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11th Cir. Finds EFTA Violation Despite Credit Union’s Use of Model Form

by Scott J. Hyman |

In Tims v. Lge Cmty. Credit Union, No. 17-14968, 2019 U.S. App. LEXIS 25731, at *2-8 (11th Cir. Aug. 27, 2019), the Court of Appeals for the Eleventh Circuit found an EFTA violation based on an ambiguous opt-in notice and the Credit Union's practice of applying an "available balance" method rather than a "ledger" method. The facts were as follows:… Read More

District Court (Cal.) Says Arbitration Clause’s Prohibition Against Class Action Did Not Bar Claims For Injunctive Relief In Any Forum Because a Claim for Public Injunctive Relief Is Not A “Class Action”

by Scott J. Hyman |

In Ionescu v. Extra Space Storage, No. 19-cv-02226-YGR, 2019 U.S. Dist. LEXIS 143992, at *1-2 (N.D. Cal. Aug. 23, 2019), Judge Gonzalez-Rogers ordered a claim to arbitration. The facts were as follows: Plaintiffs Alexandru Ionescu, Lenay Johnson, and Lamar Mosley bring this putative class-action law suit against defendant Extra Space Storage Inc. ("Extra Space") for false advertising in violation of… Read More

District Court (Cal.) Says Class Claims Plead Non-Arbitratable Claims for “Public Injunctive Relief”, but Such Claims Should Be Stayed Pending Outcome of Arbitration of Individual Claims.

by Scott J. Hyman |

In Eiess v. Usaa Fed. Sav. Bank, No. 19-cv-00108-EMC, 2019 U.S. Dist. LEXIS 144026, at *2-4 (N.D. Cal. Aug. 23, 2019), Judge Chen ordered a class action plaintiff's individual claim to arbitration, and stayed the claim for public injunctive relief pending the outcome of Plaintiff's individual claim. The facts were as follows: Ms. Eiess is a customer of USAA and… Read More

District Court (Md.) Says Oral Opposition from Debtor During Repossession Can Constitute “Breach of the Peace”

by Scott J. Hyman |

In Darren Trucking Co. v. Paccar Fin. Corp., No. GJH-18-3936, 2019 U.S. Dist. LEXIS 141666, at *4-6 (D. Md. Aug. 20, 2019), Judge Hazel allowed a breach of the peace claim to proceed against a finance company. Generally, "[t]he debtor's opposition, however slight and even if merely oral, normally makes any entry or seizure a breach of the peace." See… Read More

District Court (Iowa) Says Floorplan Lender Defeats Counter-Claims

by Scott J. Hyman |

In Wester Americredit Fin. Servs. v. Adams Motor Co., No. C18-4067-LTS, 2019 U.S. Dist. LEXIS 141889, at *2-5 (N.D. Iowa Aug. 20, 2019), the District Court threw out counter-claims filed against a floorplan lender.  The facts were not atypical: GM Financial acted as AMC's floorplan lender and entered into a term loan and revolving line of credit with AMC on… Read More

California New Car Dealers’ Association Challenges OEM Subscription Service

by Austin B. Kenney |

The California New Car Dealers' Association has challenged Volvo’s OEM subscription service.  Here are links to the Petition (http://www.informz.net/impexium-cncda/data/images/2019-1-15%20CNCDA%20Petition%20re%20Care%20by%20Volvo.pdf) and to the recent Press Release from the CNCDA (https://www.cncda.org/news/california-new-car-dealers-unanimously-granted-dmv-investigation-sought-in-volvo-petition/).    Severson continues to monitor such alternative finance and ownership arrangements for the industry.     Read More

District Court (Cal.) Says TCPA Affords No Right to Attorneys’ Fees: Says Nationwide Class Allegations Survive Bristol-Myers

by Scott J. Hyman |

In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2019 U.S. Dist. LEXIS 141400 (N.D. Cal. Aug. 20, 2019), Judge Spero confirmed that the TCPA affords no right to attorneys fees. It is undisputed that attorneys' fees are unavailable under the TCPA and Plaintiff has pointed to no source of authority that would allow him to recover attorneys' fees in this action.… Read More

District Court (Cal.) Says Debt Collector Can Use Reasonable Policies and Procedures Defense to Establish that It Did Not Receive Debtor’s Dispute Letter

by Scott J. Hyman |

In Williams v. Enhanced Recovery Co., LLC, No. 18-cv-03699-HSG, 2019 U.S. Dist. LEXIS 137631 (N.D. Cal. Aug. 14, 2019), Judge Gilliam granted summary judgment to a debt collector. The Court finds that ERC has carried its burden to establish an entitlement to the bona fide error defense, and the Court thus does not consider whether there is a material dispute… Read More

District Court (Cal.) Says Stop Payment Fees Do Not Violate EFTA

by Scott J. Hyman |

In Foreman v. Bank of Am., N.A., No. 18-cv-01375-BLF, 2019 U.S. Dist. LEXIS 136743 (N.D. Cal. Aug. 13, 2019), Judge Freeman addressed the propriety of a “stop payment” fee imposed by a bank on a consumer who wishes to stop EFT payments. This case involves a consumer's right to authorize his bank to transfer funds electronically to third parties through… Read More

Severson & Werson Moderates Panel of Experts on the California Consumer Privacy Act (CCPA)

by Scott J. Hyman |

Severson's own Joseph Guzzetta will moderate a panel of experts for The Rutter Group on the California Consumer Privacy Act.  The panel will consist of Mr. Guzzetta of the Firm's San Francisco office, Payal Mehra, the Senior Director of Privacy of RingCentral; and Rick Arney, Boardmember of Californians for Consumer Privacy and co-Author of the California Consumer Privacy Act.  A… Read More

3rd Cir. Extends Douglass “Glassine Window” FDCPA Case to QR Codes on the Outside of Envelopes

by Scott J. Hyman |

In DiNaples v. MRS BPO, LLC, No. 18-2972, 2019 U.S. App. LEXIS 23937 (3d Cir. Aug. 12, 2019), the Court of Appeals extended its Douglass decision to QR codes. There is no dispute that that provision plainly prohibits the QR code. Still, as other courts have observed, § 1692f(8) is rather expansive when read literally. It would seemingly prohibit including… Read More

Court of Appeal (Wash.) Says Car Dealer May Have Misrepresented Downpayment to Car Buyer

by Scott J. Hyman |

In Fay v. Showcase Motors, No. 78111-1-I, 2019 Wash. App. LEXIS 2074 (Ct. App. Aug. 12, 2019), the Washington Court of Appeal found that the trial court erred in granted summary judgment to a car dealer on a consumer’s claim that the dealer misrepresented the down payment required to purchase a Shelby Mustang. We conclude the trial court erred in… Read More

District Court (Ill.) Says Where a Caller Manually Dials from a Keypad, It’s Not an ATDS

by Scott J. Hyman |

In Gentleman v. Massachussetts Higher Educ. Assistance Corp., No. 16-cv-03096, 2019 U.S. Dist. LEXIS 135684 (N.D. Ill. Aug. 12, 2019), Judge Coleman granted summary judgment against a TCPA plaintiff because calls were not placed using an ATDS. Delta contends that summary judgment in their favor is warranted because there is no evidence to establish that Delta used an automatic telephone… Read More

7th Cir. Says Debt Collector’s E-mail Communications Were Not “Communications” Because “Private” E-mails Were Merely Gateways to an Extended Process that Ended in the Relevant Message

by Scott J. Hyman |

It seems like an argument down the rabbit hole, but in Lavallee v. Med-1 Sols., LLC, No. 17-3244, 2019 U.S. App. LEXIS 23664, at *11-15 (7th Cir. Aug. 8, 2019), the Court of Appeal found that privately-linked debt collection e-mails were not collection communications, disagreeing with the debt collector's argument that its e-mails were, in fact, collection communications.   Huh? Everyone… Read More

District Court (Cal.) Says California’s Data Breach Statute’s Element of “Failing to Implement Reasonable Security Procedures and Practices” Cannot Be Generally Pleaded

by Scott J. Hyman |

In Anderson v. Kimpton Hotel & Rest. Grp., LLC, No. 19-cv-01860-MMC, 2019 U.S. Dist. LEXIS 133869, at *13-14 (N.D. Cal. Aug. 8, 2019), Judge Chesney dismissed a data breach claim under California's data breach statute, Civil Code 1798.81.5.  The facts were as follows: In their complaint, plaintiffs [*2]  allege "Kimpton uses an online reservation system that facilitates the booking of hotel… Read More

District Court (Fla.) Says A TCPA Plaintiff Could Not Revoke Consent Where Consent Was Given As Part of Bargained-For Exchange

by Scott J. Hyman |

In Lucoff v. Solutions, No. 18-CIV-60743-RAR, 2019 U.S. Dist. LEXIS 133577 (S.D. Fla. Aug. 7, 2019), Judge Ruiz granted summary judgment against a TCPA Plaintiff. Because the Arthur Settlement places contractual restrictions on revocation, Plaintiff's reliance on Osorio is erroneous. In Osorio, the court determined that consumers were "free to orally revoke any consent previously given" only "in the absence… Read More

District Court (Pa.) Says Predictive Dialers Are Not ATDSs under the TCPA

by Scott J. Hyman |

In Smith v. Navient Sols., LLC, No. 3:17-191, 2019 U.S. Dist. LEXIS 131231 (W.D. Pa. Aug. 4, 2019), Judge Gibson granted summary judgment against a TCPA plaintiff. The Court agrees with the reasoning in these cases. Predictive dialers do not necessarily qualify as ATDSs under the plain language of the statute or the Third Circuit's guidance in Dominguez. To reiterate,… Read More

District Court (Cal.) Certifies TCPA Class

by Scott J. Hyman |

In Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 2, 2019), Judge Hayes certified a TCPA class. Under the TCPA, each plaintiff was injured when an autodialed or prerecorded call was sent to their wireless or residential phone. Whether the autodialed or prerecorded call came from a device located in the offices… Read More

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