In Weisbein v. Allergan, Inc., No. SA CV 20-0801 FMO (ADSx), 2020 U.S. Dist. LEXIS 208813 (C.D. Cal. Nov. 6, 2020), Judge Olguin refused to stay a TCPA case. Here, the competing interests affected by the proposed stay weigh in favor of plaintiff. The stay requested by defendants is indefinite. Although the Supreme Court has set oral argument for Duguid… Read More
In Trujillo v. Free Energy Sav. Co., No. 5:19-cv-02072-MCS-SP, 2020 U.S. Dist. LEXIS 205113, at *4-7 (C.D. Cal. Nov. 2, 2020), Judge Scarci denied a request to stay a pending TCPA matter. The first factor weighs against granting a stay. Fact discovery is set to conclude in about six weeks, expert discovery is set to conclude in April 2021, and… Read More
In Layton v. Experian Info. Sols., Inc., No. 4:20-cv-00029-DN-PK, 2020 U.S. Dist. LEXIS 205221, at *2-3 (D. Utah Nov. 2, 2020), Judge Nuffer found no inaccuracy in the way that Discover was reporting the Plaintiff's bankrupt account. Layton sent a letter, certified, return receipt, to Experian disputing and requesting the above inaccurate information be removed as follows: "Immediately correct this… Read More
In Mercedes v. Nat'l Bus. Factors, No. 19-16055, 2020 U.S. App. LEXIS 35037, at *2-3 (9th Cir. Nov. 5, 2020), the Court of Appeals for the Ninth Circuit held that a debt collector does not discharge its FDCPA obligations and trigger the bona fide error defense by requiring its creditor/clients to give accurate information. In this appeal, we consider whether… Read More
In Yates v. Checkers Drive-in Rest., Inc., No. 17 C 9219, 2020 U.S. Dist. LEXIS 205241, at *8 (N.D. Ill. Nov. 3, 2020), Judge Harjani ordered class notice be given by text message in a TCPA class action. Defendants, on the other hand, contend that "providing notice via text would not be appropriate in this case, as it would potentially… Read More
In Rogoff v. Nat'l Credit Sys., No. 2:19-cv-01131-APG-NJK, 2020 U.S. Dist. LEXIS 204753, at *7-8 (D. Nev. Nov. 2, 2020), Judge Gordon denied a motion for judgment on the pleadings to a debt collector collecting apartment rent. Viewing the facts alleged in the light most favorable to Rogoff, the complaint adequately alleges a false representation of the amount of the… Read More
In Lembeck v. Arvest Cent. Mortg. Co., No. 20-cv-03277-VC, 2020 U.S. Dist. LEXIS 205511, at *1-5 (N.D. Cal. Nov. 3, 2020), Judge Chhabria denied a mortgage servicer's FRCP 12(b)(6) motion regarding the propriety of the servicer's charging the Plaintiffs an IVR fee to make their mortgage payments. Valerie Lembeck alleges that her mortgage servicer, Arvest Central Mortgage Company, violates California… Read More
In In re Sonic Corp. Customer Data Breach Litig. Fin. Insts., No. 1:17-md-02807-JSG, 2020 U.S. Dist. LEXIS 204169 (N.D. Ohio Nov. 2, 2020), Judge Gwin certified a data breach class. The facts were as follows: Between April 7, 2017, and October 28, 2017, hackers used malware installed on point-of-sale systems at 762 Sonic restaurants to steal sales transaction payment card… Read More
In Niedermeier v. Fca Us Llc, No. B293960, 2020 Cal. App. LEXIS 1035 (Ct. App. Oct. 30, 2020), the Court of Appeal reduced a plaintiff’s lemon law verdict by the value the Plaintiff received for trading in the vehicle. Defendant FCA US LLC, an automobile manufacturer,1 appeals from a judgment in favor of plaintiff Lisa Niedermeier. Plaintiff brought claims under… Read More
In Stover v. Experian Holdings, Inc., No. 19-55204, 2020 U.S. App. LEXIS 33176 (9th Cir. Oct. 21, 2020), the Court of Appeals for the Ninth Circuit affirmed a district court’s arbitration order. Rachel Stover appeals the district court's order compelling arbitration of her claims based on her purchase of the Experian Credit Score subscription service in 2014. Two versions of… Read More
In Pongsai v. Am. Express Co., No. SA CV 19-1628-DOC (JDEx), 2020 U.S. Dist. LEXIS 198104 (C.D. Cal. Oct. 23, 2020), Judge Carter denied MSJ to American Express due to a question of fact. Defendant argues that "only notice from a [consumer reporting agency] can trigger a furnisher's duty to investigation" under the FCRA. Defendant's Motion at 12. It contends… Read More
In Holly v. Alta Newport Hosp., Inc., No. 2:19-cv-07496-ODW (MRWx), 2020 U.S. Dist. LEXIS 195652 (C.D. Cal. Oct. 21, 2020), Judge Wright dismissed a data breach class action because the class representative could not demonstrate compensable loss. Holly alleges that she suffered "emotional harm and distress and has been injured in her mind and body." (SAC ¶ 49.) She also… Read More
In Nalan v. Access Fin., Inc., No. 5:20-cv-02785-EJD, 2020 U.S. Dist. LEXIS 198836 (N.D. Cal. Oct. 23, 2020), Judge Davila agreed to exercise supplemental jurisdiction over a counterclaim on the debt where the main action was a TCPA claim. The Ninth Circuit has not definitively ruled on the question of whether supplemental jurisdiction under § 1367 can cover permissive counterclaims.… Read More
The CFPB has issued its Final Debt Collection rule: https://www.consumerfinance.gov/policy-compliance/guidance/other-applicable-requirements/debt-collection/ The CFPB's Executive Summary is here: https://files.consumerfinance.gov/f/documents/cfpb_october_2020_debt_collection_executive_summary.pdf We are reviewing the new Final Rule, and will be publishing period updates. Stay tuned! Read More
The California Supreme Court denied review and declined to depublish the Court of Appeal's decision in Spikener. https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2322739&doc_no=S263361&request_token=NiIwLSEmXkg%2FWyBdSCJNSElIIDg0UDxTJSIuSzxTICAgCg%3D%3D Spikener held that the FTC Holder Rule pre-empted Civil Code section 1459.5, which legislatively sought to overrule the Lafferty decision's finding that the FTC Holder Rule capped attorneys' fees recoverable under the Rule. https://www.severson.com/consumer-finance/court-of-appeal-cal-says-legislative-effort-to-overrule-laffertys-cap-on-attorneys-fees-under-the-ftc-holder-rule-is-preempted/ Read More
Governor Newsom signed AB 3254, which, in addition to the requirements of Civil Code 1632, would require delivery of a translation to any other person who will be signing the contract or agreement and would make conforming and correctional changes with regard to the definition of “the party’s own interpreter” in reference to the exemptions described above. According to the… Read More
In In re Loucks, No. 20-42265, 2020 Bankr. LEXIS 2824 (Bankr. E.D. Mich. Oct. 9, 2020), Judge Tucker said that the bankruptcy code does not require, but merely permits, a vehicle finance company to repossess a vehicle or release its lien under a Chapter 13 plan. This case is before the Court on the motion filed by the Debtor on… Read More
In Aleisa v. Square, Inc., No. 20-cv-00806-EMC, 2020 U.S. Dist. LEXIS 188024 (N.D. Cal. Oct. 9, 2020), Judge Chen stayed an action pending SCOTUS’ review of what constitutes an ATDS. All three of the Landis factors weigh in favor of granting Square's motion to stay the proceedings pending the Supreme Court's forthcoming decision in Duguid II. First, and most importantly,… Read More
In Denton v. JPMorgan Chase & Co., No. 4:19cv114, 2020 U.S. Dist. LEXIS 185745 (E.D. Va. Oct. 6, 2020), Judge Davis allowed an FCRA to proceed due to Plaintiff’s allegation of emotional distress. Plaintiff's fourth count alleges that Chase violated 15 U.S.C. § 1681s-2(b) either willfully/recklessly or negligently by failing "to properly investigate Plaintiff's dispute" and failing "to correct the… Read More
In Foster v. Health Recovery Servs., No. 2:19-CV-4453, 2020 U.S. Dist. LEXIS 186508 (S.D. Ohio Oct. 7, 2020), Judge Marbley found that at least one claim of damages for a data breach victim satisfied Art. III standing. In a recent data breach case brought pursuant to the FCRA, the [*14] Third Circuit examined both the congressional judgment and common law factors… Read More
