In In Re: American Express Merchants’ Litigation (No. 06-1871-cv), a two judge panel of the Second Circuit breathes new life into arguments to strike arbitration clauses. The court held that, because of the allegedly prohibitive costs for pursuing antitrust claims on an individual basis, forcing the plaintiffs to pursue their claims in arbitration would prohibit them from effectively vindicating their federal claims. The court therefore held that the arbitration agreement at issue was unenforceable. Continue reading this entry
Category Archives: Class Actions
Supreme Court In CompuCredit Corp. v. Greenwood Gives Another Victory to Proponents of Arbitration
Posted in Class ActionsFollowing on the heals of its pro-arbitration decision in Concepcion from earlier this year, the United States Supreme Court ruled today that a federal statute that provides for a private right of action and even for class actions, but is silent as to whether these claims can proceed in arbitration, does not trump the Federal Arbitration Act. See CompuCredit Corp. v. Greenwood, 566 U.S. __ (2011).
As the U.S. Supreme Court has stated on numerous occasions, there is “a liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). In CompuCredit Corp. v. Greenwood, No. 10-948 (U.S. Jan. 10, 2012), the Court trotted out that old refrain again today, holding that the fact that a federal statute provides for a private right of action—while silent on the issue of whether claims under the statute can be pursued in arbitration—does not mean that the plaintiffs can get out of their agreement to arbitrate with the defendant. The plaintiffs were unhappy with the agreement for a credit card they entered into. They argued that the Credit Repair Organizations Act (CROA), 15 U.S.C. § 1679 et seq., specifically provided a requirement for the defendant to disclose to consumers that “You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.” 15 U.S.C. § 1679c(a). The CROA also provides that “Any waiver by any consumer of any protection provided by or any right of the consumer under this subchapter—(1) shall be treated as void; and (2) may not be enforced by any Federal or State court or any other person.” 15 U.S.C. § 1679f(a).
Eighth Circuit Upholds 365/360 Days Interest Calculation Clause
Posted in Class ActionsThe U.S. Court of Appeals for the Eighth Circuit recently upheld the enforceability and clarity of a 365/360 day interest calculation clause.
As noted in an earlier posting regarding this case, the U.S. District Court for the Eastern District of Missouri had previously dismissed a class action alleging that the lender breached its contracts with the plaintiff class of borrowers by imposing a full year’s interest charges in a 360 day period while the variable rate clause applied the rate “per annum.” On appeal, the Court of Appeals affirmed the District Court’s findings that the use of a “per annum” rate is not inherently inconsistent with a clear 365/360 interest calculation clause.
The Ninth Circuit Permits Cumulative Recovery Under the FDCPA and California’s Rosenthal Act
Posted in Class Actions; Fair Credit Reporting Act; Fair Debt Collection Practices Act; Preemption; State Consumer Protection LawsThe recent Ninth Circuit decision, Gonzalez v. Arrow Financial Services, LLC, — F.3d —, 2011 WL 4430844 (9th Cir Sept. 23, 2011), addresses several issues relating to claims brought under the Fair Debt Collection Practices Act (“FDCPA”) and examines that statute’s interaction with the corresponding California debt collection statute, the Rosenthal Act.
7th Circuit Reinstates Meritorious FDCPA Case Despite Empty Class Action Claims
Posted in Class ActionsIn a decision issued last Friday, chastising both the plaintiff’s lawyer and the district court, the Seventh Circuit rolled back the dismissal, for want of prosecution, of a Fair Debt Collection Practices Act (FDCPA) case. It was abuse of discretion to dismiss plaintiff’s entire case – which included a meritorious FDCPA claim – just because the alleged class action claims were unsupported.
In Kasalo v. Harris & Harris, Ltd., Case No. 10-2755 (7th Cir. August 26, 2011), Kasalo sued Harris & Harris, Ltd., a collections agency, for violations of the FDCPA in connection with the attempted collection of an overdue hospital bill. While Harris & Harris admitted that at least one of Kasalo’s claims was meritorious, and that they intended to settle it, Kasalo’s lawyer undertook to transform the case into a class action (likely to increase the potential damages from the modest $1,000 amount allowed under the Act). Plaintiff’s lawyer included in the original complaint, two class counts, and then during the course of discovery, endeavored to add a third.
U.S. Supreme Court Grants Review Regarding RESPA Standing in the Absence of Economic Injury
Posted in Class Actions; Real Estate Settlement Procedures ActOn Monday, the U.S. Supreme Court granted certiorari in a proposed class action to determine the scope of a home-buyer’s standing to sue a title insurer company that allegedly violated the Real Estate Settlement Procedures Act of 1974 (RESPA). In First American Financial Corporation, et al. v. Edwards (10‑708), the question before the Court is whether a home-buyer has standing under Article III, § 2 of the United States Constitution to pursue a RESPA claim if the home-buyer cannot establish that the violation resulted in an increase in the amount the home-buyer paid for title insurance services.
United States Supreme Court Holds Class Actions Waivers In Arbitration Agreements Are Enforceable
Posted in Class ActionsThe United States Supreme Court issued a much awaited decision today that will dramatically impact class action litigation across the country. In a 5-4 decision, in AT&T Mobility LLC v. Concepcion, No. 09-893 (April 27, 2011), the Court held that arbitration agreements in standard form contracts that waive the right to pursue a class action are enforceable, and that the Federal Arbitration Act, 9 U.S.C. § 1, et seq., preempts a California court ruling to the contrary.
Fifth Circuit Affirms Denial of Class Certification of Claims Against Title Insurance Company
Posted in Class ActionsIn the recent case of Benavides v. Chicago Title Insurance Co., — F.3d —-, 2011 WL 1107009, No. 10-10136 (5th Cir. March 23, 2011), the Fifth Circuit affirmed the Northern District of Texas’s denial of class certification which was based on a finding that there lacked predominance of common questions over individualized ones. In Benavides, the plaintiff filed a class action alleging that the defendant title insurer failed to provide a discount, mandated by Texas insurance code, applicable to title insurance premiums, “when the new loan is issued within seven years of the initial mortgage and the initial mortgage was also covered by the title insurance policy.”
Fifth Circuit Affirms Dismissal FDCPA Claims
Posted in Class Actions; Fair Debt Collection Practices Act; PreemptionIn Castro v. Collecto, Inc., No. 09-50975, 2011 WL 651921 (5th Cir. Feb. 24, 2011), the Fifth Circuit affirmed the dismissal of the plaintiffs’ Fair Debt Collections Practices Act (“FDCPA”) claims, holding that the two year statute of limitations under the Federal Communications Act (“FCA”) did not preempt the four year Texas statue of limitations period for the collection of mobile services debts.
Castro filed suit against the defendants, Collecto, Inc. and U.S. Asset Management, Inc. alleging violations of the FDCPA due to defendants’ attempt to collect an approximately three year old debt owed to Sprint PCS. Castro alleged that the letters sent by the defendants could be interpreted as threatening litigation, despite the fact that the claims were time-barred under the FCA.
Old Reg Z Does Not Require Notice of Changes Contemplated in Cardholder Agreement
Posted in Class Actions; Credit CARD Act; Truth in Lending ActYesterday the United States Supreme Court unanimously ruled that the pre-2009 version of Reg Z did not require a new notice to be given when a creditor raises the interest rate on a credit card account in response to a cardholder default. Although the case was decided under now repealed law, it is important for a couple of reasons. First, it resolves a split in the circuits about how to interpret certain Federal Reserve Board (“Board”) regulations called Reg Z which were promulgated to implement the Truth in Lending Act. Second it gives additional guidance on how the courts should defer to a federal agency’s interpretation of its own ambiguous regulation.
FDCPA Claim Cannot Be Based on Proof of Claim
Posted in Class Actions; Fair Debt Collection Practices ActLamont and Melissa Simmons filed for bankruptcy protection in 2007. Roundup Funding filed a proof of claim saying the Simmons owed $2039.21. The Simmons responded saying we owe you money, but not that much. The judge agreed and reduced the claim to $1100.
The Simmons then sued, seeking class certification, contending Roundup violated the Fair Debt Collection Practices Act by misrepresenting what they owed. In a case decided Tuesday, the U.S. Court of Appeals for the Second Circuit ruled the Simmons have no claim. While the FDCPA bars misrepresentations of the amount of debt, the court ruled it does not apply in this case.
The FDCPA was designed to eliminate abusive practices in the debt collection industry. "There is no need to protect debtors who are already under the protection of the bankruptcy court." The purpose of protecting unsophisticated consumers is "not implicated when a debtor is instead protected by the court system and its officers." For that reason, the Simmons could not predicate their FDCPA claim based on a creditor’s filing in the bankruptcy court.
Seventh Circuit Remands Class Action Disupte Over Credit Dispute to District Court
Posted in Class ActionsToday, the Seventh Circuit issued an opinion holding that even though some class members’ claims lack federal jurisdiction, the district court must consider whether it has jurisdiction over the remaining members’ claims under the Class Action Fairness Act (CAFA).
In this case, the plaintiff lost an arbitration over a credit card debt and the Illinois state court entered an award enforcing the judgment. The plaintiff believed that the law firm collecting the debt, Mann Bracken, LLP, and the National Arbitration Forum “secretly are under common control,” and asked the state judge to vacate the award. The judge vacated the award and dismissed the case without prejudice, but did not provide the reasons. The plaintiff then filed a state court class action against Mann Bracken and the issuer of her credit card on behalf of all persons who have claims arbitrated before the National Arbitration Forum with Mann Bracken representing the creditor.
The Defendants immediately removed the case under CAFA. The district court, however, remanded the case back to the state court under the Rooker-Feldman doctrine, which ”prevents federal adjudication of any claim that seeks to invalidate judgments entered by state courts.” The district court held that because the plaintiff was seeking relief on behalf of individuals whose claims are barred by the Rooker-Feldman doctrine, only the state court could resolve the entire dispute. The Seventh Circuit granted the defendants’ petition for appellate review.
The Seventh Circuit held that the plaintiff’s claim was not barred by Rooker-Feldman, because her state court judgment was invalidated by the state court. The court then found three potential subclasses from her class definition: (1) persons who lost in state court (award confirmed); (2) persons who won in state court (award set aside); and (3) persons who have neither won nor lost. The plaintiff cannot represent anyone in subclass 1 because those claims are barred by Rooker Feldman. Therefore, the Seventh Circuit remanded the case so the district court can determine if subclasses 2 and 3 can meet the jurisdictional elements of CAFA “in a properly defined class.”
Eleventh Circuit Certifies Questions Regarding The Enforceability Of A Class Action Waiver To The Florida Supreme Court
Posted in Class ActionsIn Pendergast v. Sprint Nextel Corporation, Case No. 09-10612 (11th Cir. Jan. 4, 2010), the Eleventh Circuit found that there were unsettled questions of Florida law as to whether a class action waiver was procedurally or substantively unconscionable or void for other reasons and certified the following four questions to the Florida Supreme Court:
- Must Florida courts evaluate both procedural and substantive unconscionability simultaneously in a balancing or sliding scale approach, or may courts consider either procedural or substantive unconscionability independently and conclude their analysis if either one is lacking?
- Is the class action waiver provision in Plaintiff’s contract with Sprint procedurally unconscionable under Florida law?
- Is the class action waiver provision in Plaintiff’s contract with Sprint substantively unconscionable under Florida law?
- Is the class action waiver provision in Plaintiff’s contract with Sprint void under Florida law for any other reason?
Breaking News
Posted in Class ActionsLaw360 is reporting this morning that JPMorgan Chase & Co. has settled out of a class action suit brought against it and other credit card companies in the Southern District of New York. The plaintiffs allege, among other things, that credit card companies conspired to mandate arbitration to settle disputes against credit cardholders.