Consumer Protection Civil Procedure General Business

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Should I Stay Or Should I Go? Second Circuit Holds That FAA Requires a Stay, Not Dismissal, Upon Successful Motion to Compel...

Many courts dismiss an action once they order the parties to arbitrate the dispute. And many of these courts do so even if one of the parties requests that the court stay the proceedings pending arbitration. The...more

Lead generator files petition to set aside CFPB CID

A lead generation company and its employee recently filed a petition with the CFPB to modify or set aside a civil investigative demand (CID). Among the arguments made in the petition for why the CID should be set aside is...more

Going to California: Court of Appeal Rules Forum Selection Clause Overrides Certification of B.C. Privacy Act Claims

The British Columbia Court of Appeal recently overturned the certification of a class action against Facebook Inc. in relation to alleged breaches of B.C.’s Privacy Act, involving unauthorized commercial use of users’ names...more

6 Record Search Lessons From $43M Clydesdale Bank Penalty

Clydesdale Bank PLC was recently hit with a more-than-$43 million fine, largely because it failed to search for documents that should have been subject to its destruction policy, and for misleading consumers and its...more

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

The Class Action Chronicle - Summer 2015

In This Issue: - The Fairness in Class Action Litigation Act of 2015 - Class Certification Decisions: ..Decisions Granting Motions to Strike/Dismiss Class Claims ..Decisions Denying Motions to...more

Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case

Through prior posts (see here, here, and here), we have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months...more

Second Circuit Declines To Allow National Bank Preemption by Assignee of National Bank

A national bank can charge an interest rate that exceeds state law maximums, but the bank’s assignee cannot, the U.S. Court of Appeals for the Second Circuit ruled recently, in a decision that could impact the ability of debt...more

Second Circuit Holds That National Bank Act Preemption Does Not Apply to an Independent, Third-Party Debt Collector That Purchased...

The Second Circuit recently issued a National Bank Act preemption decision with significant implications for purchasers of loans and other debt from national banks. See Madden v. Midland Funding, LLC, --- F.3d ---, 2015 WL...more

UTC Fire & Security Obtains Summary Judgment In Putative TCPA Class Action

The Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), prohibits initiating a telephone call using a prerecorded voice to wireless or residential telephone numbers unless the called party consents to receiving the...more

2nd Circuit Reinstates Consumer Class Action Against National Debt Buyer Through Preemption Decision

On May 22, the U.S. Court of Appeals for the Second Circuit ruled against a debt collection firm, holding that “non-national bank entities are not entitled to protections under the National Bank Act (“NBA”) from state-law...more

Second Circuit Ruling Undermines National Bank Act Preemption of State Usury Laws for Loans Transferred to Non-Banks

The U.S. Court of Appeals for the Second Circuit ruled last week that a purchaser of charged-off debts from a national bank was not entitled to assert the preemption of state usury laws available to national banks under...more

Wait A Minute, Mr. Postman: Tenth Circuit Applies Statutory-Violation Exclusion To Junk Fax Claims That Try To Skirt The TCPA

Enacted in 1991, the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), inaugurated the era of “junk fax” class actions, in which recipients of mass fax advertisements may pursue statutory damages of $500 per class...more

In Sprint Victory, Judge Posner and the Seventh Circuit Hold That Arbitration Is Required in a TCPA Class Action Even Though the...

On May 11, 2015, in an opinion written by Judge Posner, the Seventh Circuit reversed an order denying Sprint’s motion to compel arbitration in a class action allegation violations of the Telephone Consumer Protection Act...more

Fit to Be Tied: Appeals Court Redefines Tying Arrangements Based on Bundled Pricing

Corporate antitrust compliance programs often spotlight the dangers of tying arrangements. Those risks arise when a seller with a dominant position in one product coerces its customers by offering that must-have product only...more

New Washington State Data Breach Amendments Mandate Notice to Consumers Within 45 Days of Breach

On April 23, Gov. Jay Inslee signed amendments to Washington state’s data breach notification law. The amendments strengthen protections to consumers and mandate a new time frame and reporting requirements for alerting...more

Florida Court Recognizes Need To Show Prejudice To Establish Defense Of Failure Of Conditions Precedent Under Paragraph 22 Of The...

As part of its defense at trial in a foreclosure action, the defendants asserted that the plaintiff bank failed to satisfy the condition precedent of providing notice and an opportunity to cure before filing its complaint, as...more

California’s Song-Beverly “Consumer Perception Test” in Jeopardy — Will Retailers in California Be Barred from Requesting Any...

On May 5, 2015, the Ninth Circuit certified for the California Supreme Court the issue of whether the Song-Beverly Credit Card Act (“the Act”) prohibits retailers from requesting a customer’s personal information at the...more

Important Breaking Development: California’s Song-Beverly “Consumer Perception Test” in Jeopardy — Will Retailers in California Be...

On May 5, 2015, the Ninth Circuit certified for the California Supreme Court the issue of whether the Song-Beverly Credit Card Act (“the Act”) prohibits retailers from requesting a customer’s personal information at the...more

Two Out of Three Ain’t Bad: Kansas District Court Certifies Settlement Class and Grants Preliminary Approval but Rejects Notice by...

A boy fell through the vinyl guardrail his father installed on the second story deck of their home. After settling his son’s personal injury claims, the father sued Home Depot and the guardrail manufacturer on behalf of...more

Competition and Markets Authority to consider grocery pricing practices

The Which? super-complaint - On 21 April 2015, the Competition and Markets Authority (CMA) received a super-complaint from the consumer organisation Which? in respect of perceived concerns about misleading and opaque...more

UK Consumer Rights Act 2015

The Consumer Rights Act (“the 2015 Act”) received Royal Assent on 26 March 2015 and comes into force 1 October 2015. The 2015 Act aims to reform and consolidate eight pieces of legislation addressing consumer rights in the...more

ANZ Wins Appeal – Late Payment Fees Held to be Enforceable

In a significant decision in Paciocco v ANZ [2015] FCAFC 50 (Paciocco), the Full Court of the Federal Court of Australia (Full Court) has upheld an appeal by ANZ Bank (ANZ) and overturned a 2014 Federal Court of Australia...more

TCPA Connect - April 2015

User Choice to Send Solicitations Refutes ATDS Allegations - Following a growing precedent in the California federal district courts, a judge recently concluded that a defendant in a Telephone Consumer Protection Act...more

Locke Lord QuickStudy: Third Circuit Expands Reach of FDCPA in Kaymark Decision

Just last week, the Third Circuit held that a borrower can state a claim for violation of the Fair Debt Collection Practices Act (FDCPA) when a foreclosing plaintiff alleges incorrect fees as part of a foreclosure complaint. ...more

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