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Posts published in “Class Actions”

Clas Actions

Fla. UDAAP Class Claim for Injunctive Relief Can Survive Where There is No Actual Loss

Providing a putative class representative with complete relief did not moot his individual and class demand for declaratory and injunctive relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) according to a recent decision from a divided panel of Florida’s First District Court of Appeal. In Ahearn v. Mayo Clinic, 2015 Fla. App. LEXIS 16716 (Fla. Dist. Ct. App. 1st Dist. Nov. 6, 2015), Shawn Ahearn received emergency medical treatment from the Mayo Clinic in September 2013. Lacking health insurance for the medical care, he received a bill for $5,953.26. After paying $330 of the bill, Ahearn found fault with…

7th Cir. Rejects Heightened or Stringent ‘Ascertainability’ Requirement for Class Certification

The U.S. Court of Appeals for the Seventh Circuit recently refused to impose a heightened “ascertainability” requirement at class certification. More specifically, the Court held that plaintiffs do not have to prove at the class certification stage that there is a “reliable and administratively feasible” way to identify class members under Federal Rule of Civil Procedure 23(b)(3), and affirmed the district court’s certification of a class of consumers who purchased a dietary supplement falsely advertised as scientifically tested and proven to relieve joint pain. A copy of the opinion is available at:  Link to Opinion. The putative class plaintiff sued…

9th Circ. Reverses Denial of Class Certification in RESPA Section 8 Action

The U.S. Court of Appeals for the Ninth Circuit recently held that the district court abused its discretion in denying a plaintiff’s motion to certify a class of home buyers alleging that a scheme involving a title insurer buying minority interests in title agencies in exchange for referral of future title insurance business violated the federal Real Estate Settlement Procedures Act (RESPA), affirming in part, vacating in part and remanding for further proceedings. In so ruling, the Court held that the Consumer Financial Protection Bureau’s position in its amicus brief was not entitled to Chevron deference, because the CFPB was…

2nd Circuit Holds Plaintiff’s Individual Claims Not Rendered Moot By Unaccepted Offer of Judgment

The U.S. Court of Appeals for the Second Circuit recently affirmed the denial of a motion to dismiss a putative class action, holding that the named plaintiff’s individual claims were not rendered moot by an unaccepted offer of judgment under Federal Rule of Civil Procedure 68. This case was decided before the U.S. Supreme Court granted certiorari in Campbell-Ewald Company v. Gomez on May 18, 2015.  Campbell-Ewald should address in part whether a case should be dismissed when the plaintiff receives an offer of complete relief on his claim, and whether this rule should be any different if the plaintiff has asserted a class…

U.S. Supreme Court to Take Up Whether Complete Relief to Class Litigant Moots Class Claims

Statutory damage claims, like those under the TCPA and the FCRA, will be scrutinized in the next session of the U.S. Supreme Court and its decisions could have broad implications for the financial services industry. Today we look at one of the cases the court will consider, Gomez v. Campbell-Ewald Co. The case considers whether an offer of complete relief to a litigant will extinguish both her individual claims and, prior to class certification, render her class claims moot. A decision will likely impact litigation under the FDCPA, TILA, EFTA and other federal laws, which can expose financial services companies to…

Ninth Circuit Holds State Court Order Expanding Class Size Triggers Removal Opportunity

The US. Court of Appeals for the Ninth Circuit recently reversed a district court’s order remanding a class action to state court, holding that a second removal was proper and timely-filed 30 days after the state court entered an order that expanded the class definiton after the first removal. A copy of the opinion is available at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/01/15-55176.pdf The plaintiff, an assistant store manager at a nationwide chain of discount retail stores, filed this action in state court in July of 2012, alleging that the employer supposedly violated the California Labor Code by denying 10-minute rest breaks to its employees. As…

‘Four-Second Review’ Decision Cited in Meaningful Involvement Class Action

Following on the heels of a June 30 decision finding that a New Jersey law firm violated the Fair Debt Collection Practices Act because its attorneys spent four seconds reviewing a pleading, a complaint seeking class certification has been filed against the same firm, citing findings of fact from the adverse court opinion. The complaint, filed in New Jersey state court last month, was removed to the federal District of New Jersey last week. The complaint is available here. The complaint focuses on a May 2014 settlement letter, which it alleges was not prepared by attorneys and was sent before an “attorney exercised professional judgment by…

TCPA Prior Express Consent Must Come From ‘Called Party’

The Telephone Consumer Protection Act requires a call placed to a cellular phone using an autodialer, to have the prior express consent of the person who received the call, the Eleventh Circuit Court of Appeals held this past Friday. In Osorio v. State Farm Bank, debt collection calls were made to a cellular phone line subscribed to by Fredy Osorio.The intended recipient of the calls was Osorio’s long-time cohabitant, Clara Betancourt.  Betancourt had previously applied for car insurance from State Farm and at the same time applied for and received a credit card from State Farm to which her car insurance premiums were…

7th Circuit FDCPA Decision Sides with CFPB, FTC on Time Barred Debt

Earlier this week the Seventh Circuit Court of Appeals issued its opinion in the consolidated appeals of McMahon v. LVNV Funding, LLC and Delgado v. Capital Management Services, L.P., concerning the collection of time barred debt without the threat of litigation. The result is not good for the credit and collections industry, principally because it further confuses application of the Fair Debt Collections Practices Act across the nation. Background In both cases the debt collectors offered to settle the debts, without mention of a lawsuit or any legal action. Both suits claimed that the letters were false, deceptive and misleading, in violation…

Breaking Down the Second Circuit’s Recent Decision Re Disclosure Disputes Under FDCPA’s 1692g(a)(3): What Debt Collectors Need to Know

The Second Circuit’s recent decision in Hooks v. Forman has received quite a bit of attention since it was handed down May 29.  The case held that a disclosure made pursuant to 1692g(a) violated the Fair Debt Collection Practices Act when it instructed the recipient of the letter that if she wished to dispute the debt, she could only do so in writing. The decision recognized that under section 1692g, some disputes can be verbal. It also recognized that under other sections (particularly sections 1692g(a)(4) and 1692g(b), a dispute must be in writing to be effective. Most debt collectors have 1692g disclosures…

A Slice With Sausage, Peppers and Prior Express Consent: The Papa John’s TCPA Class Action

Yesterday, Lawyers.com reported that Papa John’s, the national pizza chain, had reached an agreement to settle for $16.5 million a Telephone Consumer Protection Act class-action claim. If approved by the court, the settlement will put an end to an interesting lawsuit involving the TCPA’s prior express consent requirements. The TCPA proscribes the use of an “Automatic Telephone Dial System” to call a person’s cell phone, without first obtaining the called party’s “prior express consent” to receive such a call. Enacted in 1991, many courts, including the Ninth Circuit Court of Appeals, have found that the sending of  text messages to cell phones using an…