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Court of Appeals for the Ninth Circuit Holds Plaintiff Need Not Prove Debt Collector Knew Debt Was Time-Barred When Collection Suit Filed, But Debt Collector Can Invoke Bona Fide Error Defense as to the Statute of Limitations

by Scott J. Hyman |

In Kaiser v. Cascade Capital, LLC, 2021 U.S. App. LEXIS 6754, the Ninth Circuit Court of Appeals reversed the ruling of the District Court for the District of Oregon that granted a motion to dismiss where the District Court reasoned the debt collector did not violate the FDCPA prohibitions on attempting to collect on a time barred debt because the… Read More

District Court (Cal.) Says Clicks and Pauses in One Call is Not Enough to Plead ATDS

by Scott J. Hyman |

In Hildre v. Heavy Hammer, No. 3:20-cv-00236-L-LL, 2021 U.S. Dist. LEXIS 35294 (S.D. Cal. Feb. 24, 2021), Judge Lorenz dismissed a TCPA claim. Here, Plaintiff received two calls from Defendants. (Compl. ¶¶ 15-16). The first call occurred on June 15, 2019. (Id. at ¶ 15). The second call occurred on December [*4]  3, 2019. (Id. at ¶ 16). Plaintiff alleges there… Read More

9th Cir. Says Arb. Clause Did Not Violate McGill Rule Because Consumer Can Get Public Injunctive Relief as an Individual in Arbitration

by Scott J. Hyman |

In DiCarlo v. MoneyLion, Inc., No. 20-55058, 2021 U.S. App. LEXIS 4817 (9th Cir. Feb. 19, 2021), the Court of Appeals for the 9th Circuit ordered a case to arbitration, finding that the arbitration clause did not violate the McGill rule. California's legal requirement that contracts allow public injunctive relief is known as the McGill rule. See McGill v. Citibank, N.A., 2… Read More

District Court (Cal.) Orders FCRA Claim Against Automobile Lender to Arbitration

by Scott J. Hyman |

In Camarillo v. Balboa Thrift & Loan Ass'n, No. 3:20-cv-00913-BEN-BLM, 2021 U.S. Dist. LEXIS 22351 (S.D. Cal. Feb. 4, 2021), Judge Benitez ordered an FCRA claim to arbitration. In the present case, Plaintiff never argues that the terms of the RISC were substantively or procedurally unconscionable. Reply at 13:11-12. To the extent she may try to advance such arguments now,… Read More

11th Cir. Declines Standing to Data Theft Victim

by Scott J. Hyman |

In Tsao v. Captiva MVP Rest. Partnres, Ltd. Liab. Co., No. 18-14959, 2021 U.S. App. LEXIS 3055 (11th Cir. Feb. 4, 2021), the Court of Appeals for the 11th Circuit held that a data theft victim had no Articile III standing. We begin with Tsao's theory that he has Article III standing because he faces a "substantial risk of identity… Read More

California Court of Appeal Holds Attorney Fees Incurred in Enforcing a Judgment May Be Recovered if the Judgment Includes an Award of Attorney Fees Pursuant to Contract

by Scott J. Hyman |

In Chunlei Guo v. Moorpark Recovery Services, 2021 Cal. App. LEXIS 112, the Court of Appeal of California, First Appellate District, Division Five reversed a postjudgment order denying attorney fees under California Code of Civil Procedure § 685.040, which authorizes the recovery of attorney fees incurred for enforcement of a judgment when the underlying judgment includes an award of attorney… Read More

Ambiguity in the Privacy Policy and Terms of Use Undermine Defendant’s Motion to Dismiss Based on Article III Standing. Without Sensitive Information at Issue, Plaintiff Cannot Move Forward With an Intrusion on Seclusion Claim.

by Scott J. Hyman |

On February 2, 2021, Judge Susan Van Keulen, in the Northern District of California, denied in part and granted in part Defendant's Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA). Evaluating Article III standing based on Plaintiff's consent to Defendant's online privacy policy and terms of use, the Court held that: [i]f “the contract language… Read More

District Court (Cal.) says Plaintiffs are Entitled to Discovery on German Defendant’s Claim re Lack of Personal Jurisdiction. Under a Negligence Claim, the Sensitive Nature of Data Held By A Dating App Carried Plaintiffs over the Pleading Threshold for a Duty of Care and the Fact that the Breach Occurred was Sufficient to Plead the Element of Breach.

by Scott J. Hyman |

On January 28, 2021, Judge Alsup, in the Northern District of California, denied in part and granted in part Defendants' Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA). Zoosk, a dating app, is a subsidiary of Spark.  Spark's principal place of business is in Berlin.  Spark filed a 12(b)(2) motion challenging the Court's personal… Read More

AB 335 – Proposed Amendment to the CCPA

by Scott J. Hyman |

On January 27, 2021, Assembly Member Boerner Horvath introduced AB 335 - California Consumer Privacy Act of 2018: vessel information. "Existing law, the California Consumer Privacy Act of 2018, grants a consumer various rights with regard to personal information relating to that consumer that is held by a business, including the right to direct a business not to sell, as… Read More

District Court (Cal.) Says Arbitration Clause in Automobile RISC Extends to FCRA Claims

by Scott J. Hyman |

In Camarillo v. Balboa Thrift & Loan Ass'n, No. 3:20-cv-00913-BEN-BLM, 2021 U.S. Dist. LEXIS 22351 (S.D. Cal. Feb. 4, 2021), Judge Benitez granted a petition to compel arbitration with respect to an FCRA claim arising out of an automobile RISC. In this case, neither party contends that (1) they lacked the capability to contract, (2) the RISC5 or Arbitration Provision… Read More

California DFPI Issues Invitation for Comments for CCFPL Rulemaking

by Scott J. Hyman |

On February 4, 2021, the California Department of Financial Protection and Innovation (formerly DBO) issued an invitation for comments from stakeholders for rulemaking under the California Consumer Financial Protection Law (CCFPL), which became effective January 1, 2021. As previously discussed, for “covered persons” the CCFPL includes a broad list of prohibited conduct, including engaging in “unlawful, unfair, deceptive, or abusive… Read More

California’s DFPI Begins to Use its New Powers and Hire New Staff

by Scott J. Hyman |

We previously posted about California’s new Department of Financial Protection and Innovation (“DFPI”) (formerly Department of Business Oversight) and some of its new powers to regulate debt collectors and other financial institutions under the Debt Collection Licensing Act and California Consumer Financial Protection Law (“CFPL”) (also known as the mini-CFPB). Both laws took effect on January 1, 2021. While the… Read More

District Court (Az.) Finds Dismissal of Case Against Auto Finance Lender Appropriate Where Plaintiff’s Claim Had “many hallmarks of the ‘sovereign citizen’ redemption theory”

by Scott J. Hyman |

In Pondexter v. Murrieta, No. CV-20-02124-PHX-DLR, 2021 U.S. Dist. LEXIS 10166 (D. Ariz. Jan. 20, 2021), Judge Reyes dismissed a case filed against an auto lender. This lawsuit stems from a retail installment sale contract ("RISC") for the purchase of a 2019 Mercedes (the "Mercedes"), entered into between Plaintiff and Autonation Chevrolet Arrowhead ("Autonation") on August 29, 2020. (Doc. 2-2… Read More

District Court (Wis.) Holds Credit-Card Company Properly Reported Post-Discharge Account

by Scott J. Hyman |

  In Ewert v. FD Holdings, LLC, No. 20-cv-354-wmc, 2021 U.S. Dist. LEXIS 9402 (W.D. Wis. Jan. 19, 2021), Judge Conley dismissed an FCRA claim premised on an account that passed through bankruptcy being improperly reported. Plaintiff Lance M. Ewert alleges that defendant FD Holdings, LLC, d/b/a "Factual Data," violated his rights under the Fair Credit Reporting Act, 15 U.S.C.… Read More

Court of Appeal (Cal.) Says CLRA Plaintiff Who Sought Injunctive Relief Only, and Disclaimed Prayer for Damages, in Order to Avoid CLRA 30-day Pre-Suit Notice Requirement Could Not Recover Attorneys’ Fees under CLRA Due to Absence of Damages

by Scott J. Hyman |

It’s a bit convoluted, but in Mikki v. Lifemark Grp., No. D076885, 2021 Cal. App. Unpub. LEXIS 309 (Jan. 20, 2021), the Court of Appeal, in an unpublished opinion, denied any attorneys’ fees to a CLRA Plaintiff.  The facts were as follows: Mikki's operative complaint sought solely injunctive relief under the CLRA. After accepting Lifemark's Code of Civil Procedure section… Read More

District Court (Cal.) Says CCPA Data Breach Claims Still Subject to Art. III Standing Requirements Where Information Obtained Lacks the Degree of Sensitivity Required by the Ninth Circuit to Establish Injury in Fact

by Scott J. Hyman |

On January 12, 2021, Judge David O. Carter granted Marriott’s Motion to Dismiss and dismissed the case, including Plaintiffs’ CCPA claim based on lack of standing.  Rahman v. Marriott International, Inc., et al.  (C.D. CA; 8:20-cv-00654), here, “Plaintiff alleges that class members were victims of a cybersecurity breach at Marriott when two employees of a Marriott franchise in Russia accessed… Read More

CFPB Issues Small Entity Compliance Guide for October 2020 Debt Collection Rule

by Scott J. Hyman |

On January 15, 2021, the Consumer Finance Protection Bureau (CFPB) issued a small entity compliance guide summarizing the October 2020 debt collection rule. The small entity compliance guide is available here. Earlier, the October 2020 debt collection rule amended Regulation F to implement most of the Fair Debt Collection Practices Act’s (FDCPA), including, among other things, communications in connection with… Read More

District Court (D.C.) Says Law Firm’s Investigation into Cybersecurity Breach Not Protected from Discovery by Privilege; Orders Production of Effect of Hack on Law Firm’s Other Clients

by Scott J. Hyman |

In Wengui v. Clark Hill, Civil Action No. 19-3195 (JEB), 2021 U.S. Dist. LEXIS 5395 (D.D.C. Jan. 12, 2021), Judge B0asberg ordered production of internal investigation reports regarding a cybersecurity breach, which were not protected by the attorney client or work product privileges. Malicious cyberattacks have unfortunately become a routine part of our modern digital world. So have the lawsuits… Read More

Court of Appeal (Cal.) Holds McGill Rule Bars Enforcement of Arbitration Clause for Automobile Title Loans

by Scott J. Hyman |

In Maldonado v. Fast Auto Loans, No. G058645, 2021 Cal. App. Unpub. LEXIS 138 (Jan. 11, 2021), the Court of Appeal in an unpublished decision found that an automobile title loan lender could not enforce its arbitration clause.  The trial court proceedings were as follows: Relevant to this appeal, paragraph 14(d) stated the parties must arbitrate any claim (with a… Read More

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