In Makaron v. Enagic USA, Inc., 2018 WL 1311400, at *2 (C.D.Cal., 2018), Judge Pregerson certified a TCPA class against a telemarketer, finding that class-certification was not the time to determine whether an ATDS was used and that administrative feasibility is not a prerequisite to class certification. As an initial matter, the court observes that Defendant devotes a substantial portion of… Read More
Readers know that we've complained about this before -- that Courts apply different standards in individual and class actions when it comes to determining whether a debt was incurred primarily for consumer or business purposes. (Hyman & Walser-Jolly, The Effect of the FDCPA’s “Consumer Limitation on Class Certification: Do Courts Apply Different Standards in Individual and Class Actions? 70 Conf.… Read More
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In Davidson v. Seterus, Inc., 2018 WL 1281873, at *7–10 (Cal.App. 4 Dist., 2018), the Court of Appeal found that a mortgage servicer was subject to the Rosenthal Act. Although the defendants concede that “secured debt could still be a 'consumer debt,' “ they nevertheless argue that this “does not mean a mortgage debt is a consumer debt.” The defendants… Read More
In Fishman v. Tiger Natural Gas, Inc., 2018 WL 1242076, at *2–3 (N.D.Cal., 2018), Judge Alsup allowed a call-recording class action to proceed. Tiger argues that plaintiffs’ allegations regarding the sales calls — namely that (1) the parties discussed plaintiffs’ PG&E account information, (2) the calls were not made in a public setting, and (3) many other telemarketers disclose that… Read More
According to a May 2017 Public Service Announcement by the Federal Bureau of Investigation (“FBI”), cyber-initiated wire fraud is not just on the rise—it is exploding. Data collected by the Internet Crime Complaint Center (“IC3”) reflects a 2,370% increase in reported fraud losses between January 2015 and December 2016. Between October 2013 and December 2016 there were 22,292 reported cases… Read More
In Florence v. Cenlar Federal Savings & Loan, 2018 WL 1145804, at *5–7 (D.Nev., 2018), Judge Navarro held that a mortgage debt was accurately reported through and after Chapter 13 bankruptcy proceedings. As a court stated in this District, “[t]he [c]ourt was unaware of any statute or case providing that discharge in bankruptcy makes a debt unreportable as opposed to uncollectable.”… Read More
In O'Dell v. National Recovery Agency, 2018 WL 1172435, at *11–13 (E.D.Pa., 2018), Judge Smith granted class cert in an FDCPA case over procedural objections to the class definition. . . .NRA contended that its net worth is $84,000. A net worth this low could foreseeably result in a de minimis recovery for each individual class member (one percent of $84,000… Read More
In Stewart v. Equifax Information Systems, LLC, et.al., 2018 WL 1138286, at *13–14 (D.Kan., 2018), Judge Crabtree denied summary judgment to an FCRA plaintiff and granted summary judgment to a furnisher arising out of the furnisher's providing information about a credit card account that the Plaintiff's ex-husband took out without her consent. The Court offers an interesting discussion of how… Read More
In Romero v. Department Stores National Bank, 2018 WL 1079728, at *1 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA plaintiff had Spokeo standing. The district court erred in concluding that Romero lacked standing under Article III to bring a TCPA claim. The district court did not have the benefit of Van… Read More
In Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 2018 WL 1021225, at *2–4 (C.A.4 (W.Va.), 2018), the Court of Appeals for the 4th Circuit held that the Hobbs Act prevented the District Court from side-stepping the FCC's Rules. The question presented is whether and when a fax that offers a free good or service constitutes an advertisement under… Read More
In Lee v. Professional Recovery Systems, Inc., 2018 WL 1008432, at *3–6 (Cal.App. 1 Dist., 2018), the Court of Appeal held in an unpublished decision that the FCRA preempts the Rosenthal Act. Defendants contend this claim [violation of section 1788.17 --Ed.] is preempted by title 15 of the United States Code, section 1681t (governing credit reporting). . . . The violations plaintiff alleges… Read More
In Garl v. Genesee Valley Auto Mall, 2018 WL 994318, at *1 (E.D.Mich., 2018), Judge Cox granted in part and denied partial summary judgment for a car dealer who was alleged to have violated TILA in connection with the disclosure of GAP and back-dating a contract. Plaintiffs alleged that Defendant violated the Truth in Lending Act (TILA) during the transaction in… Read More
In Gomez v. Mercedes-Benz USA, LLC, 2018 WL 987398, at *6–7 (Mich.App., 2018), the Michigan Court of Appeals found that continued use of a vehicle after revocation of acceptance of non-conforming goods renders the revocation ineffective. Generally, if the buyer rejects the goods he is in possession of, he “is under a duty after rejection to hold them with reasonable… Read More
In Ace American Insurance Company v. Dish Network, LLC, 2018 WL 988404, at *4–7 (C.A.10 (Colo.), 2018), the Court of Appeals for the Tenth Circuit held that the TCPA"s statutory damages were uninsurable penalties, so DISH Network was not owed either a duty to defend or to indemnify DISH Network in litigation filed by the federal government and various states… Read More
In Bassett v. ABM Parking Services, Inc., 2018 WL 987954, at *5–6 (C.A.9 (Wash.), 2018), the 9th Circuit found no Spokeo standing for a bald FACTA violation. Bassett's argument that Congress “created a substantive right that is invaded by a statutory violation” is unconvincing because it depends entirely on the framing of the right. One could fairly characterize the “right”… Read More
In Usry v. Equity Experts.Org, LLC, 2018 WL 934897, at *3 (S.D.Ga., 2018), Judge Hall held that a putative FDCPA class action was an impermissible "fail-safe" class. “A fail-safe class is a class whose membership can only be ascertained by a determination of the merits of the case because the class is defined in terms of the ultimate question of… Read More
In Hagy v. Demers & Adams, 2018 WL 914953, at *3–5 (C.A.6 (Ohio), 2018), the Court of Appeals for the 6th Circuit held that "[w]e know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury.". Thus, the 6th Circuit held that a bare FDCPA violation without correlative injury did not vest Article III… Read More
In Barnes v. Conn Appliances, Inc., 2018 WL 907418, at *3 (S.D.Miss., 2018), Judge Wingate agreed with a TCPA defendant's argument that a non-party to a contract can assent to its terms, including a TCPA-consent clause, but a jury would have to decide whether she did. This court now turns to an examination of the law. The TCPA occupies a… Read More
In Della Vecchia v. Ally Financial, 2018 WL 907045, at *1–2 (M.D.Fla., 2018), the District Court declined supplemental jurisdiction over a counter-claim filed by an automobile finance company against a TCPA Plaintiff. In fact, the typical TCPA action presents a handful of discrete questions (for example, whether the plaintiff consented to a call and whether plaintiff revoked consent), and Ally identifies… Read More
