the next case on the agenda is number seven case number one one zero three five zero i tell you foods versus sun to hers mr richmond or what's commonly known as the t c p s a under supreme court will three away several of those issues of law were certified by the circuit court in lake county the second district accepted the petition under rule three zero eight the second district answered some of the questions but declined to answer some of the others there were three certified questions that in fact were answered by the second district in connection with the t c p s a one dealing with the so called op opt out acknowledgment approach of the t c p eight in the second district chose the acknowledgement approach in the certified question before the circuit an appellate court's accepted by this court is the issue of whether the opt in approach and or the chair king supreme court case of texas should be applied in this state the second certified question the second district addressed was the issue of the statutory paneling specifically under section two twenty seven b three of the t c in whether it constitutes a statutory penalty and of course we have this court's landis decision at least as a guide the third issue that the second district addressed is this question of assigned ability now you have to understand that the way that these sort of five questions that the circuit court judge hoffman directed here formulated is that you don't get to the assigned ability question or the statue of limitations or the tolling questions if you will unless you find the question of statutory penalty but the second district nonetheless did address the issue of assigned ability found that two twenty seven b three was not a statutory penalty and said it was were mediocre and then when i had to find it necessarily was assignable which makes sense because that's never really been our position there's no statutory final and it's going to be assignable especially under klein working all the cases with the court the second district did not address several certified questions one dealing with the issue of the statue of limitations under the t c p there's a whole slew of different cases fifty eight for years that was an address that was fully briefed that was argued in the second district it was argued in the circuit court but the appellate court chose not to address it again because it wasn't a statutory penalty so there was no need in the appellate court's mind address that particular issue last issue that was not addressed but was certified is this question of polling and again there's this issue of the twenty seven month gap in whether under there has to sit in the first district in whether under american pi there's allowance of tolling even when you have in this case twenty seven months where there is no proper plaintiff but of course you don't get to that issue again unless you find there's a statutory finally so as to the first issue in dealing with the  ph your honor is somewhat unique because we're dealing with a federal statute and acted by congress but it insistence confers upon the states the power to decide whether they want to enforce this statute or not now that the position of a number of course it has been addressed that share cain is some outlier there the supreme court of texas is the only one to have addressed this issue consistent with our position eleven be frank jerking is the only case out there that in fact says the opt in approach is the proper way you read to twenty seven b three but that this is the point of it that we tried to point out in our brief in that is that there were a number of circuit courts of appeals the second the fourth the ninth and even the seventh in the real case that suggest that read to twenty seven b three somewhat consistent with chair king don't quite go as far but what they give is the underlying premise that the states have such as all annoyed the state temple power to decide whether they want to opt in of this particular statute or not now that's important because the initial premise of chair king is that in fact the states have the ability to make that decision and you look at that from particular language of two twenty seven b three now normally it's true yeah the number of the cases of h states have concord jurisdiction with federal statutes that's not an issue here but when you have language such as this such as an express statutory director as pointed out in the cases such as the golf golf hall short case was u s supreme court when you have this express station tory directive there is a different analysis this is a unique stash your honor it's not entirely clear why congress exactly use this language i know people have looked at legislative history here and there but there isn't much pretty sparse but what is clear is that this particular statutory provision is nowhere else to be found tell you foods can find another one we can find another one the second district couldn't find the other one so this is a unique statute so the language used by congress must have some me something other then there's no question that the state courts have cancun jurisdiction in the eight dollars when approach that the second district adopted in the third no choice by the state of illinois or any other state who happens to take the same position that they can it dot the t c p a or not you look at the language if otherwise permit it well what chair came pretty much to it is that they went to the dictionary and kind of looked at the language with otherwise permitted would you agree though that it it would and we choose my words here it would seem a little odd that congress would create a private rate of action that might be brought in a state court but then leave it up might have a remedy you go to another state maybe you don't have a remedy how can that be congressional intent the argument that has been raised your honor is that with the language your father wise permit it we keep going back to that congress meant must have meant something different something unique and your honor to answer a question i do not believe and that's consistent with the fourth circuit case in international science that there was any intent by congress your honor to create a national  it happens to be trunk faxes if you will that's the purpose but i understand eleanor already has a statute on the books on the lot of states to the purpose of the t c p your honor was to supplement if you will the various state statutes  already existed in the problem at the time your honor back i think in one thousand nine hundred one when the statute was and was an act it was that if you had telemarketing going across state lines individual states couldn't regulate what was going on outside their border congress tried to fill in that interspecies and say we're going to supplement your in this your particular statutory scheme we have certain regulations we have the c p a and we're not trying to preempt you there's a specific provision says it's not pretty nothing in the states is preempted so the purpose was to supplement and consistent with that your honor the supplementation is to give the states a choice as to whether they want to enforce the act or not in the well what it means your honor is to states have a choice to adopt the statute or not if they have their own particular mechanism in they're happy with it fine if they want otherwise yes it means something different it means different means of a permit is consent approval you need some type of approval it would share king was focusing on your honor and the dictionary definition just looking at the words what they meant since they're somewhat unique since congress has never use it elsewhere is it must mean some type of affirmative action taken by a legislature in terms of the laws of a state and that affirmative action has to be taken temporarily one would think when you permit something it's before it happens in so the argument was that your needs to be some type of legislative action before you're going to if you could if so to speak adopt this particular statutory scheme that's really the simplicity of cha and there's been a lot of arguments that deal with things like the constitutional claims here in this through through with respect to the looking at the the i'd result here if we go with the approach which there are about seven states that have adopted that particular approach your honor basically says under the supremacy clause the states have absolutely no choice under the supremacy clause under article six you have to adopt in force the t c p ip ok if that were the case then what does the language of otherwise permitted by the laws of a state if congress wanted to in a normal situation say supremacy clause applies states you don't have a choice under the acknowledgment approach you must enforce the t c p ip why do you put that phrase there that's been the sixty four thousand hour question with all the courts around the country with the circuit courts and people come to different conclusions so your your honor's question also about the types of courts a lot of visions small claims things of that nature well one thing i think the t c p a did do is they left that up to the states for certain i don't think there's a dispute even under the opt in approach even if you look at the chair can't approach churching didn't sa congress is dictating the courts these cases must go to a particular court because if you look at two twenty seven b three they say bring an action an appropriate court of the state then you may bring it within wherever the court the particular courts of that state would put those types of cases and that's consistent with all federalism principles that your honor is clearly aware of that my able opponent has decided the holocaust the test case caplan going bad decades that the federal government finds the takes the state cases as they find them that's not really an issue here the issues the threshold issue is if congress men what someone would think they'd mean that something a little different here some kind of action must be taken than what they mean and in justice thomas approach your honor to have your question is the the problem the chair king pointed out and all these other circuit courts of appeals sure kane is not alone that i want to make that point in its analysis in its ultimate conclusion it's the only one that actually is held up in its analysis of giving the states for instance the state of illinois a choice one opt in or don't i that's a question that congress has to specifically given to the states and under the supremacy clause as we all know you must enforce the federal law as written in all share king did is they said well if we're going to force everything else in the statute we've got to enforce of otherwise permitted it's got to mean something in the acknowledgment republic pro choice makes that were done to makes meaningless because it reads it entirely out so the going again to the constitutional issues that were raised by the second district and by italian food the supremacy clause question is chair king pointed out you read the statute as it is and as written it says it's otherwise permitted and as to the tenth amendment that's been bandied about the tenth amendment and the interesting about thing about that your honor is that we have cited a number of cases from various circuits i think in the fourth from the ninth specifically that have essentially rejected the tenth amendment the second as well why because they can't it's the element of consent if there's one thing i want to bring across as a theme it's this consent component this i would submit consistent with the language consistent with the intent and purpose of the statute i would submit that if otherwise permitted must mean that there must be some type of ferment of action taken otherwise this language this essentially meaningless and congress would have said bring an action in any court and as we know if congress was silent and didn't mention state or federal there would still be concurrent jurisdiction and we wouldn't be making this argument today the last constitutional argument on this was the i would like constitution i know there was a lot of discussion of the bellville toyota case and respectfully your honor i don't believe that that applies here in there is no violation of the only constitution by way delayed and if you will whether it's subject matter jurisdiction or not is unclear from all the cases or whether it's simply a failure to state a cause of action but the point is that unlike belval we're not asking that somehow at the general assembly affect the subject matter of the circuit court here at all or limited as they didn't bellville with the i think the question here is whether in this case the particular remedy being sought under two twenty seven b three is a statutory finally a let's look at the language the language here is important under two hundred seventy three the in the applying that to no dispute about that the amount has to be pre determined by the legislature or congress no question about that five hundred bucks a shot ok predetermine here's the real issue is that under landis the third prong is all know what that means or receive five hundred dollars in damages whichever is greater now the score would not be alone in finding that in fact the five hundred dollar component is a statutory penalty number of courts have cited in our briefs colorado and new york that have addressed this issue i believe the supreme court of colorado in the cruise case addressed that issue but in fact analyze it similar to landis i'm not going to say the it's an identical approach but if you review the cases you'll see it's very similar to landis in terms of determining what the statutory penalty in reached the conclusion that well five hundred dollars it's definitely an automatic violation it's pre determined and you don't need actual damages that seems to be pretty clear here where the parties seem to differ is this question of well in landis there was an issue that it was the damages under the wheels it's going to the landlord tenant ordinance was in addition to rather than in lieu of as we have here or and that's where it seems to be the dispute between the parties now the point here your honor is whether you have a dollar fifty cents twenty cents or virtually nothing in terms of actual loss by the plaintiff or sending one fax one little fax through the mail just meet with a telephone you get five hundred bucks that's what congress decided these some of the cases such as the new york court of appeals in the kaplan decision said well it seems to be an incentive for a penalty because it has no relationship to the amount of real damages and it doesn't we all know that sending a fax and receiving a fax is use of a piece of paper use of some tone or maybe  pennies maybe it's a dollar so whatever it is congress decided that you have a choice here you can get your actual damages if you want or you can get five hundred dollars i see my time is up here thank rigged please the court counsel my name is mike reagan and i am one of the attorneys for the plaintiff to tell you foods here this morning illinois courts have jurisdiction to enforce the telephone consumer protection act without enabling legislation from the general assembly there's no doubt that a private cause of action was created and there's no doubt that it was intended by congress to be enforceable in state courts the only question here this morning on this is whether the remarkably unsuccessful idea advanced by defendants should be accepted require that the general simply take action before this federal right maybe enforcement only court defendant's proposition to you today and the only way in which it can succeed has been squarely rejected by twelve states of the district of columbia and of course your name was held below and defendants sole case chair king has been in existence for five years and argument and it is a three hour wait is not an academic exercise trial and up to this court to take its time but whether it stems from the appeal of an interlocutory order which is not otherwise appealable so really the question here is not whether the question should be asked in the abstract about whether illinois should be an opt in state but rather whether there is something under the law which would require reversal of the order regard the proper approach to be opt out in either circumstance the trial court ultimately gets affirmed in opt in does not really become an issue in the case there are a number of weaknesses in share king's logical structure its analysis most much of its discussion is premised upon the court's all of the conclusion at the outset that state action must be taken before the statute can be enforced so if you read the opinion carefully which i'm sure you will and he sort of begs the question by concluding that the language is clear and that there is a certain type of directive meeting it's all of that conclusion secondly the court places a lot of emphasis there on the redundancy would be under the knowledge would approach that the if otherwise permitted language which was the subject of several of your questions here is a statement an acknowledge which would otherwise preclude enforcement of a federal right so the first of the two redundancies this claimed by checking is that because that's the law but the moment that you say it in the statute that that becomes a redundancy there was no need to say what the law is and therefore there's your first redundancy secondly they say that the second redundancy is that the first half of this cited also said that this could have been a precautionary exercise on the part of their shoe griffin's training this could have been a precautionary exercise on the part of the congress to make sweeping policy analysis and i respectfully suggest that i think that would be at odds with the modulators approach which this court takes to the task of statutory interpretation the cherokee case talked about what it the law ought to be and what might have been on congress mind but i don't think this court would take that approach if the statute were not in big us and the texas court thought it to be plain then there is no room for policy analysis but in the event of an ambiguity the manner in which this court proceeds is to examined policy only in a narrow instant circumscribed way to determine what the words of the statute mean and not to go on to question is i mean both of those things are true you might you might have an odd result but if we were to focus on what's the source of the ambiguity i would say primarily it is driven by the words themselves but the c has said said early on and i think perhaps in one thousand nine hundred two that consumers may bring immediately a cause of action in state court and went on to discuss it in various other ways and so the considered and the f c c makes very plain as we've set out in the brief that it thought that consumers had a right to file these actions immediately it's also worth noting here that no state has ever opted out and it's hard to believe that the general assembly would want to do that here to restore the regime of junk faxes shirking to not pay sufficient attention to the federal and state constitutional concerns and didn't act in accord with the presumption under the tenth amendment state legislatures cannot be commanded to legislate one of the questions that was asked earlier is whether there was whether it makes sense to have differing rules  among the states legislative history here indicates this was a national problem resulting in a great deal of communication to the to the congress and the congress intended to do something about it mr richmond's right is it was necessary to do something about it because most and of these communications crossed state lines and the state is powerless to deal with those things and that's why congress had to step in and act  the presumption present spending time just simply reciting the constitutional provisions here and mr richmond and i agreed earlier there are so many issues in this case that any one of them could could occupy the times morning but let me let me drive by the constitutional considerations and touch briefly upon the presumptions that arise because of the various constitutional considerations here so the court was favor the construction it preserves state court jurisdiction because congress could be seen to divest sta only by explicit statutory provisions so the presumption is is that you have to have an explicit statutory provision before congress is seen as divest being the state courts of jurisdiction so if you determine ambiguity and if in the proverbial balancing of scales which has been done how many thousand times at this podium if there's only a little tip that's not enough because the presumption is there has to be an explicit direction from the congress in order to divest the state worker stiction only a neutral jurisdictional rule and this gets right to the heart of the if otherwise permitted language only a neutral jurisdictional rule will be deemed a valid excuse which is the words of the supreme court cases for departing from the default assumption that state courts have inherent authority to adjudicate claims arising under the laws of the united states and lastly i don't put a lot of weight necessarily and the phrasing of this is that there is a deeply rooted presumption and again borrowing that phrase from the federal cases in favor of concord state jurisdiction and we obviously there's a problem with my formulation there because it's not visit said there was a certain weakness in my raising that point but it is we get to the point there is this deeply rooted presumption that the state courts can enforce federal law and i was phrased in terms of  did here was to say that i'm sorry mr reagan yes i can back you have to question one yeah ok and this key phrase of otherwise permitted by law seems to me that not that you haven't argued this but one approach to analyze it is what does it mean it stated versus if the statute it said if permitted by state law if you focus on the word otherwise itself does that not mean things like something other than what the federal statute did meani is the state is the claim brought within the state statutes statue of limitation is it wrong with an eye rules of who has proper standing is it procedurally brought in the proper fashion those kinds of things yes yes i mean there could there could be a i think when mr richman gets back up he's going to say well it can only mean which court to go to but i don't think it's that i think that it is an attempt to wrap the congressional arms metaphorically around any number of possibilities  neutral rules of in ministration of the state courts and the principle here is that the congress takes the state courts as it finds them and so rather than  focusing only on one venue or something like that is simply whatever your rules might be throughout fifty states if they are neutral application then if i went that's the other if otherwise permitted me to just to follow up and maybe segue into your second argument on the question of the statute of limitations i'm not positive on this federal statute doesn't impose it does what does it or does it not establish the statue of limitations yet yes it does we believe strongly  urging there is a great deal of clarity and ease in this court's reaching the conclusion that the federal statute applies and it also is prefaced by similar language a little different but it says unless otherwise provided by law and then we have cited the jones case federal case which says that that phrase unless otherwise provided by law is to be narrowly interpreted and that is that the court is to reach out to  attempt to apply before your federal statute of limitations to into a federal act unless it is clearly provided to the country because doesn't a statutory claim versus a remedial one have a different statute under illinois so what the court did hear what the appellate court did was look to be the first part of question two and then what was specifically nominated as to weigh in says we don't forget her the court's exact words but it was basically  suggest in the limited time remaining that perhaps this case presents the occasion for this court to state that the public policy test of playing were benson vs quantum is the controlling test to determine whether a cause of action is assignable in my reading of the cases is that we are on that path and it would greatly clarify the law and under kleinwort assign ability is the rule in non assigned ability is the exception and then klein work with wants to say that in determining whether a particular assignment violates public policy courts applies strict test the power to invalidate any part of an agreement on the basis of public owsley is the use of sparingly which is i believe the basis of one of justice her miers coverage opinions and that the outcome depends on the particular facts and circumstances of each case so i suggest to the court that the rule coming out of this case ought to be that kleinwort slash public policy is the test and then the real test is looking at the facts of each case and at that point you don't have to get into assigning labels or intermediate categories of pretty penal personal things like that the facts of this case match in the public policy analysis or declared to be the sole test and i suggest it would be then this court doesn't have to take up the question of whether the t c p a has penal rather than remedial the only inquiry would be whether this is si and you don't have to reach the question whether it's a penal for any shoes here before you because it's not going to become relevant to assign ability under the client work test and it is not relevant to the statue of limitations if you take what i think is the best rule here which is to say that the federal statute of limitation lies so in either of those cases you simply don't reach the the question of you know versus reveal time's up  i think your honor of contrary to my able ever serious position is the issue of statutory penalty is crucial and that's how the sort of fight questions really were formulated when we did this number of years ago and to simply suggest that we don't have to deal with statutory penalty will reach all the other questions anyway such as kleinwort i'd suggest that's not exactly what the intent at least was of the sort of hard question certainly honors you have the power to do what you wanted with three away but to me the question if you look at the of five questions that has to be a sort of statutory penalty before you get to the next inquiries as i mentioned before let me address a couple of points made this issue of of course chair king being in the minority as i pointed out before yes it's the minority but as we've pointed out the fact that it's in the minority doesn't necessarily make it wrong in the fact that this in the minority doesn't necessarily mean that this court should carefully disregard it this court has taken minority positions on a whole slew of issues around the  country if we cited in our brief so that shouldn't be the touchstone of decision making if you don't add up who's who's right on the basis of who has more decisions around the states i would suggest than the other the issue of the acknowledgment approach as i think the  had with justice thomas a few moments ago i mean here's the point is that the if otherwise permitted language must mean something more than simply a stablish ing or reestablishing if you will settle decades of concordance or not concurrent of state court jurisdiction when sweyn congress is otherwise silent about what court you can be in if congress didn't have the if otherwise permitted language then there wouldn't be an issue here that the circuit courts of cook county unquestionably would have jurisdiction you know which of course is a different issue and congress doesn't get into determining which particular courts or which venue the issue is if otherwise permitted doesn't mean that there has to be some power or consensus justice thomas suggested something given to the states to make that decision which is consistent with the sparse legislative history that we have here then i would suggest that you're basically weeding out under settled principles of this court such as j p morgan that we've cited that you look at the dictionary definitions of these words each word must mean something and if you applied the acknowledgment approach as the second district did and they're not alone i understand that but the problem with redundancy that chair came talked about i would submit is an important position here to determine in the analysis now counsel talk about the presumptions yes the presumptions i mentioned those in my opening remarks you mention i'm all over the breach that's the golf offshore case from the u s supreme court test how well you got them all but it misses the point i think ably again this chair king points out that the fact is we have language here that does satisfied he express or in each stage will be the proper venue for such an action is this is a matter for state legislators to determine nevertheless it is my hope that states will make it easy as possible for consumers to bring in refer claims your honor and i understand you're out of position but what chair king did is that they look at that very language and the last phrase i think talking about the states will act reasonably in permitting the citizens to use the courts who a chair king interprete that the best that anybody can get into somebody's mind as to what you meant is that that was that phrase there you want it was consistent with the opt in approach that it is the whole it is the hope that the states will act reasonably in allowing their citizens to enforce the statute ok and the way sure came with that phrase that portion of senator hollings comments your honor was consistent with the position of chair caning that in fact that's consistent with the some type of consensual power the hope the anticipated hope of congress it's the states will act reasonably if it were just you don't have a choice you've got to win force the statute there would have been no need for any of this type of language that would have been no need for  otherwise permitted and frankly it would have been a very simple statute states you don't have a choice under the acknowledgment approach that's the problem respectfully with the acknowledgment approach is it just takes this language in essentially makes it as both parties seem talking whichever phrase you want to use and that's the reason you want it i submit the opt in approach with all of its ancillary cases from the various circuit courts of appeals that we've set forth that allow the statement this little arse statement passage if you will was a report was no regulation was just a couple step and says should be given very little if any deference why didn't address this issue it didn't address the decision it must be a reasoned decision from because from the courts that we've cited before any court decides to give deference to an administrative agency there's no reason given here therefore i understand what shirking decided it wasn't worth it wasn't worth the decision for discussion the deeply rooted presumption that council talks about is correct there is a deeply rooted presumption of state in federal jurisdiction you have week zero cases that now have state courts you have ninety three cases which they are state adjudicate federal claims none of those provisions have this language and that from the beginning in the end if there's one thing i want to make clear is that phrase must mean something it has to have an independent meeting otherwise i'm not certain why congress put it chair king at least gave a reasoned explanation the other circuit courts of appeal which should tell you food as i don't know if they've cited anything to the contrary have acknowledged that some form of consent by the states in order to activate the statute is necessary thank you thank you mr richmond thank you mr reagan for your arguments today case number one one zero three five zero gena number seven italian foods versus some two years now taken under advisement