Arbitration

In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver. NEAF also argues that the Arbitration Provision is broad enough… Read More

In Anderson v. Credit One Bank, N.A., 2018 WL 2287329, at *2–3 (S.D.Cal., 2018), Judge Anello struck a TCPA Plaintiff's "errata" sheet following Plaintiff's deposition, reconsidered the denial of Defendant's Petition to Compel Arbitration, and granted the Petition to Compel Arbitration. Here, upon due consideration, the Court finds that Plaintiff’s errata sheet “runs afoul of Rule 30(e)’s...requirements.” Tourgeman, 2010 WL… Read More

In Delgado v. Ally Financial, et. al., 2018 WL 2128661, at *5–6 (S.D.Cal., 2018), Judge Benitez ordered an FCRA case to arbitration, rejecting the Plaintiff's argument that the bankruptcy eliminated the arbitration clause. Delgado also opposes the enforcement of the arbitration provision on the basis his bankruptcy discharge rendered the arbitration provision unenforceable. (Doc. No. 25 at 4.) This assertion,… Read More

In Freeman v. Smartpay Leasing, LLC, 2018 WL 467390, at *1–2 (M.D.Fla., 2018), Judge Presnell deemed a defendant in default for failing to pay JAMS' fees when JAMS classified the arbitration as a "consumer" arbitration that required the defendant to bear almost all of the fees. The Arbitration Agreement gave Freeman the option of choosing between two arbitral fora—the American… Read More

In Gadomski v. Wells Fargo Bank N.A., 2018 WL 263903, at *3–4 (E.D.Cal., 2018), Judge Nunley rejected a consumer's claim that her FCRA claim was not subject to contractual arbitration because she'd had an intervening bankruptcy discharge. Plaintiff first argues the Agreement was rendered unenforceable because of the Bankruptcy Action. (ECF No. 15 at 5–6.) However, Plaintiff offers no cases… Read More

In Ewing v. Charter Communications Holding Company, LLC., 2017 WL 6049379, at *3–4 (S.D.Cal., 2017), Judge Benitez ordered a TCPA case to arbitration over the consumer's objection that he opted-out. In his opposition, Ewing does not object to or otherwise dispute Ms. Flores's declaration or the attached evidence of his account history. His sole argument is that he “followed the… Read More

The Senate voted 51 to 50 late Tuesday to repeal the Consumer Financial Protection Bureau’s rule banning mandatory arbitration clauses in financial contracts.  Vice-President Pence cast the deciding vote to break the tie.    Senate Republicans relied on the Congressional Review Act ("CRA") to overturn the CFPB's anti-Arbitration Rule.  The CFPB's Rule had been challenged by the Department of Treasury… Read More

Today, the Dept. of Treasury issued an analysis of the CFPB's Arbitration Rule, entitled Limiting Consumer Choice, Expanding Costly Litigation: An Analysis of the CFPB Arbitration Rule.  The Dept. of the Treasury concluded that In view of these defects, it is clear that the Rule does not satisfy the statutory prerequisites for banning the use of arbitration agreements under the… Read More

In Garcia v. Santander Consumer USA, Inc., 2017 WL 4325777, at *2–3 (E.D.Cal., 2017), Judge McGill ordered an auto finance case to arbitration, allowing the Arbitrator to determine the effect of McGill on the enforceability of the Arbitration clause. The arbitration provision stated in part, “Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not… Read More

In McGill v. Citibank, 2017 WL 4382034, at *3 (Cal.App. 4 Dist., 2017) (unpublished), the Court of Appeal put its gloss on the Supreme Court's decision in McGill and what is left for the trial court to decide on remand. The Supreme Court concluded its opinion with the following paragraph: “Our invalidation of the arbitration provision insofar as it purports to waive McGill's… Read More

In Rodriguez v. A Better Way Wholesale Autos, Inc., 176 Conn.App. 392, 2017 WL 3977264 (Conn. App. April 17, 2017) , the Connecticut Court of Appeal held that adjudicating a dispute between the dealer and the finance company was properly within an Arbitrator’s jurisdiction in a consumer versus dealer arbitration. Here, A Better Way asserts that the parties' submission to… Read More

In Drayton v. Toyota Motor Credit Corporation, 2017 WL 1485027 (11th Cir. 2017), the Court of Appeals found that an arbitration clause could not be enforced. Lisa Drayton brought a putative class action claim against Toyota after she allegedly received automated telephone calls from Toyota attempting to collect a consumer debt. She alleged that the calls violated the Telephone Consumer Protection Act… Read More

A copy of the Alert is here:   McGill Financial E-Alert 4.11.17 Read More

In McGill v. Citibank, N.A., 2017 WL 1279700, at *1 (Cal., 2017), the California Supreme Court addresses whether the Broughton/Cruz rule survives Concepcion.  See Kilgore v. KeyBank, Nat. Ass'n, --- F.3d ----, 2012 WL 718344 (9th Cir. 2012) ("the Broughton–Cruz rule does not survive Concepcion because the rule “prohibits outright the arbitration of a particular type of claim”—claims for broad public… Read More

In Raczynski v. Daland Nissan, Inc. 2017 WL 603869, at *4–5 (Cal.App. 1 Dist., 2017), the Dealer got hit for $358,000 by a JAMS arbitrator.  The customer would not agree to a second arbitration under the RISC's clause allowing one if an award exceeded $100,000, and the trial court refused to order a second arbitration.  The Court of Appeal, in an… Read More

In Eileen J. Dalton v. Santander Consumer Usa, Inc., 2016 WL 5266621, at *6 (N.M., 2016), the New Mexico Supreme Court rejected an unconscionability challenge to an arbitration clause in the standard form RISC. "The self-help and small claims carve-out provisions in the arbitration clause of the finance contracts are not substantively unconscionable. Therefore, Dalton did not satisfy her burden… Read More

Today, the CFPB issued a Notice of Proposed Rulemaking with regard to consumer arbitration, here:  CFPB_Arbitration_Agreements_Notice_of_Proposed_Rulemaking.  The CFPB's press release is here:  CFPB Press Release. The CFPB proposal is seeking comment on a proposal to prohibit companies from putting mandatory arbitration clauses in new contracts that prevent class action lawsuits. The proposal would open up the legal system to consumers… Read More

In Roberts v. AT&T Mobility, LLC, 2016 WL 1660049, at *1-4 (N.D.Cal., 2016), Judge Chen enforced AT&T's arbitration clause and class action waiver against Plaintiff's constitutional challenge. Plaintiffs essentially raise three arguments as to why arbitration should not be compelled: (1) because, if this Court were to compel arbitration, that would be state action that would violate their First Amendment rights –… Read More

In Goodridge v. KDF Automotive Group, Inc., 2016 WL 142216, at *9-10 (Cal.App. 4 Dist., 2016) (unpublished), the Court of Appeal addressed Plaintiff's continued post-Sanchez fight against arbitration, finding that the standard form RISC was not unconscionable.  The Court of Appeal also found that that the Defendant's litigation conduct did not waive the right to assert it. We conclude Goodridge has not… Read More

In Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *2 (W.D.Tenn., 2016), Judge Anderson denied a class certification motion on the basis that the Defendant responded to it with a Petition to Compel Arbitration, finding that the Arbitration Clause was not unconscionable.  The unconscionability analysis is not unusual, so much as the procedural posture. TruGreen is a national lawn care… Read More