Sara G. Birenbaum for the defendant.
SWAN, P.J. After Lisa Tabara (Tabara) was injured in a car accident, she treated with Advanced Spine Centers, Inc., d/b/a First Spine & Rehab (Advanced Spine), which in turn filed an application for G.L. c. 90, § 34A, personal injury protection (PIP) benefits with Arbella Mutual Insurance Company (Arbella). Arbella refused payment, and Advanced Spine brought suit on the PIP claim under G.L. c. 90, § 34M, as well as various consumer protection statutes. [Note 2] A jury found for Advanced Spine on the PIP claim, and the court added attorneys fees and entered judgment, from which Arbella has appealed. Arbella argues that the court erred in denying its trial motions for judgment and in receiving a copy of the PIP application and medical records into evidence. We address the two evidentiary matters first.
2. Medical records. To prove causation, the necessity of treatment, and the reasonableness of its bills, Advanced Spine offered an affidavit prepared pursuant to G.L. c.
233, § 79G (§ 79G), of one of its chiropractors, Dr. Stephanie Szenimiklosy Rittenour (Rittenour), attesting to attached bills, records, and reports of Advanced Spine and stating that the charges and services described in them were causally related to Tabaras accident on November 20, 2007. Arbella raised no challenge to the form of the documents or the notice under § 79G, which provides that such material subscribed and sworn to under the penalties of perjury by the physician . . . rendering such services [Note 3] is admissible if written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. All these requirements were met.
Arbella objected to the receipt of the § 79G document solely because the signature of Dr. Rittenour was a photocopy, not an original, and thus violative of the best evidence rule that where the contents of a document are to be proved, the party must either produce the original or show a sufficient excuse for its nonproduction.Commonwealth v. Ocasio, 434 Mass. 1 , 6 (2001); Mass. G. Evid. § 1004 (2015). Advanced Spines counsel persuasively argued at trial that [y]ou dont actually need the actual ink that was signed for compliance with § 79G. Counsel perhaps meant to suggest that the authenticity of the signature is not in itself a controlling issue for § 79G purposes, and thus an exception to the rule mandating production of an original. Mass. G. Evid., supra at § 1004(d). But, in any event, Dr. Rittenour herself was called as a defense witness for Arbella and testified that the signature was in fact hers. By introducing evidence after the denial of [its] motion for a directed verdict at the close of the plaintiffs case, as Arbella had, it waived [its] right to have the issue of sufficiency weighed solely on the basis of the plaintiffs evidence. Martin v. Hall, 369 Mass. 882 , 883-884 (1976). Given the renewal of the motion for a directed verdict at the close of [Arbellas] case, our review of the evidence encompasses that submitted in the course of [Arbellas] case. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link . . . . Id. at 885, quoting from Bogk v. Gassert, 149 U.S. 17, 23 (1893).McMahon v. Finlayson, 36 Mass. App. Ct. 371 , 374 n.6 (1994).
other ground. The § 79G material was properly received, any error having been cured by Dr. Rittenours testimonial recognition of her signature.
Mart Stores, Inc., 455 Mass. 91 , 94 n.5 (2009), quoting Tosti v. Ayik, 394 Mass. 482 , 494 (1985), S.C., 400 Mass. 224 (1987). To prevail on a PIP claim, Advanced Spines burden was to present evidence that (1) an accident occurred, (2) [Tabaras] injuries and [her] related treatment by [Advanced Spine] were causally related to the accident, (3) a Massachusetts automobile liability policy issued by Arbella and covering the vehicle involved in the accident was in effect on the accident date, and (4) there are unpaid amounts due to [Advanced Spine] for the treatment [it] provided.Provenzano v. Arbella Mut. Ins. Co., 2007 Mass. App. Div. 46 , 47.
The first element was easily met. The parties stipulated that an accident occurred on November 20, 2007.
As to causation, Advanced Spine offered the § 79G materials. The covering affidavit of Dr. Rittenour, discussed above, set forth her opinion that the attached records, reports, and bills reflected necessary treatment for Tabara, that the costs reflected therein were reasonable, and that Tabaras injuries were causally related to the accident. But an unusual twist transpired. In evidence were Superior Court pleadings filed in 2011 and 2012 alleging (and no more than alleging) that Tabara had been injured in a second accident on March 18, 2008, thirteen days before she began treatment with Advanced Spine on March 31. When Dr. Rittenour was called as a witness for Arbella and confronted with this evidence, she testified that she could no longer opine as to a causal connection between the treated injuries and the November accident and that, because of the alleged subsequent accident, she would not have signed the § 79G affidavit.
symptoms and complaints are causally related to the motor accident on 11/20/07. All these statements constituted, in terms of [§ 79G], the opinion of such physician . . . as to proximate cause of the condition so diagnosed, and were admissible. The date of the accident, the position of the insured, the description of what the vehicle impacted, and what happened to the insureds body during the accident, all contained in the chiropractors reports, were also admissible. They all entered into the chiropractors ultimate opinion as to whether the injuries presented to the chiropractor were the proximate result of the patients disclosures.Physical Rehabilitation Group, Inc. v. Arbella Mut. Ins. Co., 2012 Mass. App. Div. 119 , 123. The element of causality was satisfied. It thereafter was for the jury to determine the weight to be assigned to Dr. Szots opinion and Dr. Rittenours recantation.
As to coverage, a copy of the standard Massachusetts automobile insurance policy was in evidence. The third paragraph of Advanced Spines complaint alleged that Tabara was an occupant of a motor vehicle that was involved in an accident in Massachusetts and that the vehicle was insured by the defendant [i.e., by Arbella] by a Massachusetts Automobile Insurance Policy which provided Personal Injury Protection (PIP) benefits mandated by G.L. c. 90, § 34A. Arbella answered that it admits a Massachusetts motor vehicle policy of insurance was in effect covering a motor vehicle alleged to be involved in an accident relating to Lisa Tabara on the date alleged, but after reasonable inquiry the information known by the defendant is insufficient to allow it to either admit or deny the remaining allegations of this paragraph and calls upon the plaintiff to prove the same (emphasis added). Arbella argues that its answer constitutes a denial that it, Arbella, was the insurer. A common sense examination of the complaint and answer belies the assertion. In context, an admission to a Massachusetts motor vehicle policy of insurance [being] in effect answering the allegation that the vehicle was insured by the defendant by a Massachusetts Automobile Insurance Policy would appear to any discerning reader a concession of coverage. Arbella could have clearly and pointedly answered with a specific denial of, or lack of information to admit, coverage. Whether by inadvertence or design, it did not. Imprecise pleading, here by both parties, clouded but in the end compelled the conclusion that Arbella was admittedly the insurer of the vehicle.
The other elements are quickly addressed. Answering an interrogatory, Arbella agreed that it had not paid Advanced Spines bills. Answers to interrogatories, if properly admitted at trial, are evidentiary admissions that may be considered by the fact finder.Provenzano, supra at 48. And treatment records, which corresponded to the billing summary, contained certifications that they were for reasonable expenses for necessary medical treatment provided for Tabaras injuries. Scalia v. Liberty Mut. Ins. Co., 1995 Mass. App. Div. 69 , 71. In sum, as we stated in another case involving the same plaintiff, While the evidence presented by Advanced Spine was rather sparse, it did cover these elements.Advanced Spine Centers, Inc. v. Commerce Ins. Co., 2012 Mass. App. Div. 165 , 167.
instructions on evaluating evidentiary weight and the credibility of witnesses and documents. [Note 6] Buoniconti v. Lee, 234 Mass. 73 , 76 (1919) (It must be presumed the jury followed the instructions.); Sullivan v. Lowell & Dracut St. Ry. Co., 162 Mass. 536 , 538 (1895) (Ordinarily, it must be assumed that the jury follow the instructions which they receive.). Arbellas counsel expressed satisfaction with the charge. The motions for directed verdict and for judgment notwithstanding the verdict were properly denied.
[Note 2] The court found for Arbella on the consumer protection claims, G.L. c. 93, 93A, and 176D, and they are not the subject of this appeal.
[Note 4] Only one billing summary was attached, giving each date, description of service, and fee. This document itself was not certified, but each entry in it corresponded to the date or close to the date of a record of treatment that was certified.
[Note 6] While not mentioned by counsel at trial or on appeal, we observe that a number of the treatment records in the § 79G documents were certified with the signature SS, which could have been that of Susan Szot or of the recanting Dr. Rittenour subscribing as Stephanie Szenimiklosy, as her name sometimes appears in the records. Again, the significance of this circumstance was a factual issue for the jury to weigh.


COLLEGE SAVINGS BANK v. FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD ET AL.
An individual may sue a State where Congress has authorized such a suit in the exercise of its power to enforce the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427 U. S. 445, or where a State has waived its sovereign immunity by consenting to suit, Clark v. Barnard, 108 U. S. 436, 447-448. The Trademark Remedy Clarification Act (TRCA) subjects States to suits brought under § 43(a) of the Trademark Act of 1946 (Lanham Act) for false and misleading advertising. Petitioner markets and sells certificates of deposit designed to finance college costs. When respondent Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid), a Florida state entity, began its own tuition prepayment program, petitioner filed suit, alleging that Florida Prepaid violated § 43 by misrepresenting its own program. In granting Florida Prepaid's motion to dismiss on sovereign immunity grounds, the District Court rejected arguments made by petitioner and by the United States, which had intervened, that, under the constructive waiver doctrine of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184, Florida Prepaid waived its immunity by engaging in interstate marketing and administration of its program after the TRCA made clear that such activity would subject it to suit; and that Congress's abrogation of sovereign immunity in the TRCA was effective, since it was enacted to enforce the Fourteenth Amendment's Due Process Clause. The Third Circuit affirmed.
Held: The federal courts have no jurisdiction to entertain this suit because Florida's sovereign immunity was neither validly abrogated by the TRCA nor voluntarily waived. Pp. 672-691.
business interests qualifies as a protected property right. As to the first: The hallmark of a constitutionally protected property interest is the right to exclude others. The Lanham Act's false-advertising provisions bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentation concerning its own products intruded upon no interest over which petitioner had exclusive dominion. As to the second asserted property interest: While a business's assets are property, and any state taking of those assets is a "deprivation," business in the sense of the activity of doing business or of making a profit is not property at all-and it is only that which is impinged upon by a competitor's false advertising about its own product. Pp. 672-675.
(b) Florida's sovereign immunity was not voluntarily waived by its activities in interstate commerce. Generally, waiver occurs when a State voluntarily invokes, or clearly declares that it intends to submit itself to, the jurisdiction of the federal courts. Petitioner and the United States maintain that an implied or constructive waiver is possible when Congress provides unambiguously that a State will be subject to private suit if it engages in certain federally regulated conduct and the State voluntarily elects to engage in that conduct. They rely on this Court's decision in Parden, supra, which held that the Federal Employers' Liability Act authorized private suit against States operating railroads by virtue of its general provision permitting suit against common carriers engaged in interstate commerce. This Court has never applied Parden's holding to another statute, and in fact has narrowed the case in every subsequent opinion in which it has been under consideration. Even when supplemented by a requirement of unambiguous statement of congressional intent to subject the States to suit, Parden cannot be squared with this Court's cases requiring that a State's express waiver of sovereign immunity be unequivocal, see, e. g., Great Northern Life Ins. Co. v. Read, 322 U. S. 47, and is also inconsistent with the Court's recent decision in Seminole Tribe of Fla. v. Florida, 517 U. S. 44. Nor is it relevant that the asserted basis for constructive waiver is conduct by the State that is undertaken for profit, that is traditionally performed by private entities, and that otherwise resembles the behavior of market participants. Whatever may remain of this Court's decision in Parden is expressly overruled. Pp. 675-687.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 691. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 693.


Two mothers and their sons alleged that Internet gambling websites owe them the money that the men lost in gambling. An Illinois statute imposes criminal penalties on anyone who “knowingly establishes, maintains, or operates an Internet site that permits a person to play a game of chance or skill for money or other thing of value by means of the Internet or to make a wager upon the result of any [such] game,” 720 ILCS 5/28-1(a)(12) and “any person who knowingly permits any premises or property owned or occupied by him or under his control to be used as a gambling place.” It provides that “any person who by gambling shall lose to any other person, any sum of money or thing of value, amounting to the sum of $50 or more ... may sue for and recover ... in a civil action against the winner thereof.” The Seventh Circuit affirmed dismissal. The sons, who used the websites, failed to sue within six months of their losses. The government shut down the sites in 2011. The mothers, who never gambled on the sites, have timely claims, but the defendants are not the winners of any game that their sons played, but are the sites that hosted the gambling.
In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 15-1885, 15-1887 KELLY SONNENBERG, et al., Plaintiffs-Appellants, v. AMAYA GROUP HOLDINGS (IOM) LIMITED, formerly known as Oldford Group, Ltd., et al., Defendants-Appellees. ____________________ JUDY FARHNER, et al., Plaintiffs-Appellants, v. TILTWARE, LLC, et al., Defendants-Appellees. ____________________ Appeals from the United States District Court for the Southern District of Illinois, Nos. 3:13-cv-00227-DRH-SCW, 3:13-cv-00344-DRH-SCW — David R. Herndon, Judge. ____________________ ARGUED NOVEMBER 2, 2015— DECIDED JANUARY 15, 2016 ____________________ 2 Nos. 15-1885, 15-1887 Before BAUER, POSNER, and KANNE, Circuit Judges. POSNER, Circuit Judge. The four plaintiffs have filed between them two diversity suits, governed by the substantive law of Illinois, against a variety of persons and companies that host Internet gambling websites. They contend that the defendants owe them the money that two of the plaintiffs (Casey Sonnenberg and Daniel Fahrner) lost in gambling on the defendants’ websites. The district court granted the defendants’ motions to dismiss, precipitating these two appeals. Although both suits are in federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), the district judge had not yet decided whether to certify the classes when he dismissed the complaints, and no class-action issue is presented by the appeals. An Illinois statute imposes criminal penalties on anyone who “knowingly establishes, maintains, or operates an Internet site that permits a person to play a game of chance or skill for money or other thing of value by means of the Internet or to make a wager upon the result of any [such] game.” 720 ILCS 5/28-1(a)(12). It also punishes “any person who knowingly permits any premises or property owned or occupied by him or under his control to be used as a gambling place.” § 5/28-3. Another section, called the Illinois Loss Recovery Act, provides that “any person who by gambling shall lose to any other person, any sum of money or thing of value, amounting to the sum of $50 or more and shall pay or deliver the same or any part thereof, may sue for and recover the money or other thing of value, so lost and paid or delivered, in a civil action against the winner thereof.” § 5/28-8(a). The statute dates from an era of strong opposition in Illinois to gambling. See, e.g., Zellers v. White, 70 Nos. 15-1885, 15-1887 3 N.E. 669, 672 (Ill. 1904). That era has ended, and the laws are gradually being relaxed. See, e.g., 720 ILCS 5/28-1(b) (listing exceptions to the prohibition on gambling); Illinois Riverboat Gambling Act, 230 ILCS 10/1 et seq.; Illinois Video Gaming Act, 230 ILCS 40/1 et seq.; cf. GAMBLEONLINE.CO, “Illinois Online Gambling,” www.gambleonline.co/usa/illinois/ (visited January 15, 2016). Casey Sonnenberg and Daniel Fahrner claim that each lost $50 or more at Internet gambling sites operated by one or more of the defendants. But if a person entitled by § 5/288(a) to sue the winner has not done so within six months of losing, then by virtue of another section of the Loss Recovery Act “any person may initiate a civil action against the winner” to recover “triple the amount” of the gambler’s loss. § 5/28-8(b) (emphasis added). Though neither Kelly Sonnenberg nor Judy Fahrner, the other two plaintiffs (who happen to be the mothers of Casey and Daniel), lost money—indeed neither gambled at any of the defendants’ sites—they seek to recover triple their sons’ losses under the “any person [may sue the winner]” provision. The sons cannot sue because they admit in their complaints that they failed to sue within six months of the losses that they sustained in gambling on the defendants’ websites. They claim to have maintained accounts on the websites until 2011, the year the federal government shut down the sites (in April). But their lawsuits were not filed until July and August 2012—too late. See Bartlett v. Slusher, 74 N.E. 370, 372 (Ill. 1905); Kizer v. Walden, 65 N.E. 116, 117–18 (Ill. 1902); Holland v. Swain, 94 Ill. 154, 157 (1879). The mothers’ claims are timely. Their problem (which would equally beset their sons’ suits, were those suits not 4 Nos. 15-1885, 15-1887 time-barred) is that the defendants are not the winners of any game that any of the plaintiffs (or their sons) played. The defendants are the gambling sites, not the persons who won from Daniel and Casey in a game hosted by the site (and the mothers didn’t even gamble at any of the sites). A winner would be a person whom a player had played with and lost to. Ranney v. Flinn, 60 Ill. App. 104, 104 (1894); cf. Pearce v. Foote, 113 Ill. 228, 238 (1885); Reuter v. MasterCard Int’l, Inc., 921 N.E.2d 1205, 1214–16 (Ill. App. 2010). It’s true that the sites rake off some of the money in the pot, and it is this that causes the plaintiffs to call the sites “winners.” But charging a fee for engaging in gambling is not the same as winning a gamble; a croupier who supervises a casino’s poker game is not a gambler, let alone a winner. With some exceptions, such as playing blackjack or slot machines, the player in a casino (or its online equivalent) places the money he is betting in a (figurative) pot. The host takes a share of the pot to defray the expense of maintaining the gambling site but has no stake in the outcome of the games played on the site. Faced with this barrier to their claims under the Loss Recovery Act, the plaintiffs ask us to read a civil cause of action into the criminal provisions aimed at the owners and operators of illegal sites—a civil cause that would entitle the plaintiffs to damages measured by their losses. 720 ILCS 5/28-1, 5/28-3. This might seem a reasonable supplement to a mere misdemeanor punishment. But among other objections to the suggestion, only the first violation is a misdemeanor; a second, third, etc. is a felony, §§ 5/28-1(c), 5/28-3, and so a private right of action is not necessary to assure a reasonable degree of compliance with the statute. See Metzger v. DaRosa, 805 N.E.2d 1165, 1171 (Ill. 2004). Such a remedy would not Nos. 15-1885, 15-1887 5 be entirely superfluous, however. Even though the only loss of which the plaintiffs complain is a gambling loss that they could have recovered by suing the winner, a gambler would be reluctant to sue the winner if it were a friendly game. And hordes of new gamblers might be enticed to gambling websites if gamblers couldn’t lose any money there because the hosts of the websites would have to reimburse any losses they incurred. (In other words, heads I (the gambler) win, tails you (the host) lose.) The threat of having to reimburse all these eager gamblers-turned-plaintiffs could drive the gambling hosts out of business. But fortunately for the hosts, Illinois courts are reluctant to imply a private right of action in one section of a statute if other sections expressly create such rights. See, e.g., id. at 1172. There is no reason to depart from that approach in a case like this one where the statute already provides adequate enforcement mechanisms. The plaintiffs also invoke § 5/28-7, which declares gambling contracts null and void. But the plaintiffs have no contract with the defendants that they ask the court to void. Creating legal remedies for gambling losses as a way to discourage gambling seems a lost cause, since the usual gambling “loss” is not a real loss and hence is not a real spur to litigation unless the game is rigged. A gambler knows that the money he puts in the pot is at risk. It is not a risk he has to take; he takes it because he hopes to win the pot, or simply because he likes gambling or risk taking in general. If he loses $50 he may well say to himself “I’d rather have won, but $50 wasn’t too high a price to pay for a night of gambling, and en route to losing $50 I did after all win some nice pots and get compliments from the guys I was playing with.” 6 Nos. 15-1885, 15-1887 The judgment dismissing the suits is AFFIRMED.


Today the Supreme Court decided Reed Elsevier, Inc. v. Muchnick, a case regarding whether the registration requirement of 17 U.S.C. § 411(a) is jurisdictional or a claim processing rule. The Court held the requirement to be nonjurisdictional.
The case involves a class action for copyright infringement by freelance journalists based on republication of works in electronic databases that originally appeared in, for example, newspapers. Some members of the class had copyright registrations, some did not. Nevertheless, the district court certified the class and approved the proposed settlement agreement. The Second Circuit sua sponte raised the issue of jurisdiction, and eventually held the district court lacked jurisdiction to enter an order regarding the unregistered copyrights by virtue of § 411(a).
The Supreme Court disagreed, and held the registration requirement of § 411(a) did not prevent a court from entering an order affecting unregistered copyrights. Specifically, the Court held there was nothing in the statute that indicated Congress intended the requirement to be jurisdictional. Notably, the Court observed § 411(a) did not "clearly state" that its requirement was jurisdictional, and also explicitly permits claims involving unregistered works in certain circumstances. This was inconsistent with a jurisdictional requirement, and therefore the district court had jurisdiction to approve the settlement agreement even though it adjudicated claims for unregistered copyrights.
The Court left the question as to whether district courts should sua sponte dismiss copyright cases where the Plaintiff is asserting an unregistered copyright for another day.
The case involves a consolidation of four previous class actions stemming from freelance writers who contracted with publishers regarding print media, but retained the copyrights. The works were eventually published online and were also indexed and stored by electronic database services. The writers brought suit for violation of their copyright as 1) the original publishers did not contract for the electronic publication rights, and 2) the licenses obtained from the publishers by the database services were not valid as the publishers did not have the right to grant them.
The cases were stayed pending the result in Tasini; after that opinion was published, the parties began mediation. At mediation, the defendant's argued that there was no jurisdiction as 17 U.S.C. § 411(a) states that "no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title."
Notwithstanding the jurisdictional issue, the parties reached a settlement agreement that split the claimants into three groups. Category A consisted of the claimants that had registered their works before any infringement; these claimants were entitled to a flat fee. Category B consisted of claimants that had registered their works after infringement, but before the suit was filed; these claimants were entitled to the greater of a flat fee or a percentage of the original price of the work. Category C consisted of claimants that had either registered their works after the suit was filed or had not registered their works at all; this class was entitled to either a flat fee or a percentage of the original price of the work with the amount available to this category adjusted (potentially to zero) dependent on the availability of funds.
The settlement was presented to the court for class certification and settlement approval. While objections to the proposed settlement were filed by various Category C plaintiffs, the court approved the settlement. The objectors appealed. On appeal, The Category C claimants then appealed claiming that the settlement was inadequate and unfair because "they were paid little and singled out for reduction if the total claims exceeded $18 million." The defendants responded that the Category C claimants "were adequately represented and treated fairly because their claims were essentially worthless" due to the fact that they had not registered their copyrights. The Second Circuit raised the jurisdictional issue sua sponte, and vacated and remanded after finding that the court lacked jurisdiction to certify the class and approve the settlement.
At the Second Circuit, the panel majority first determined that the district court did not have jurisdiction over the claims for the unregistered works by holding that § 411(a)'s requirement of registration was jurisdictional. The majority first determined that the precedent of the circuit precluded a holding otherwise as the Second Circuit, as well as several other circuits, had previously upheld dismissals for lack of subject matter jurisdiction for failure to meet § 411(a). Second, the majority determined that Eberhart did not cast doubt on this precedent as Eberhart dealt with "a time limit for moving in a case that undoubtedly already falls within the district majority's subject matter jurisdiction" while "section 411(a) creates a statutory condition precedent to the suit itself." Given these considerations, the majority held that there was no subject matter jurisdiction over the claims.
The court then considered whether or not every member of the class had to meet the jurisdictional requirement. The majority noted that Rule 23 does not alter the subject matter jurisdiction of the district court. For example, in previous cases, all members of a class have been held to be required to meet Article III requirements, the amount-in-controversy requirement for diversity cases (until there was Congressional action to the contrary), and, if applicable, have exhausted their administrative remedies. Based on these cases, the court held that the registration requirement had to be met by every member of the class for there to be subject matter jurisdiction.
Finally, the court considered whether supplemental jurisdiction could cure the jurisdictional defects. The court noted that 28 U.S.C. § 1367(a) "excepts from its reach those cases in which another federal statute denies jurisdiction." Finding that § 411(a) denied federal courts jurisdiction over claims involving unregistered copyrights, the court concluded that there was no basis for jurisdiction and the class certification and settlement approval was therefore improper, as the district court lacked subject matter jurisdiction.
The dissent argued there was subject matter jurisdiction. The dissent would have held that § 411(a) is merely a "claim processing" requirement. In considering the statutory language, the dissent noted that § 411(a) does not speak in jurisdictional terms, as it was not a rights-creating statute but was merely an enforcement mechanism. Turning to the legislative history, the dissent noted that the House Report on the bill explicitly stated that "registration is not a condition of copyright protection." Then the court noted that there are multiple jurisdictionally recognized exceptions to § 411(a) including that "courts routinely permit plaintiffs to file suit before applying for a copyright or while the Copyright Office is considering their application," which was inconsistent with the rule that "the jurisdiction of the court depends upon the state of things at the time of the action brought." Finally, the dissent noted that the explicit exception of foreign works showed flexibility inconsistent with § 411(a) being a jurisdictional statute.
The Supreme Court granted certiorari on March 2, 2009 limited to the jurisdictional issue, and the Court held oral argument on October 7, 2009.