoning that the reference to "laws" does not

mean state laws regulating telemarketing, because those laws were aimed at intrastate

communications, whereas the TCPA targets interstate activity. "The federal statute was designed



                                                -26-
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to fill a void in state laws; it was not intended to be a statute limited by state laws which Congress

deemed inadequate." R.A. Ponte Architects, 382 Md. at 713-14, 857 A.2d at 15 (further noting that,

in many states, state supreme courts do not have constitutional authority to promulgate rules of

practice and procedure). In this respect, we reject Chair King's criticism that any reading other than

the "opt-in" approach renders the phrase doubly redundant.

       As to the legislative history of the TCPA's private right of action, we find Chair King's

analysis thereof even more problematic. The Texas Supreme Court seized upon Senator Hollings'

statement that he expected that the states would act reasonably and permit their citizens to go to court

to enforce the bill. However, the Chair King court did not analyze the context in which the statement

was made. Senator Hollings commented:

               " 'Small claims court or a similar court would allow the consumer to appear before

       the court without an attorney. The amount of damages in this legislation is set to be fair to

       both the consumer and the telemarketer. However, it would defeat the purposes of the bill

       if the attorneys' costs to consumers of bringing an action were greater than the potential

       damages. I thus expect that the States will act reasonably in permitting their citizens to go

       to court to enforce this bill.' " R.A. Ponte Architects, 382 Md. at 710-11, 857 A.2d at 13-14,

       quoting 137 Cong. Rec. 30821-22 (1991) (statement of Senator Hollings).

       It is clear from the context that the Senator, in the final sentence above, was referring to his

concern about attorney fees and noting that access to small-claims courts would permit plaintiffs to

avoid this burden. Thus, in our view, the Chair King court failed in its legislative history analysis

to show that the "unmistakable implication" (Gulf Offshore, 453 U.S. at 478, 69 L. Ed. 2d at 791,

101 S. Ct. at 2875) of the TCPA's legislative history is that the presumption of state-court



                                                 -27-
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jurisdiction is rebutted. We believe the legislative history reflects a congressional intent to permit

states to determine which of their courts may hear TCPA claims.

       Turning to Chair King's supremacy-clause and efficiency concerns, we note that, in rejecting

the "opt-out" approach, the court referred to the "explicit" statutory directive and the TCPA's

purpose. Chair King, 184 S.W.3d at 716. Here, again, the court's analysis is unpersuasive and fails

to rebut the presumption of state-court jurisdiction. The court dismissed supremacy-clause concerns

by reasoning that giving effect to the "conditional" proviso that Congress drafted could not run afoul

of the supremacy clause. Chair King, 184 S.W.3d at 715. This analysis is problematic because it

presumes that Chair King's reading of the proviso is correct. As we determined above, contrary to

the Chair King court, the proviso is ambiguous. The Chair King court also found it reasonable to

presume that Congress recognized the burden on state courts of TCPA claims and that it chose to

allow the states to have control over their court dockets. Chair King, 184 S.W.3d at 715-16. In this

respect, it concluded that the TCPA's remedies were meant to assist state regulation "if a state so

desired, not to create an independent regulatory framework for a potential flood of individual state-

court lawsuits." Chair King, 184 S.W.3d at 716. We fail to see how this interpretation necessarily

flows from the statute's purpose and wording. In our view, it is more plausible (especially in light

of the statute's legislative history) that Congress intended to assist state regulation by creating a

private right of action under the TCPA and not requiring any action on the states' parts to permit

TCPA claims to be brought in their courts. We find the Chair King court's arguments insufficient

to rebut the presumption of state-court jurisdiction, as that intention must be "explicit,"

"unmistakable," or shown by "a clear incompatibility between state-court jurisdiction and federal

interests." Gulf Offshore, 453 U.S. at 478, 69 L. Ed. 2d at 791, 101 S. Ct. at 2875.



                                                -28-
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        Finally, we are unpersuaded by the Texas Supreme Court's analysis and adoption of the "opt-

in" approach. The court relied on the dictionary definitions of "otherwise" and "permit" in

concluding that they suggest "the necessity of affirmative state action to activate the TCPA's private

cause of action." Chair King, 184 S.W.3d at 716. We fail to see how this conclusion necessarily

results from terms that mean " 'DIFFERENTLY' " and " 'ALLOW.' " Chair King, 184 S.W.3d at

716, quoting Webster's Third New International Dictionary (1961). Further, we note that another

criticism of the "opt-in" approach is that it might run afoul of the tenth amendment. It has been

noted that "requiring states to 'opt-in' before they could hear private damages actions under the

TCPA would be akin to Congress commanding state legislatures to legislate" (Accounting

Outsourcing, 329 F. Supp. 2d at 796). See also MLC Mortgage, 2009 OK 37, ¶14, 212 P.3d 1199,

1205; Consumer Crusade, 121 P.3d at 353.

        Having rejected Chair King's rationale for adopting the "opt-in" approach, we conclude that

the "acknowledgment" theory is the correct approach to analyzing the TCPA's private right of action.

In light of the ambiguity in the statutory language, we find guidance, as noted above, in the

legislative history and the statute's purpose. We also find that constitutional considerations warrant

adoption of the "acknowledgment" approach and not the "opt-out" or "opt-in" theory.

        The Howlett Court stated that three corollaries follow from the proposition that federal law

is the law of the land in the states: (1) when the parties and controversy are properly before it, a state

court may not deny a federal right in the absence of a valid excuse; (2) "An excuse that is

inconsistent with or violates federal law is not a valid excuse. The supremacy clause forbids state

courts to dissociate themselves from federal law because of disagreement with its content or a refusal

to recognize the superiority or authority of its source"; and (3) the Court must act with caution before



                                                  -29-
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deciding that a state court is obligated to entertain a claim when the state's neutral rules of court

administration obligate the court to refuse jurisdiction; in other words, states have great latitude in

structuring their courts, establishing their jurisdiction, and applying their neutral procedural rules

(unless those rules are preempted by federal law).10 Howlett, 496 U.S. at 369-72, 110 L. Ed. 2d at

348-51, 110 S. Ct. at 2439-41.

        The Illinois Constitution provides that Illinois circuit courts have "original jurisdiction of all

justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating

to redistricting of the General Assembly and to the ability of the Governor to serve or resume office.

Circuit Courts shall have such power to review administrative action as provided by law."

(Emphasis added.) Ill. Const. 1970, art. VI, §9. Although the legislature can create new justiciable

matters via legislation creating rights and duties with no common-law or equitable counterparts, any

such actions do not confer jurisdiction on the circuit courts. Belleville Toyota, 199 Ill. 2d at 335.

Rather, except in the area of administrative review, the circuit court's jurisdiction is conferred by the

constitution, not the legislature. Belleville Toyota, 199 Ill. 2d at 335-36. "The General Assembly,

of course, has no power to enact legislation that would contravene article VI." Belleville Toyota,



        10
             The Court noted that only on three occasions had it found a valid excuse for a state court's

refusal to entertain a federal cause of action, each of which involved a neutral rule of judicial

administration: first, where neither party was a resident of the forum; second, where the cause of

action arose outside the territorial jurisdiction; and third, where the Court allowed a state court to

apply the doctrine of forum non conveniens to bar adjudication of a Federal Employer Liability Act

case, so long as the doctrine was impartially enforced. Howlett, 496 U.S. at 374-75, 110 L. Ed. 2d

at 325, 110 S. Ct. at 2442.

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199 Ill. 2d at 335. Thus, our constitution precludes and would invalidate any legislative action

purporting to "opt-in" or "opt-out" of the TCPA. Furthermore, it has been noted that there is a

tension between an interpretation of the TCPA that requires a state to pass enabling legislation (i.e.,

to "opt-in") before a private action may be brought in that state's courts and "the rule of presumed

enforceability derived from the Supremacy Clause." Portuguese American Leadership Council, 956

A.2d at 676-77. It has been further noted that the presumption of state-court jurisdiction is

"compelling where, as under the TCPA, private litigants have no recourse to Federal courts."

Mulhern, 441 Mass. at 757, 808 N.E.2d at 780. Finally, we noted above the tenth amendment

concerns in terms of Congress "commanding state legislatures to legislate" (Account Outsourcing,

329 F. Supp. 2d at 796).

       As to the "opt-out" approach, the court in another case has commented:

       "It would be an extreme anomaly, in the unusual situation where state courts have apparently

       been given exclusive jurisdiction over the federal cause of action, for Congress to have

       intended that states could discriminate against the federal cause of action. ***

               *** If Congress were to authorize such an unusual and unprecedented result, one

       would expect that it would do so expressly and unequivocally. Absent such a clear

       congressional statement, the normal rule precluding state law discrimination against federal

       causes of action should apply." R.A. Ponte Architects, 382 Md. at 715-16, 857 A.2d at 16-

       17.

See also Consumer Crusade, 121 P.3d at 354.




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This approach raises supremacy-clause concerns in that it permits states to close their courts to

federal claims for which Congress provided no federal forum. See Consumer Crusade, 121 P.3d at

354 (further noting that early cases failed to address this constitutional issue).

        Although we agree with Italia Foods that the "acknowledgment" approach is the proper

analytical framework, we disagree with its argument that we must follow First Capital Mortgage.

Italia Foods argues that the First Capital Mortgage court independently analyzed the issue and

adopted the "acknowledgment" approach, that the case is binding precedent, and that, even if the

court did not expressly analyze the issue, the court's reference to the parties' agreement in that case

would be irrelevant because courts have an independent duty to consider their subject matter

jurisdiction.

        In First Capital Mortgage, a mortgage company sued a bank, alleging that the bank sent it

hundreds of unsolicited faxes for over two years. In the first count of its complaint, the mortgage

company sought to recover under the TCPA. The trial court granted the bank's motion to dismiss that

count. 735 ILCS 5/2--619 (West 2004). On appeal, the parties agreed that the interpretation of the

TCPA's "if otherwise permitted" language should follow the "acknowledgment" theory. After noting

that the "acknowledgment" theory comported with the Supreme Court's reasoning in Howlett, 496

U.S. at 367-72, 110 L. Ed. 2d at 347-51, 110 S. Ct. at 2438-41 (addressing the supremacy clause),

and that the TCPA expressly grants a private right of action, the First District held that the "if

otherwise permitted" language "allows state courts to apply 'neutral rule[s] of judicial administration'

" to TCPA claims and that, if the rules bar such claims, state courts may dismiss them. First Capital

Mortgage, 374 Ill. App. 3d at 742, quoting Howlett, 496 U.S. at 374, 110 L. Ed. 2d at 352, 110 S.

Ct. at 2442. The court further concluded that, because no neutral rule of judicial administration



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No. 2--08--1148


barred the mortgage company's TCPA claim against the bank, reversal of the dismissal was

warranted. First Capital Mortgage, 374 Ill. App. 3d at 742.

       First Capital Mortgage offers limited insight here because the parties in that case agreed that

the "acknowledgment" approach was the correct interpretive framework. Further, other than noting

that the approach comported with Howlett, the First Capital Mortgage court did not undertake any

analysis of the interpretive theories that have developed, nor did it specifically address Chair King.

       We further note that we find of limited guidance the FCC's statement concerning the TCPA.

Italia Foods argues that Chair King ignored the FCC's "interpretation" of the TCPA. In 1992, the

FCC adopted rules implementing the TCPA. In re Rules & Regulations Implementing the Telephone

Consumer Protection Act of 1991, 7 F.C.C.R. 8752 (1992) (1992 Report & Order). In discussing

the private right of action under the statute, the FCC stated: "Absent state law to the contrary,

consumers may immediately file suit in state court if a caller violates the TCPA's prohibitions on the

use of automatic telephone dialing system[s] and artificial or prerecorded voice messages.

§227(b)(3)."11 1992 Report & Order, 7 F.C.C.R. at 8780; see also F.C.C. DA No. 03--153, par. 206

(June 26, 2003) (language "suggests that Congress contemplated that [private actions were] a matter

for consumers to pursue in appropriate state courts, subject to those courts' rules"). Italia Foods

argues that Congress has not altered the statute's language since the FCC's statement and notes that

the Chair King court did not consider the FCC's pronouncement. In its view, as courts are required




       11
            The TCPA's operative language is the same with respect to suits to enforce prohibitions

against telephone solicitations and unsolicited advertisements via fax machine. Compare 47 U.S.C.

§227(b)(3) (2000) with 47 U.S.C. §227(b)(1)(A) (2000).

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to defer to agencies' reasonable interpretations of federal statutes, the FCC's statement in its 1992

Report & Order is binding.

        In reaching our decision, we note that the FCC's pronouncement, although ordinarily entitled

to some deference (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

844, 81 L. Ed. 2d 694, 704, 104 S. Ct. 2778, 2782 (1984)), offers limited guidance because the FCC

did not directly address the issue here.

        In summary, we answer the first certified question in the negative. The Illinois General

Assembly need not enact enabling legislation before private TCPA claims can be brought and

enforced in Illinois state courts.

                            B. Penalties/Assignability/Limitations Period

        The second certified question asks: "Are the TCPA claims alleged in this case 'statutory

penalties' under Illinois law? And if so: (a) Are those claims assignable under Illinois law? [and]

(b) Does Illinois' two[-]year statutory penalty limitations period [(735 ILCS 5/13--202 (West 2002))]

apply to such claims, as opposed to [the federal four-year limitations period for civil actions (28

U.S.C. §1658 (2000))]?" These issues, as parts of a certified question, present questions of law that

we review de novo. Barbara's Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 57-58 (2007).

        Preliminarily, we note that the first two parts of the second certified question are inartfully

drafted, in that they appear to confuse several legal theories or concepts. In essence, the parties ask

us to resolve whether the TCPA claim here was assignable; specifically, whether Eclipse properly

assigned its TCPA claim to Hinman. Courts have taken two approaches in addressing this issue.

The first approach, which is the essential question in the first part of the second certified question,

asks whether the statute is a penal (as opposed to remedial) enactment. Generally, if a statute is



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penal, claims thereunder are not assignable, because they are personal rights. See, e.g., Hart

Conversions, Inc. v. Pyramid Seating Co., 658 N.E.2d 129, 131 (Ind. App. 1995) ("The general rule

is that the right to collect a penalty is a personal right which is not assignable"); see also North

Chicago Street R.R. Co. v. Ackley, 171 Ill. 100, 117 (1897) (in reviewing common law, noting that

personal-injury actions are not assignable). The second approach, which is the primary question

raised in subpart (a) of the second certified question, asks whether recovery under the statute is

personal to the injured party. This question is relevant because the only causes of action that are not

assignable in Illinois are personal-injury and related actions. Kleinwort, 181 Ill. 2d at 225. Either

approach can provide an independent basis upon which to determine whether a TCPA claim is

assignable. Because current Illinois law does not favor one approach over the other and because it

is not clear to us that our supreme court would choose one approach over the other, we address both

approaches.

                                    1. Penal v. Remedial Statute

       The trial court found that the TCPA presumes damages for economic injury that are difficult

to quantify and, therefore, the statute is remedial and not penal. The court found Valley Forge

Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352 (2006), instructive and further found that

the TCPA implicates privacy and property interests and that property interests are assignable.

Finally, the court relied on the rule that claims are generally assignable.

       Relying on the test in McDonald's Corp. v. Levine, 108 Ill. App. 3d 732 (1982), defendants

argue that, in light of the TCPA's silence on assignability, we must look to Illinois law, which

provides that TCPA claims are statutory penalties and that such penalty claims are not assignable.

       In McDonald's, this court stated:



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               "A statute is a statutory penalty if [(1)] it imposes automatic liability for a violation

       of its terms and [(2)] the amount of liability is predetermined by the act and [(3) that liability

       is] imposed without actual damages suffered by the plaintiff. [Citation.] A statute is

       remedial when it gives rise to a cause of action to recover compensation suffered by the

       injured person. [Citation.] *** [A] statute is remedial and not penal where it imposes

       liability only when actual damage results from a violation. In such a case, liability is

       contingent upon damage being proven by the plaintiff. Under a penal statute, liability is not

       contingent but imposed automatically when a violation of the statute is established."

       McDonald's, 108 Ill. App. 3d at 738.

       This court further stated: "A statute requiring the payment of actual and punitive damages

by a wrongdoer does not constitute a statutory penalty." McDonald's, 108 Ill. App. 3d at 739

(holding that section 14--6 of the Eavesdropping Act, which lists three civil remedies available for

violations thereunder--injunctive relief and actual and punitive damages--is not a statutory penalty).

       The TCPA provides that a plaintiff may bring an action: (1) for an injunction; (2) for "an

action to recover for actual monetary loss from such a violation, or to receive $500 in damages for

each such violation, whichever is greater"; or (3) both an injunction and the greater of the actual

damages amount or $500 per violation. 47 U.S.C. §227(b)(3) (2000). Further, a court has discretion

to treble the $500 amount in cases where it finds that the defendant willfully or knowingly violated

the statute or regulations. 47 U.S.C. §227(b)(3) (2000). In its third amended complaint, Italia Foods

sought injunctive relief and $500 in damages for each violation.

       Here, defendants argue that the monetary relief Italia Foods seeks--$500 in damages per

violation--constitutes a statutory penalty because it is not intended to compensate plaintiffs for any



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No. 2--08--1148


actual damages incurred from the "pennies" they may have lost from a single unsolicited fax.

Further, they contend that the TCPA's $500 damages award requires no proof of actual injury. In

defendants' view, Italia Foods' ability to potentially recover actual damages for alleged TCPA

violations does not preclude application of the TCPA's preset $500 damages award for each

unsolicited fax.

        We disagree with defendants' argument that McDonald's controls. That case provides little

interpretive assistance here because its test is not easily applied to a statute like the TCPA, which

contains both a provision for actual damages and a statutory penalty component. We also find

defendant's reliance on Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1 (2009), to be misplaced. That

case involved a provision in Chicago's landlord and tenant ordinance, and the issue presented was

whether the provision imposed a statutory penalty for the purposes of the two-year limitations period

in section 13--202 of the Code of Civil Procedure (735 ILCS 5/13--202 (West 2004)). The supreme

court, applying the McDonald's test, held that the provision was a penalty because it imposed

automatic liability for violations thereunder, set forth a predetermined amount of damages, and

imposed liability regardless of the plaintiffs' actual damages. Landis, 235 Ill. 2d at 13. We conclude

that Landis does not compel a conclusion here that the TCPA is penal, because, in assessing the final

prong of the McDonald's test (i.e., that the penalty is imposed without regard to the actual damages

suffered by the plaintiff), the supreme court noted that, in contrast to other provisions of the landlord

and tenant ordinance, the provision at issue "does not specifically allow a plaintiff to recover actual

damages." Landis, 235 Ill. 2d at 14. Significantly, the TCPA provides that option. 47 U.S.C.

§227(b)(3)(B) (2000).




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          We find Scott v. Ass'n for Childbirth at Home, International, 88 Ill. 2d 279 (1981),

instructive. In Scott, the supreme court, in the context of addressing a due process argument, held

that the Fraud Act was not penal. Scott, 88 Ill. 2d at 288. The court noted that the statute "is a

regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a

remedy to individuals injured by them. *** The [Fraud] Act is clearly within the class of remedial

statutes which are designed to grant remedies for the protection of rights, introduce regulation

conducive to the public good, or cure public evils." Scott, 88 Ill. 2d at 288. The court found that the

fact that the Fraud Act contains a civil penalty component does not render it a penal statute. Scott,

88 Ill. 2d at 288. The supreme court stated that "the penalty is but one part of the regulatory scheme,

intended as a supplemental aid to enforcement rather than as a punitive measure." Scott, 88 Ill. 2d

at 288.

          We find the Scott court's analysis and characterization of the civil penalty provision in the

Fraud Act persuasive in analyzing the TCPA. The Fraud Act provides that a plaintiff may bring an

action for actual damages (815 ILCS 505/10a (West 2008)) and that the Attorney General or a State's

Attorney may bring an action seeking an injunction, restitution, or a civil penalty (815 ILCS 505/7

(West 2008)). Similarly, the TCPA provides that a plaintiff may bring an action for injunctive relief

and/or the greater of actual damages or $500 per violation; it also contains a treble-damages

provision. 47 U.S.C. §227(b)(3) (2000). Further, another portion of the statute contains a federal

enforcement component that authorizes state attorneys general to bring civil actions in federal court

on behalf of their residents to obtain injunctive relief and to recover monetary damages; in addition,

the FCC may intervene in any such action. 47 U.S.C. §227(f)(1), (f)(3) (2000).




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        We are further persuaded by the fact that it appears that the majority of courts to consider the

issue have concluded that the TCPA is a remedial statute, at least in part on the basis, as did the Scott

court (Scott, 88 Ill. 2d at 288), that the statute's purpose (discerned in part from a reading of its

legislative history) warrants this result. See, e.g., Motorists Mutual Insurance Co. v. Dandy-Jim,

Inc., 182 Ohio App. 3d 311, 322-23, 2009--Ohio--2270, ¶¶35, 36 (holding that TCPA is a remedial

law because the purpose of the statutory damages provision is to liquidate uncertain actual damages

and to encourage victims to bring suit; damages are set at fair amount; treble-damages provision is

not punitive, because it is imposed irrespective of any intent to violate the law); Penzer v.

Transportation Insurance Co., 545 F.3d 1303, 1311 (11th Cir. 2008) (citing cases and noting that

TCPA's statutory damages provision is not punitive); Terra Nova Insurance Co. v. Fray-Witzer, 449

Mass. 406, 869 N.E.2d 565, 575 (2007) (applying New Jersey law and holding that the TCPA is a

remedial statute, where Congress's purpose was to protect fax machine owners from unsolicited

advertisements and where the statutory damages remedy flows to the consumer and not the

government; possibility that statutory damages could be greater than actual harm suffered does not

transform TCPA into a penal statute, as this would ignore nature of penal statute and would conflict

with New Jersey's mandate to liberally interpret insurance policies in favor of the insured); Melrose

Hotel Co. v. St. Paul Fire & Marine Insurance Co., 432 F. Supp. 2d 488, 509 n.10 (E.D. Penn. 2006),

aff'd sub nom. Subclass 2 v. Melrose Hotel Co., 503 F.3d 339 (3d Cir. 2007); Universal Underwriters

Insurance Co. v. Lou Fusz Automotive Network, Inc., 401 F.3d 876, 881 (8th Cir. 2005) (holding

that fixed damages award provides incentive for private parties to enforce TCPA: "Whether we view

the fixed award as a liquidated sum for actual harm or an incentive for aggrieved parties to act as

private attorneys general, or both, it is clear that the fixed amount serves more than purely punitive



                                                  -39-
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or deterrent goals. Also, the fact that Congress elected to make treble damages available separate

from fixed damages strongly suggests that the fixed damages serve additional goals other than

deterrence and punishment"); Hooters of Augusta, Inc. v. American Global Insurance Co., 272 F.

Supp. 2d 1365, 1375-76 (S.D. Ga. 2003) (TCPA is a remedial statute, where it redresses harms to

individual fax machine owners who are harmed by the receipt of unsolicited advertisements, where

the damages issue to the individual and not to a third party, and where, although statutory damages

do not closely correspond to actual damages, this fact does not convert a remedial statute to a penal

one), aff'd, 157 Fed. Appx. 201 (11th Cir. 2005); Western Rim Investment Advisors, Inc. v. Gulf

Insurance Co., 269 F. Supp. 2d 836, 849 (N.D. Tex. 2003). But see Kruse v. McKenna, 178 P.3d

1198, 1200-01 (Colo. 2008) (holding that state law determines matter of assignability and further

holding that, under Colorado law, TCPA claims are penal and, therefore, not assignable, because the

TCPA created a new and distinct cause of action, the monetary recovery sought requires no proof

of actual damages, and any recovery exceeds any actual damages);12 Kaplan, 266 A.D.2d at 849, 698

N.Y.S.2d at 799 (TCPA's statutory damages provision is punitive rather than compensatory, where

the legislative history shows that the statute was intended to provide a remedy to consumers and to

encourage them to sue; statutory penalty provides incentive for consumers to enforce statute; penalty

need not be measured by actual loss incurred where it is imposed as a punishment for a violation).




       12
            But see United States Fax Law Center, Inc., 476 F.3d at 1120 (holding that TCPA claims

are not assignable under Colorado law because they are in the nature of personal-injury privacy

claims and declining to address whether TCPA claims are unassignable because they are penal).

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       In summary, we conclude that the TCPA is a remedial statute and, given that defendants have

not advanced an argument that claims under remedial statutes are unassignable, we decline to hold

that TCPA claims are not assignable by virtue of being remedial.

                   2. Whether the TCPA Claim Here is a Personal-Injury Claim

                                 and is, Therefore, Not Assignable

       Next, defendants argue that the TCPA claim, even if not penal, is not assignable. Defendants

address the trial court's rationale, where, relying on Valley Forge and Kleinwort, it found that TCPA

claims are assignable.

       In Kleinwort, Kleinwort sued Quantum and Quantum counterclaimed, asserting common-law

fraud and seeking punitive damages in connection with the sale of a brokerage firm. During the

pendency of the litigation, Quantum assigned its interest in the lawsuit to its two shareholders.

Kleinwort challenged the shareholders' standing to pursue the punitive damages claim. The supreme

court held that the assignees could recover punitive damages on the common-law fraud counterclaim.

Kleinwort, 181 Ill. 2d at 226. The court noted that, traditionally, courts examined the assignability

issue by considering whether the action would survive the death of the owner. Kleinwort, 181 Ill.

2d at 220. The supreme court rejected this approach, concluding that the "primary" consideration in

determining the assignability of causes of action is whether such assignments would violate public

policy. Kleinwort, 181 Ill. 2d at 224 ("[t]his court has held that a cause of action cannot be assigned

if such assignment violates public policy, even if such an action would otherwise survive the death

of the owner"). The court criticized the survival analogy, noting:

       "This court long ago used the survival analogy when considering whether a cause of action

       is assignable, not whether punitive damages standing alone are assignable. This court has



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       not applied the survival analogy to invalidate part of an assignment where the parties sought

       an assignment of the entire action." Kleinwort, 181 Ill. 2d at 224.

The court further noted that "assignability is the rule and nonassignability is the exception."

Kleinwort, 181 Ill. 2d at 225. It stated that, in Illinois, "the only causes of action that are not

assignable are torts for personal injuries and actions for other wrongs of a personal nature, such as

those that involve the reputation or feelings of the injured party." Kleinwort, 181 Ill. 2d at 225.

After further noting that the issue depends on the facts and circumstances of the case and that courts

apply a strict test in determining whether an assignment violates public policy, the court held that

allowing the assignees to seek punitive damages did not violate public policy. Kleinwort, 181 Ill.

2d at 226. The court found significant that the assignees were Quantum's shareholders at the time

of the alleged fraud, that one shareholder-assignee was intimately involved in the negotiations for

the purchase of an entity that served as the basis for the alleged fraud, that the assignees did not

"shop around" for the fraud claim, and that the same defendants would be involved regardless of the

assignment. Kleinwort, 181 Ill. 2d at 226-27.

       Defendants argue that Kleinwort is inapposite. They do not dispute that punitive damages

that are part of an underlying claim, which defendants refer to as "ancillary punitive damages," are

assignable. Instead, defendants urge that "independent statutory penalties," such as those under the

TCPA, are not assignable because they are personal to the injured party. In their view, a party's

actions underlying TCPA claims should constitute the sort of personal injury contemplated by

Kleinwort as being unassignable, and public policy concerns should act to bar Eclipse's alleged

assignment of its TCPA claim to Hinman.




                                                -42-
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        Italia Foods preliminarily responds that the assignment issue is of no import because the

statute of limitations has been tolled (a reference to the third certified question) in this case since the

filing of the initial complaint in June 2003. We reject Italia Foods' argument that, if we adopt their

tolling argument, we need not address the assignment issue. The status of Hinman as an assignee

of Eclipse's claim goes to his standing to bring suit. Standing, which is a jurisdictional requirement,

must be continuous throughout the suit. Eclipse Manufacturing Co. v. M&M Rental Center, Inc.,

521 F. Supp. 2d 739, 742 (N.D. Ill. 2007).

        Next, Italia Foods responds that defendants are incorrect as to the assignment issue. Italia

Foods relies on Kleinwort and the principle that corporations have the power to sell, convey, pledge,

lease, and otherwise dispose of their property and assets. See 805 ILCS 5/3.10 (West 2008) (listing

the general powers of a corporation); see also Grunloh v. Effingham Equity, Inc., 174 Ill. App. 3d

508, 518 (1998) ("it has long been recognized that corporations generally possess the power to assign

choses in action, provided the assignments are made for a legitimate corporate purpose and violate

no express restrictions in the corporate charter"). Italia Foods argues that, as in Kleinwort, Hinman

is not a stranger to the underlying claim, as he was the sole shareholder and president of Eclipse

when defendants sent the unsolicited fax advertisements that gave rise to the TCPA claim. Also, as

in Kleinwort, the "assignment" was the product of the sale of the corporation after litigation had

commenced. Thus, in Italia Foods' view, Eclipse's "assignment" of its TCPA claim to Hinman did

not violate public policy, because Hinman owned and ran Eclipse at the time the claim arose and was

intimately involved in it.

        In Valley Forge, upon which the trial court relied, the supreme court addressed whether

TCPA claims were covered by the advertising-injury provisions in commercial and general liability



                                                   -43-
No. 2--08--1148


insurance policies. The primary policy at issue defined an advertising injury as: " '[O]ral, written,

televised or videotaped publication of material that violates a person's right of privacy.' " Valley

Forge, 223 Ill. 2d at 364. The underlying complaint did not assert a common-law tort for invasion

of privacy, but asserted a TCPA claim. The court held that the insurer had a duty to defend the TCPA

claim under the policy's definition of advertising injury because the TCPA claim vindicated the same

injuries as a common-law action for violation of privacy. Valley Forge, 223 Ill. 2d at 365. The court

noted that the "receipt of an unsolicited fax advertisement implicates a person's right of privacy

insofar as it violates a person's seclusion, and such a violation is one of the injuries that a TCPA fax-

ad claim is intended to vindicate." Valley Forge, 223 Ill. 2d at 365 (citing "overwhelming" case

law). As to the specific policy language in the case, the court, relying on the dictionary definitions

of, inter alia, "right of privacy," further held that the terms refer to both an interest in seclusion and

an interest in the secrecy of personal information. Valley Forge, 223 Ill. 2d at 368. Accordingly, the

court concluded that unsolicited fax advertisements fall within the category of material that violates

a person's seclusion. Valley Forge, 223 Ill. 2d at 368. The court determined that, given its holding,

it did not need to reach the issue whether the insurers had a duty to defend their insured pursuant to

the policies' property-damage provisions. Valley Forge, 223 Ill. 2d at 379.

        We find Valley Forge distinguishable. That case involved advertising-injury provisions in

insurance policies held by an individual and not a corporation, and the court did not address

assignability. The court determined only that TCPA claims vindicate the same injuries as invasion-

of-privacy claims and, therefore, unsolicited fax advertisements implicate a person's right to privacy.

Valley Forge, 223 Ill. 2d at 365-68.




                                                  -44-
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       We find Eclipse instructive. In Eclipse, which involved the same plaintiffs as this case but

a different defendant, the court held that Hinman had standing as an assignee to pursue Eclipse's

TCPA claim and it granted Hinman's and Italia Foods' motion for leave to file a second amended

class action complaint naming them as plaintiffs. The court reviewed corporation law and noted

Kleinwort's statement that only torts for personal injuries and actions for other wrongs of a personal

nature are unassignable and noted that the relevant inquiry was whether TCPA claims are actions

for personal injuries. Eclipse, 521 F. Supp. 2d at 743. The court concluded that the TCPA is partly

intended to protect privacy interests. Eclipse, 521 F. Supp. 2d at 743. The court noted that a privacy

tort is a personal-injury action because the right protected is a personal right. Eclipse, 521 F. Supp.

2d at 743. However, the court also determined that a corporation "has no cause of action for

invasion of privacy other than intrusions upon the use of its own name or identity." Eclipse, 521 F.

Supp. 2d at 743. It held that corporations bringing TCPA claims may assert only the property

interests the TCPA was designed to protect and, therefore, their TCPA claims are assignable under

Illinois law. Eclipse, 521 F. Supp. 2d at 743-44; see also Kleinwort, 181 Ill. 2d at 225 (only torts

for personal injuries and actions for other wrongs of a personal nature are unassignable). The court

noted that Valley Forge did not foreclose the court's holding because that case did not reach the issue

whether a corporation had standing to assert privacy interests under the TCPA; rather, Valley Forge

involved an individual doing business as a private investigation business, and the supreme court's

holding was that TCPA claims implicate "a person's right to privacy" (emphasis added) (Valley

Forge, 223 Ill. 2d at 365). Eclipse, 521 F. Supp. 2d at 743-44.

       We conclude, as did the Eclipse court, that Eclipse could and did assign its TCPA claim to

Hinman. As the Kleinwort court noted, assignability is the rule, not the exception, and is determined



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primarily by considering public policy issues, not the survival analogy. Kleinwort, 181 Ill. 2d at 224-

25. Kleinwort also clearly states that the only unassignable claims are those involving personal-

injury torts and other claims asserting personal wrongs. Kleinwort, 181 Ill. 2d at 225. We find

persuasive the Eclipse court's analysis and its conclusion that corporations may assert in TCPA

claims only the property and not the privacy interests the TCPA was designed to protect. See

Eclipse, 521 F. Supp. 2d at 743-44; see also Resource Bankshares Corp. v. St. Paul Mercury

Insurance Co., 407 F.3d 631, 639 (4th Cir. 2005) ("Junk faxes cause some economic damage");

American States Insurance Co. v. Capital Associates of Jackson County, Inc., 392 F.3d 939, 943 (7th

Cir. 2004) (TCPA protects company's property rights in that it avoids consumption of the recipient's

ink and paper). Accordingly we conclude that a corporation's, like Eclipse's, TCPA claims are

assignable.

       In summary, we conclude that the TCPA claim here was properly assigned from Eclipse to

Hinman.13

                                       3. Statute of Limitations

       Because the TCPA claim in this case was assignable and, as we determine below, the

limitations period is measured to the initial filing of Eclipse's complaint in 2003, we conclude that

we need not address the question of the appropriate statute of limitations presented in this portion

of the second certified question.

       Whether the two-year or four-year limitations period applies need not be resolved. Eclipse

filed its initial complaint on June 13, 2003, and alleged that defendants sent it four unsolicited fax



       13
            In so concluding, we express no opinion herein on the meaning of "privacy" in the context

of insurance coverage law.

                                                 -46-
No. 2--08--1148


advertisements in July and August 2002, or about one year earlier. We disagree with defendants,

who assert without explanation that we must resolve the issue of the appropriate statute of limitations

and determine if the limitations period for the initial complaint goes back two years under section

13--202 of the Code of Civil Procedure to June 13, 2001, or four years under section 1658 of Title

28 of the United States Code to June 13, 1999. It is clear to us that, under either limitations period,

the complaint was timely filed.

                                         C. Tolling of Claim

       The third certified questions asks: "If the claim is not assignable, then should absent class

members' putative claims against defendants be treated as tolled when no class representative with

proper standing represented the putative class for a 27-month period?" Because we determined

above that the TCPA claim is assignable, we need not address the third certified question.

                                         IV. CONCLUSION

       For the foregoing reasons, we answer the first certified question in the negative. As to the

second certified question, we modify the first two parts of the question and conclude that the TCPA

claim here is remedial and assignable and, alternatively, that (whether or not it is remedial) it is

assignable because it does not constitute a personal-injury action. Further, we conclude that we need

not answer subsection (b) of the second certified question (concerning the appropriate statute of

limitations) and the third certified question. We remand the cause for further proceedings consistent

with this opinion.

       Certified questions answered; cause remanded.

       O'MALLEY and SCHOSTOK, JJ., concur.




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