In Blair v. Rent-A-Center, Inc., No. 17-17221, 2019 U.S. App. LEXIS 19476 (9th Cir. June 28, 2019), the Court of Appeals for the 9th Circuit held that the F.A.A. does not pre-empt the California Supreme Court’s McGill decision. The Court of Appeals summarized its decision as follows: The panel affirmed the district court's denial of Rent-A-Center's motion to compel arbitration… Read More
In Sanchez v. U.S. Bank Nat'l Ass'n, No. 8:18-cv-00500-JLS-KS, 2019 U.S. Dist. LEXIS 108692 (C.D. Cal. June 27, 2019), Judge Staton denied an FCRA/CCRAA Plaintiff’s MSJ that proceeded on the claim that the Plaintiff’s father allegedly falsely took out credit on Plaintiff’s behalf. The facts were as follows: On August 22, 2015, an individual whom Plaintiff claims is his father,… Read More
In Picton v. Greenway Chrysler-Jeep-Dodge, No. 6:19-cv-196-Orl-31DCI, 2019 U.S. Dist. LEXIS 103796 (M.D. Fla. June 21, 2019), Judge Presnell allowed a TCPA claim to proceed based on “calls” placed by ringless technology. The So-called "ringless" voicemail technology allows advertisers to transmit recorded messages via the Internet directly to the voicemail box associated with a cellular telephone without causing the [*2] phone… Read More
In Bass v. Facebook, Inc., No. C 18-05982 WHA (JSC), 2019 U.S. Dist. LEXIS 104488 (N.D. Cal. June 21, 2019), Judge Alsup allowed a plaintiff to pursue Facebook for an ID Theft claim. The facts were as follows: "Access tokens" star in the instant data breach. When a Facebook user logs into Facebook with a specific username and password, that… Read More
In AFGE v. OPM (In re United States OPM Data Sec. Breach Litig.), Nos. 17-5217, 17-5232, 2019 U.S. App. LEXIS 18609 (D.C. Cir. June 21, 2019), the Court of Appeals for the DC Circuit held that ID theft victims represented by their Union had article III standing. The facts are rather dramatic. As its name suggests, the U.S. Office of… Read More
In Snow v. Ge, No. 5:18-CV-511-FL, 2019 U.S. Dist. LEXIS 99760 (E.D.N.C. June 14, 2019), Judge Flanagan dismissed a TCPA text message case. Although the Fourth Circuit and courts within this circuit have not addressed the split between these courts and Marks, the court finds the Dominguez approach better comports with the plain language of the statue. The statute unambiguously… Read More
As a reminder that the promises you make on your website must align with your data privacy practices,the FTC announced that it just reached reached a settlement with a background screening company over allegations it falsely claimed to be a participant in the EU-U.S. Privacy Shield program. In separate actions, the FTC also sent warning letters to more than a… Read More
In Duguid v. Facebook, Inc., No. 17-15320, 2019 U.S. App. LEXIS 17675 (9th Cir. June 13, 2019), the Court of Appeals for the Ninth Circuit again addressed its prior decision in Marks on the subject of what constitutes use of an ATDS under the TCPA. Ruling on an appeal from a motion to dismiss, the Ninth Circuit Court of Appeals… Read More
In Byrge v. R. Elliott Halsey & Halsey, No. 18 C 3267, 2019 U.S. Dist. LEXIS 98478 (N.D. Ill. June 12, 2019), Judge Korcoran declined to dismiss an FDCPA claim filed against the principal of a debt collection agency. The Defendants next argue that Halsey should be dismissed as a defendant because "he at all times operated as a professional… Read More
In Espejo v. Santander Consumer United States, No. 11 C 8987, 2019 U.S. Dist. LEXIS 98445 (N.D. Ill. June 12, 2019), Judge Kocoras denied an automobile finance company’s summary judgment on whether they used an ATDS. The facts were as follows: The underlying facts in this case are detailed in our prior opinion,1 and the Court provides only a brief… Read More
A copy of the Article is here. Hyman, S.J., and Mohseni, T., California Court of Appeal Finds that the FTC Holder Rule Limits a Holder's Liability for a Consumer's Attorneys Fees, 72 Conf. on Cons. Fin. L. Q. 432 (Spring 2019). Read More
The FTC called it the "butterfly phenomenon". But, this case is noteworthy not only because of the absence of a 'culture of privacy' that lead to the regulator's enforcement action, but because the FTC imposed a culture of privacy as part of resolving the case. How did it start? A DealerBuilt employee bought a storage device and installed it on the… Read More
In Zemelka v. Trans, No. CV-18-04179-PHX-SMB, 2019 U.S. Dist. LEXIS 91207 (D. Ariz. May 31, 2019), Judge Brnovich dismissed an FCRA claim against a CRA arising from bankruptcy reporting due to the absence of an inaccuracy. Plaintiff has two claims against Defendant Trans Union. The first is a clam under 15 U.S.C. §1681e(b) and the second under 15 U.S.C. §1681i.… Read More
In Nautilus Ins. Co. v. Mingione, No. G055914, 2019 Cal. App. Unpub. LEXIS 3759 (May 31, 2019), the Court of Appeal held in an unpublished case that Penal Code 632/637.2 claims were no excluded criminal acts and that the penalties available under those sections were covered damages. We agree with Mingione that public policy and the rules of insurance policy… Read More
In Lucoff v. Navient Sols., LLC, No. 18-60743-CIV, 2019 U.S. Dist. LEXIS 89879 (S.D. Fla. May 28, 2019), Judge McAlily found that a TCPA Plaintiff could not revoke contractually bargained for consent. The Eleventh Circuit has held that a consumer is "free to orally revoke any consent previously given" under the TCPA "in the absence of any [*11] contractual restriction to… Read More
In Kidd v. Thomson Reuters Corp., No. 17-3550, 2019 U.S. App. LEXIS 16091 (2d Cir. May 30, 2019), the Court of Appeals for the Second Circuit held that CLEAR was not subject to the FCRA because it required users to certify that the information provided would not be used for the purposes regulated by FCRA. At each gateway to the… Read More
In Mauthe v. Optum Inc., No. 18-2894, 2019 U.S. App. LEXIS 15742 (3d Cir. May 28, 2019), the Court of Appeals for the Third Circuit held that market surveys were not pretextual advertisements under the TCPA. Commercial entities conducting research sometimes do so by sending faxes. Under Mauthe's theory, these firms would violate TCPA's prohibition on the sending of an… Read More
In Eaton v. Midland Credit Mgmt., No. 16cv3025-MMA (MDD), 2019 U.S. Dist. LEXIS 82346 (S.D. Cal. May 15, 2019), Judge Anello held that TCPA/FDCPA claims survive a Plaintiff’s death. Additionally, the claims pleaded are not extinguished. Decedent asserted claims under the TCPA and FDCPA. See Doc. No. 1-1. The Ninth Circuit has recognized that claims under the [*3] FDCPA survive the… Read More
Tomorrow is the deadline for fiscal committees to report bills to the floor of the California legislative chambers. So, today, the Senate Appropriations Committee held a special hearing on all bills previously placed in the suspense file. For those following the CCPA, the focus was on SB 561 introduced by Senator Hannah-Beth Jackson (D – Santa Barbara), and co-authored by… Read More
In Cooper v. Atl. Credit & Fin., No. 2:18-cv-01254-JHE, 2019 U.S. Dist. LEXIS 79011, at *15-16 (N.D. Ala. May 10, 2019), Judge England held that the FDCPA's "catch-all" provision under 1692f has limitations where allegedly offending conduct is expressly permitted under another section of the FDCPA. While Cooper cites a few cases standing for the proposition that certain conduct may… Read More
