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Posts published in “Commercial Law”

Recklessly Disregarding a Nonexistent Risk of Harm: Does Including the Expiration Date on Electronically Printed Receipts Constitute Willful Noncompliance under FACTA?

The Fair and Accurate Credit Transactions Act prohibits merchants from including, among other information, credit- and debit-card expiration dates on printed receipts. After this provision originally became effective in 2004, plaintiff class-action firms flooded courts with expiration date lawsuits, which courts and others “met with varying degrees of contempt.”

2019 Bankruptcy Year in Review: What We Have Seen and What to Expect in 2020

The year 2020 offers to be an interesting one for bankruptcy litigation. With several issues before the Supreme Court, at least one will have a material effect on financial services. In addition, higher credit costs will spur an increase in the number of bankruptcy filings, both on the consumer and commercial side. With the California Consumer Privacy Act taking effect on Jan. 1, it will not be long before we see issues arising from it percolating into bankruptcy cases. 

Calif. App. Court (1st Dist) Refuses to Enforce Predispute Jury Waiver Despite Forum Selection Clause

The Court of Appeal of the State of California, First Appellate District, recently held that a forum selection clause in favor of a New York forum was unenforceable where the clause included a predispute jury trial waiver, which is unenforceable under California law but which would have been enforceable under New York law. Accordingly, the Appellate Court reversed the order of dismissal entered by the trial court. A copy of the opinion in Handoush v. Lease Finance Group, LLC is available at:  Link to Opinion. The plaintiff storeowner filed a lawsuit against the defendant company alleging that the defendant supposedly defrauded…

Nevada Enacts ‘Consumer Protection from the Accrual of Predatory Interest After Default Act’

Nevada has enacted a new law entitled the “Consumer Protection from the Accrual of Predatory Interest After Default Act,” which relates to consumer form contracts used in connection with retail installment transactions and the prejudgment and postjudgment interest and attorney fees that may be awarded by a court. Signed into law on June 3 and applicable only to contracts entered into on or after Oct. 1, the Act adds a new chapter to Title 8 of the Nevada Revised Statutes, “Commercial Instruments and Transactions.” The Act does not apply to a number of entities, including (but not limited to): banks;…

Calif. App. Court (2nd Dist) Upholds Over 60% Reduction on Consumer Plaintiff’s Attorney Fee Award

The Court of Appeals of California, Second District, recently upheld a trial court’s ruling reducing the amount of a plaintiff’s attorney’s fee award in a consumer litigation action to less than 40% of the amount sought by the plaintiff’s counsel. A copy of the opinion in Morris v. Hyundai Motor America is available at:  Link to Opinion.  The opinion was later revised slightly and certified for publication:  Link to Opinion. A car buyer sued the manufacturer of a used car she purchased under California’s Song-Beverly Consumer Warranty Act, Civ. Code, § 1790 et seq., for alleged defects that the manufacturer refused to…

7th Cir. Holds UCC Financing Statement May Incorporate List of Collateral by Reference

The U.S. Court of Appeals for the Seventh Circuit recently reversed a bankruptcy court’s ruling that a lender failed to perfect its security interest because its UCC financing statement failed to provide sufficient indication of the secured collateral under Article 9 of the Uniform Commercial Code. In so doing, the Seventh Circuit concluded that under the Illinois version of the UCC, a financing statement’s reference to an unattached security agreement sufficiently “indicates” the secured collateral as required by Article 9, and need not “contain” a specific description of the collateral within its four corners. A copy of the opinion in…

8th Cir. Allows External Evidence to Oppose Remand Under CAFA’s ‘Local Controversy’ Exception

The U.S. Court of Appeals for the Eighth Circuit recently affirmed a trial court’s order denying a motion to remand a putative class action to Arkansas state court based on the federal Class Action Fairness Act’s (CAFA) “local controversy” exception to jurisdiction because the consumer plaintiffs failed to meet their burden to demonstrate that they sought significant relief from a defendant that was a citizen of the state. In so ruling, the Eighth Circuit held that the trial court did not err when it considered extrinsic evidence in the form of affidavits from the defendant company because a court “may…

DC Cir. Upholds Denial of Class Cert Due to Individualized Inquiries for Injury and Causation

The U.S. Court of Appeals for the D.C. Circuit recently held that a trial court did not abuse its discretion in denying class certification on the ground that common issues did not predominate where individual determinations of injury and causation would be required for at least 2,2017 of the 16,065 putative class members. Accordingly, the D.C. Circuit affirmed the trial court’s denial of class certification. A copy of the opinion in In re Rail Freight Fuel Surcharge Antitrust Litigation is available at:  Link to Opinion. The plaintiffs were customers of the four largest freight railroads in the United States (collectively,…

8th Cir. Reverses Dismissal of Uniform Fraudulent Transfer Act Claim for Lack of Standing

The U.S. Court of Appeals for the Eighth Circuit recently reversed a trial court order dismissing a plaintiff’s complaint for lack of standing, holding that the plaintiff properly alleged an injury in fact because it claimed an economic harm to it that was concrete and personal to the plaintiff. In so ruling, the Eighth Circuit found that standing existed even if the claim may lack merit under the Missouri Uniform Fraudulent Transfer Act, because Article III standing is distinct from the merits of a state law claim. A copy of the opinion in Enterprise Financial Group Inc. v. Podhorn is…