Alan S. Kaplinsky

Alan S. Kaplinsky

Ballard Spahr LLP

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Unaccepted Rule 68 Offer Does Not Moot Plaintiff's Claims, SCOTUS Rules

The U.S. Supreme Court has ruled that an unaccepted Rule 68 settlement offer does not moot a class action even when the offer would provide the named plaintiff with complete individual relief. The decision in Campbell-Ewald...more

1/28/2016 - Campbell Ewald v Gomez Class Action Class Representatives Mootness Rule 68 SCOTUS Settlement Offer TCPA

Tribally Affiliated Payday Lenders Can Use Tribal Sovereign Immunity as Defense to State Administrative Proceedings, Class Actions

Two recent decisions provide support for the use of tribal sovereign immunity by tribally affiliated payday lenders as a defense to both state administrative proceedings and private class actions. In Everette v. Joshua...more

12/18/2015 - Administrative Proceedings Class Action Payday Loans Sovereign Immunity Tribal Loans

New York Times article omits critical pro-arbitration facts

An article on consumer arbitration in this week’s Sunday New York Times concludes that “[b]y inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies… devised a way to...more

11/3/2015 - Arbitration Arbitration Agreements Banking Sector Banks CFPB Class Action Class Action Arbitration Waivers Consumer Financial Contracts Federal Arbitration Act Financial Institutions New York Times

Our thoughts on Director Cordray’s arbitration comments to the CFPB’s Consumer Advisory Board

In his remarks today to the CFPB’s Consumer Advisory Board, Director Cordray denigrated arbitration agreements as a “free pass” that allows companies to “sidestep the legal system, avoid big refunds, and continue to pursue...more

10/23/2015 - Arbitration Arbitration Agreements CFPB Class Action Class Action Arbitration Waivers Consumer Financial Products Financial Institutions

Responding to Professor Sovern: how Dodd-Frank Section 1028 limits the CFPB’s power to regulate arbitration agreements

In a blog post earlier this week, Professor Jeff Sovern took issue with statements made by a legal expert that suggest an amendment to the Federal Arbitration Act would be necessary for the CFPB to ban class action waivers in...more

10/23/2015 - American Bankers Association Arbitration Arbitration Agreements Banking Sector CFPB Class Action Class Action Arbitration Waivers Federal Arbitration Act Financial Institutions SBREFA

CFPB Proposes Ban on Class Action Waivers

Today, the CFPB announced at a field hearing in Denver, Colorado that it is considering proposing rules that would prohibit consumer financial services companies from using class action waivers in consumer arbitration...more

10/8/2015 - Arbitration CFPB Class Action Class Action Arbitration Waivers Financial Institutions Small Business

CFPB to Consumer Financial Services Companies: Prepare to Wave Goodbye to Class Action Waivers

The Consumer Financial Protection Bureau (CFPB) is considering proposing rules that would prohibit consumer financial services companies from using class action waivers in consumer arbitration clauses, the CFPB announced...more

10/8/2015 - Arbitration Agreements AT&T Mobility v Concepcion CFPB Class Action Class Action Arbitration Waivers Class Certification Consumer Financial Products Financial Institutions Mandatory Arbitration Clauses SCOTUS Small Business

Setting the Record Straighter

Recently, Professor Jeff Sovern sent an email to the editor of the Consumer Financial Services Law Report commenting on an article we published in the August 9, 2015 issue of the Report titled, “CFPB Makes Consumer...more

9/23/2015 - Arbitration CFPB Class Action Consumer Financial Contracts Financial Institutions Settlement

FCC Issues Citations for Violations of TCPA Consent Requirement for Autodialed or Prerecorded Telemarketing Calls

The Federal Communications Commission (FCC) recently issued citations to two companies charged with violating the Telephone Consumer Protection Act (TCPA) consent requirements for autodialed or prerecorded calls to wireless...more

9/21/2015 - Apple Pay Banking Sector Banks Cell Phones Class Action Disclosure Requirements FCC Online Banking Opt-Outs Prior Express Consent Right to Privacy Robocalling Smartphones TCPA Telecommunications Telemarketing

The Next EFTA Class Action Wave Has Started

A new type of Electronic Funds Transfer Act (EFTA) class action is now being filed in volume. This trend is highly likely to continue, as the cases are being filed by a consumer class action firm that has filed hundreds of...more

9/2/2015 - Banking Sector Banks Class Action Debit and Credit Card Transactions EFTA Financial Institutions TCPA Written Consent

Professor Sovern’s comments about CFPB arbitration study numbers don’t add up

In a recent blog post, Professor Jeff Sovern responded to our blog post indicating that the CFPB’s March 10, 2014 Arbitration Study strongly supports the industry’s view that consumers fare better in arbitration than...more

8/18/2015 - American Arbitration Association Arbitration CFPB Class Action Dispute Resolution Financial Institutions

California Supreme Court Upholds Arbitration Clause, but Unconscionability Remains a Defense to Arbitration

The California Supreme Court issued its long-awaited decision in Sanchez v. Valencia Holding Company, LLC, on August 3, 2015, reversing a finding by the Court of Appeal that an arbitration provision was unconscionable...more

8/12/2015 - Appeals Arbitration AT&T Mobility v Concepcion Best Practices CA Supreme Court Class Action CLRA Corporate Counsel Federal Arbitration Act Injunctive Relief Putative Class Actions SCOTUS Unconscionable Contracts

Pennsylvania County Recorder Cannot Sue MERS for Failure to Record Mortgage Assignments, Third Circuit Rules in Overturning...

The U.S. Court of Appeals for the Third Circuit has ruled that Pennsylvania’s recording statute does not require the recording of all conveyances. As a result, the Third Circuit reversed the district court’s refusal to enter...more

8/7/2015 - Banking Sector Banks Class Action Declaratory Judgments Deeds Financial Institutions Lenders MERS Mortgage Lenders Mortgages Recording Fees

To Stay or Not to Stay, That Is the Question Answered by the Second Circuit

Weighing in on an issue that has divided the federal courts of appeals, the Second Circuit has held that under the Federal Arbitration Act (FAA), a court that grants a motion to compel arbitration of all claims must stay the...more

8/3/2015 - Arbitration Article III Class Action Corporate Counsel Dispute Resolution Federal Arbitration Act Motion to Compel Stays

Eighth Circuit: Purpose, Not Content, Determines TCPA Coverage of Calls as “Telemarketing”

Phone calls made to promote a movie constituted “telemarketing” under the Telephone Consumer Protection Act (TCPA) even though the two prerecorded messages left on the plaintiffs’ home phone line made no reference to the...more

7/30/2015 - Article III Class Action Corporate Counsel Do Not Call List Popular Putative Class Actions Robocalling SCOTUS Spokeo Spokeo v Robins Standing TCPA Telemarketing

New empirical study of AAA arbitrations is a study in contradictions

A new empirical study of approximately 5,000 American Arbitration Association (AAA) consumer arbitrations conducted between 2009 and 2013 purports to find a “repeat player” effect favoring companies that previous researchers,...more

6/23/2015 - American Arbitration Association Arbitration CFPB Class Action

Supreme Court Ruling Could Alter Class Action Landscape

The U.S. Supreme Court has agreed to decide a case that could alter the landscape of federal class action litigation. Granting the defendant’s petition for certiorari in Campbell-Ewald Company v. Gomez, the Court will review...more

5/20/2015 - Article III Campbell Ewald v Gomez Class Action Mootness Rule 23 SCOTUS TCPA

U.S. Supreme Court Denies Challenge to California Decision that PAGA Claims Cannot be Waived in Arbitration Agreements

The U.S. Supreme Court recently denied a petition for certiorari that challenged a California Supreme Court decision carving out an exception to the federal high court’s recent holdings in AT&T Mobility LLC v. Concepcion and...more

2/11/2015 - American Express v Italian Colors Restaurant Arbitration AT&T Mobility v Concepcion Class Action Class Action Arbitration Waivers Federal Arbitration Act Iskanian v CLS Transportation PAGA Petition for Writ of Certiorari Preemption SCOTUS

Class Action Not Mooted by Unaccepted Rule 68 Offers of Judgment to Putative Class Representatives, 11th Circuit Holds

The U.S. Court of Appeals for the 11th Circuit recently held that a class action was not mooted by the unaccepted offers of judgment made by the defendant to each putative class representative in the full amount of his or her...more

12/9/2014 - Appeals Class Action Mootness Offer of Judgment Putative Class Actions Rule 68

Further Thoughts on the St. John’s Consumer Arbitration Study

Jeff Sovern, through his Consumer Law & Policy Blog, recently responded to our criticism that the St. John’s study didn’t include arbitration provisions with opt-out features. Jeff makes the point that since consumers don’t...more

11/18/2014 - Arbitration Arbitration Agreements Class Action Federal Arbitration Act Opt-Outs

Third Circuit Holds that Courts, Not Arbitrators, Should Rule on Classwide Arbitration

In Opalinski v. Robert Half International, Inc., the United States Court of Appeals for the Third Circuit held that where an arbitration clause is silent as to the availability of classwide arbitration, that issue should...more

8/6/2014 - Appeals Arbitration Arbitration Agreements Arbitrators Class Action Class Action Arbitration Waivers Employer Liability Issues FLSA Jurisdiction Robert Half

Supreme Court To Decide Evidentiary Requirements for Removal Notices in Class Actions

The U.S. Supreme Court has agreed to review the issue of what, if any, evidence a defendant must present in a notice of removal to remove a case to federal court based on the Class Action Fairness Act (CAFA). In granting the...more

4/9/2014 - CAFA Class Action Dart Cherokee Basin Operating Co. v. Owens Evidence Removal SCOTUS

State Attorney General Lawsuit Not Removable under CAFA, Supreme Court Holds

Resolving a conflict in the circuits, the U.S. Supreme Court has unanimously ruled that a parens patriae action brought by a state attorney general is not removable from state to federal court as a “mass action” under the...more

1/15/2014 - CAFA Class Action Parens Patriae Removal SCOTUS

Preliminary arbitration study results: is the Bureau keeping an open mind?

Following up on our earlier post, we have now had a chance to review the CFPB’s 168-page report containing some preliminary results of its consumer arbitration study. While we are encouraged that the Bureau recognizes the...more

12/16/2013 - Arbitration CFPB Class Action

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