Consumer Protection Civil Procedure Constitutional Law

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DC Circuit Keeps Alive Bank’s Constitutional Challenge to CFPB’s Existence

Most constitutional challenges to agency action arise as a defense to an enforcement action. However, State National Bank of Big Spring, Texas (the “Bank”) has led a constitutional challenge to the very existence and...more

Data Breach Plaintiffs Bag a Win on Standing - Seventh Circuit Finds Against Neiman Marcus

In what is sure to be a widely cited data breach standing decision, the U.S. Court of Appeals for the Seventh Circuit found that increased risk of future harms from a data breach are sufficient to confer standing to sue upon...more

Remijas v. Neiman Marcus: Seventh Circuit Affords Broad Standing To Sue Over Consumer Data Breaches

When hackers breach a business’s systems, class actions are sure to follow. Often, however, these suits have faltered right out of the starting gate. Citing the Supreme Court’s 2013 decision in Clapper v. Amnesty...more

Are Aggregators of Government-Created Data the Next Target for Large Class Action Lawsuits?

There is little doubt that large class action lawsuits are a content aggregator’s worst nightmare. This especially holds true for those who transact significant amounts of data which may include government-created public...more

Viewing Unsolicited Fax Not Required for TCPA Standing

The Sixth Circuit recently held that standing to sue under the Telephone Consumer Protection Act (TCPA) does not require the plaintiff to have printed, or even viewed, a fax advertisement that violates the TCPA. The Court...more

First Challenge to July 2015 Declaratory Ruling Already Filed

While the July 10, 2015 Declaratory Ruling and Order was released after the close of business on Friday, one petitioner has already filed a petition for review of the Declaratory Ruling: ACA International (the Association of...more

Evening The Score On Off-Label Use Information

Two stories in 360 yesterday – the timing was pure coincidence – have us thinking again about the FDA’s muddled and increasingly untenable position on truthful off-label “promotion” – broadly defined as any accurate...more

8th Circuit Revives Dismissed TCPA Action

On June 8, 2015, the 8th Circuit reversed the Eastern District of Missouri and revived class claims in Golan et al. v. Veritas Entertainment, LLC et al. In Golan, the plaintiff alleged that the defendants—producers of the...more

Federal Judge Permits MPHJ’s Suit Challenging Vermont’s Bad Faith Patent Demand Letter Law To Proceed

We previously discussed the Vermont attorney general’s enforcement action against MPHJ Technology Investments, LLC, a non-practicing entity that has recently been the subject of regulatory scrutiny. The attorney general’s...more

Nevada Federal District Court Follows National Trend, Dismisses Data Breach Class Action for Lack of Standing

In granting a motion to dismiss a data breach putative class action lawsuit, the District of Nevada joined the majority of federal district courts in holding that plaintiffs whose personal information was stolen lack Article...more

Focus on Tax Controversy and Litigation - Supreme Court Decides Maryland v. Wynne and Rules that Maryland Tax Scheme Is...

In This Issue: - Maryland’s Tax Scheme Ruled Unconstitutional - “FTC Generator” Case Update - FSA Rules that Equitable Disgorgement May be Deductible Expense - District Court Upholds Attorney Client...more

Illinois Appellate Court Finds Non-Injured Plaintiffs Lack Standing To Pursue Claims For Technical Violations Of State Consumer...

In Maglio v. Advocate Health and Hosps. Corp., 2015 IL App (2d) 140782-U (Ill. App. Ct. June 2, 2015), the Illinois Appellate Court was asked to decide whether individuals have standing to bring suit for violations of...more

Home Depot Moves to Dismiss Consumer Data Breach Claims for Lack of Standing

Home Depot has staked its defense of consumer claims arising from the 2014 theft of payment card data from the home improvement retailer on the asserted absence of injuries sufficient to confer standing to sue. Because...more

Here to Stay? Appellate Court Rejects Challenges to CFPB

On May 1, 2015, the U.S. Court of Appeals for the D.C. Circuit rejected a constitutional challenge to the Consumer Financial Protection Bureau’s (CFPB’s) authority....more

Supreme Court Grants Cert In U.S. Navy Texting Suit

On May 18, 2015, the United States Supreme Court granted certiorari to consider the issue of whether a proposed class action is mooted when the named plaintiff receives an offer of complete relief on his claim. See...more

Call Answered: Supreme Court to Decide if Offer of Judgment Moots TCPA Class Action and Scope of Gov’t Contractor Liability

On May 18, the U.S. Supreme Court granted certiorari in Campbell-Ewald Co. v. Gomez, a Telephone Consumer Protection Act (TCPA) class action. The case raises two related questions that are the source of frequent litigation...more

Supreme Court to decide if a TCPA class action can be mooted by a pre-certification offer of judgment

Monday, the United States Supreme Court accepted certiorari to review the Ninth Circuit’s decision in Campbell-Eward Co. v. Gomez, 768 F.3d 871 (9th Cir. 2014), which involved a TCPA class action brought by the recipient of a...more

Federal Court Denies Certification, Declines To Infer A Lack of Consent From A Lack Of Documentary Evidence Of Consent

The Middle District of Florida recently denied class certification because the plaintiff failed to prove that consent (or more to the point, an alleged lack of consent) could be established on a classwide basis. In doing so,...more

Supreme Court to Decide Whether Offer of Judgment Can Moot TCPA Class

Deciding to step in to resolve a splint in the Circuits, the United States Supreme Court announced today that it granted a petition for a writ of certiorari in Campbell-Ewald Co. v. Gomez, No. 14-857. That means that the...more

U.S. Supreme Court to Use TCPA to Determine Power of Rule 68 Offers of Judgment

Three weeks ago, the U.S. Supreme Court raised eyebrows when it granted certiorari in Spokeo, Inc. v. Robins, — S.Ct. —, 2015 WL 1879778 (Apr. 27, 2015), where it appears the Court will decide whether a consumer has...more

Supreme Court Grants Certiorari To Resolve Circuit Split As Second Circuit Holds That Offer Of Judgment Can Moot Named Plaintiffs’...

As we noted a few months ago, several pending Circuit appeals and a pending petition for certiorari to the United States Supreme Court foreshadowed that clarity might be coming to the question whether an offer of complete...more

Tough Weeks for Morgan Drexen in CFPB Debt Relief Litigation

It’s been a rough couple of weeks for debt-relief services firm Morgan Drexen. You may recall our previous post about the CFPB’s action against Morgan Drexen in the Central District of California and the alleged antics that...more

SCOTUS to Consider Whether FCRA Violation Confers Article III Standing on Individual

On April 27, 2015 the Supreme Court of the United States granted certiorari on a petition filed by Spokeo, Inc., asking the court to review the Ninth Circuit opinion in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014). ...more

A Court in the Sunshine State Blocks Injunctive Relief against Neutrogena Sunscreen Claims; Meanwhile P&G Cannot Flush Claims for...

Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However,...more

Suit Challenging Constitutionality of CFPB Fails for Lack-of-Standing and Other Procedural Defects, D.C. Circuit Holds; Morgan...

Last week, in Morgan Drexen, Inc. v. Consumer Financial Protection Bureau, a divided panel of the D.C. Circuit Court of Appeals affirmed the dismissal of an action challenging the constitutionality of the CFPB. The court did...more

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