On October 11, 2016, the D.C. Circuit Court of Appeals issued its bombshell opinion in PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016). Media reports have primarily covered the Constitutional issue the decision resolved—that the structure of the Consumer Financial Protection Bureau (“CFPB”) violates Article II’s delegation of all executive powers to the President. But the decision also… Read More
Severson & Werson attorney David Berkley (OC) recently prevailed on a claimants’ suit for damages under the TCPA, the FDCPA and for violation of common law privacy rights in arbitration before AAA. The arbitrator found that the calls at issue were not placed by an ATDS governed by the TCPA. The arbitrator also found that FDCPA case and common law… Read More
In Petley v. San Diego County Credit Union, 2017 WL 385742, at *4–5 (S.D.Cal., 2017), Judge Miller rejected the application of California's litigation privilege to Rosenthal Act claims arising out of filing actions on time-barred debts. SDCCU argues that the rule set forth in Komarova is limited to cases where the two statutes conflict, and that no such conflict exists… Read More
In Brickman v. Facebook, Inc., 2017 WL 386238, at *3–4 (N.D.Cal., 2017), Judge Henderson found that Facebook's "Happy Birthday" texts survived a motion to dismiss. Judge Henderson also found that the TCPA survived a constitutional challenge as violating free speech. Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016),… Read More
In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA. When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state… Read More
In Reynolds v. Time Warner Cable, Inc., 2017 WL 362025, at *2–3 (W.D.N.Y., 2017), Judge Payson stayed a TCPA case pending the outcome of the ACA Int'l proceedings. Weighing these interests, this Court finds that a stay is warranted. Although plaintiff surely has a genuine and recognized interest in pursuing statutory damages, he will not be significantly prejudiced by awaiting… Read More
In Kleiner v. Earthlink, Inc., 2017 WL 345525, at *1 (E.D.Cal., 2017), Judge Orrick denied a motion to dismiss an EFTA claim. The facts were as follows. Around December 2015, Linda Kleiner called EarthLink to purchase internet services. Complaint (“Compl.”) (Dkt. No. 1) ¶ 9. During this call, she learned that EarthLink's “services were a ‘dial-up’ type internet” and told… Read More
On January 20, 2017, Donald J. Trump was sworn in as the forty-fifth President of the United States. Regardless of how one feels about Mr. Trump’s election, one thing seems clear—relief is coming to financial institutions from the increased regulatory burdens imposed on them at the federal level during the Obama Administration. On January 23, 2017, President Trump told business… Read More
The financial services industry is bracing for the formal release by the Consumer Financial Protection Bureau (“CFPB”) of its proposed arbitration rule, which is aimed at reversing the long line of United States Supreme Court precedent holding that the Federal Arbitration Act (“FAA”) trumps class actions. For many, the only questions are when the rule will be issued (answer: after… Read More
In Golan v. Veritas Entertainment, LLC, 2017 WL 193560, at *3 (E.D.Mo., 2017), Judge Webber certified a TCPA class. The allegations of Plaintiffs' Second Amended Complaint (“Complaint”) focus on telemarketing of a movie titled “Last Ounce of Courage.” Plaintiffs allege Defendants engaged in an advertising campaign for the movie which included telephone calls to approximately four million residential telephone numbers… Read More
In Smith v. Blue Shield of California Life & Health Ins. Co., 2017 WL 167451, at *7–10 (C.D.Cal., 2017), Judge Carney dismissed a TCPA claim against Blue Shield who placed informational calls to its patient. The Ninth Circuit has stated that courts should evaluate the content of purported telemarketing “with a measure of common sense.” Chesbro v. Best Buy Stores,… Read More
In Mashiri v. Epsten Grinnell & Howell, 2017 WL 127565, at *4 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit weighed in on the split of authority amongst the circuit courts, finding that delinquent HOA assessments are "debts" under the FDCPA. The contents of the May Notice plainly belie Epsten's contention that it did not attempt to… Read More
In Cabiness v. Educational Financial Solutions, LLC., 2017 WL 167678, at *2 (N.D.Cal., 2017), Judge Tygar denied a TCPA defendant's motion to dismiss based on lack of purported Art. III Standing. Specifically, the Defendant relies on Romero v. Dep't Stores Nat'l Bank, 15-cv-193, 2016 WL 4184099 (S.D. Cal. 2016). ECF No. 50 at 7. In that case, the court held that… Read More
In Keller v. Experian Information Solutions, Inc., 2017 WL 130285, at *6–8 (N.D.Cal., 2017), Judge Koh dismissed a FCRA plaintiff's argument that her creditor's reporting of an account during bankruptcy was inaccurate. Experian and Wells Fargo argue Plaintiff's FAC must be dismissed because Plaintiff fails to identify any inaccurate or misleading statements in Plaintiff's credit report. In response, Plaintiff argues… Read More
In Ramirez v. Baxter Credit Union, 2017 WL 118859, at *2 (N.D.Cal., 2017), Judge Illston dismissed an EFTA class action. The facts were as follows: This dispute, and others like it, hinge on how a financial institution calculates accountholders' account balances when determining whether an overdraft has occurred, and whether the institution adequately informs accountholders of these overdraft practices. A… Read More
In Lyudmila Maronyan v. Financial Credit Network Inc., 2017 WL 57835, at *3 (C.D.Cal., 2017), Judge Wilson allowed an FDCPA claim to proceed based on pleadings in the state court collection action. FCN's statements regarding its entitlement to attorneys' fees in the state court complaint may in fact be misleading to the least sophisticated debtor. Although one part of FCN's… Read More
In Gay v. Alliant Credit Union, 2017 WL 35704, at *4 (E.D.Mo., 2017), Judge Fleissig said that a creditor need not repossess a boat or bear liability once it sunk. The debtor still owed the money. In Count II, Plaintiff alleges that Defendant violated the UCC, as codified by Missouri, Mo. Rev. Stat. § 400.9-609, by “promising that it would repossess the… Read More
In Frisch v. AllianceOne Receivables Management, LLC, 2017 WL 25471 (E.D. Wis. 2017), Judge Pepper granted summary judgment to a debt collection agency who manually dialed calls, even though the caller "had" an ATDS. The court agrees that there are evidentiary problems with the evidence the plaintiff has presented. Even if the documents were admissible, however, the plaintiff still would… Read More
In Comprehensive Health Care Systems of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd., 2017 WL 27263, at *4–6 (N.D.Ohio, 2017), Judge Burke dismissed a TCPA blast-fax against a defendant on whose behalf the fax allegedly was sent. Hygenic submits that these allegations are insufficient to state a claim that Hygenic is liable under the TCPA because the Amended Complaint generically lumps… Read More
In WM Capital Partners, LLC. v. Thornton, 2016 WL 7477738, at *3–6 (Tenn.Ct.App., 2016), the Tennessee Court of Appeals found that a secured party's delay in securing possession of the collateral -- which resulted in a lesser price realized at disposition -- was not a defense to the secured party's collection action because the UCC's commercially reasonable disposition requirement is… Read More
