G.M. Sign, Inc. v. Global Shop Solutions, Inc., No. 05 C 6591, 430 F. Supp. 2d 826 (N.D. Ill. May 9, 2006).

An indecisive CAFA defendant in a junk-faxing class action in the Northern District of Illinois recently got the clear message, “No Solicitation Allowed,” when it tried to remove the suit based on the Seventh Circuit’s now (in)famous Brill v. Countrywide decision.  No, the defendant was not torpedoed by “Big Brill’s” draconian “burden of proof” for CAFA removal.  That would be too obvious.  As odd as it may seem, the hapless defendant’s short visit to federal court was scuttled by “Little Brill,” the lower court decision reversed on appeal.

In this case, the plaintiff filed a class action in Illinois state court alleging that software developer Global Shop sent it one of 3,900 “junk fax” advertisements that bombarded Illinois residents, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA,” a/k/a the “Junk Fax Act”). The junk-faxing defendant was served with the state suit on September 2, 2005. 

Less than a week later, the federal district court for the Northern District of Illinois remanded a strikingly similar Junk Fax action, Brill v. Countrywide Home Loans, Inc., No. 05 C 2713, 2005 WL 2230193 (N.D. Ill. Sept. 8, 2005).   (Editors’ Note:  See the CAFA Law Blog analysis of Little Brill posted on October 22, 2005).  The “Little Brill” court candidly admitted that its remand order was based on the “somewhat unusual” conclusion that federal courts have no subject matter jurisdiction over private claims under the Junk Fax Act. Yet because “[t]he Seventh Circuit ha[d] not ruled on this issue,” the lower court decided to follow the holdings of “[s]ix courts of appeal and three judges in this district” that had considered the question.

 A week before “Little Brill,” Global Shop had been served with a state-court lawsuit that, on its face, satisfied CAFA’s minimal requirements for diversity jurisdiction, and also presented a colorable claim arising under the Junk Fax Act, which would ordinarily confer federal question jurisdiction.  Instead of promptly removing the action, the faint-hearted software developer went soft, and went nowhere, allowing the 30-day removal period to lapse.  Meanwhile, “Little Brill” was appealed to the Seventh Circuit.

On October 20, 2005, the Seventh Circuit released its “Big Brill” decision, reversing “Little Brill,” and holding that federal courts have both federal question and diversity jurisdiction over private TCPA claims.  (Editors’ Note:  See the CAFA Law Blog analysis of Big Brill posted on November 2, 2005).  In November 2005 — 80 days after service of the suit — the “uber spammer” finally removed the CAFA action to federal court, arguing that the Seventh Circuit’s “Big Brill” decision was an “order or other paper” from which it could first be ascertained that the case was removable, thereby triggering a new 30-day removal period under 28 U.S.C. § 1446(b). The plaintiff did what plaintiffs do, and moved to remand.

Defendant Junk Faxer’s tepid excuse for not initially removing the action rivaled the dubious “The dog ate my homework” plea of desperate schoolchildren facing the teacher’s wrath.  We paraphrase the whimpering defendant: “Gee whiz, Judge, naturally I thought that the other Judge’s decision in Brill was the established law in the Circuit. You know, Judge, when I was served, every TCPA decision coming out of the Northern District of Illinois said that state courts had exclusive jurisdiction over junk faxing suits. Even other Circuits agreed. It was the controlling law, you know. What was I supposed to do? If I had tried to remove, you’d have bawled me out, slapped me with bad-faith sanctions, and exiled me to state court with my faxes and tail between my legs. When the Seventh Circuit decided Brill, it changed the law so, naturally, I removed, because it was ‘other paper’.”   

The district court was singularly unimpressed with Junk Faxer’s sorry excuse for its indolence. Again, we paraphrase:   “Look, Mr. Junk Faxer, if you’d done your homework you’d have known that, in my Circuit, decisions of the district courts have about as much value as those junk faxes of yours. And this includes the opinions of my colleagues in the Northern District, which you mindlessly followed like a lemming hurling itself from a cliff into the sea. Second, when this suit was filed, no binding precedent kept you from removing. Third, I don’t give a flip what other Circuits have decided. When you were served, the issue whether federal courts can decide junk faxing claims was an open question in this Circuit. Sorry to say, Mr. Lemming, this law suit was initially removable and you bungled it. If ‘Big Brill’ is ‘other paper,’ then I’m Learned Hand.”

Perhaps, if the defendant had pulled itself away from the fax machine long enough to read the esteemed Judge Posner’s recent ruminations on the issue, it wouldn’t have pulled such an indefensible boner:  "As we have noted repeatedly, a district court decision. . . is not precedent.  It may be a wise, well-reasoned decision that persuades by the quality of its reasoning, but in that respect it is no different from a persuasive article or treatise. The fact of such a decision is not a reason for following it. . . . "  Midlock v. Apple Vacations West, Inc., No. 04-2615, 406 F.3d 453 (7th Cir. 2005).

As for the Junk Faxer’s backup excuse that the court would have slapped it with sanctions for bad-faith removal, the court had little sympathy.  Once more, we paraphrase: “Look, Mr. Junk Faxer, the defendants in ‘Little Brill’ timely removed without being sanctioned.  After remand, they appealed the order under CAFA’s provisions for appellate review.  In this particular instance, Mr. Lemming, perhaps you should have taken the plunge.”

We just can’t resist reminding the “Little Brill-creamed” defendant, “A Little Dab’ll Do Ya!”

The moral of the Junk Faxer’s saga is simple: With the enactment of CAFA, gone are the days of remand orders that are virtually unreviewable under Section 1447(d).  In the brave new world of CAFA removal, there is simply no place for wishy-washy defendants.  Emboldened defendants must do their homework, and take their best shot at removal, with the knowledge that an errant remand order can be reviewed on appeal.

As screen star Bette Davis once said (and we paraphrase): “Old age and CAFA removal ain’t for sissies!”