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Posts published in “Litigation”

3rd Cir. Upholds Challenge to Securitization Trusts’ Appointment of Additional Servicer

The U.S. Court of Appeals for the Third Circuit recently held that six Delaware asset securitization trusts could appoint an additional servicer to collect loans in default, but violated the trust documents by transferring to the beneficial owners powers reserved for the trustee.

2019: A Watershed Year for Consumer Financial Services Law

It has been an extraordinary 365 days for consumer financial services law. I cannot recall a year where so many states introduced legislation or proposed regulations or rules impacting the credit industry. At the federal level, proposed rules for the Fair Debt Collection Practices Act were (finally) released and California also proposed regulations under the California Consumer Privacy Act.

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…

2nd Cir. Holds Common Fund Principles Apply Even in Fee-Shifting Class Actions

The U.S. Court of Appeals for the Second Circuit held that even if a class action case is brought pursuant to a fee-shifting statute, common-fund principles control fee awards authorized from a common fund, and a common-fund fee award may be calculated as the lodestar or as a percentage of the common fund. Accordingly, the Second Circuit affirmed the trial court’s ruling finding that lead plaintiff’s counsel was entitled to its requested fee and expense award. A copy of the opinion in Fresno County Employees’ Retirement Association v. Isaacson/Weaver Family Trust is available at:  Link to Opinion. This case involved…

Fla. Supreme Court Changes Standard for Admitting Expert Testimony Into Evidence

The Supreme Court of Florida recently held that the Florida Legislature’s 2013 amendment of the Florida Rules of Evidence adopting the federal Daubert standard for admitting expert testimony was unconstitutional. In so ruling, the Court returned Florida to the Frye standard for admitting expert testimony. A copy of the opinion in Richard DeLisle v. Crane Co., et al. is available at:  Link to Opinion. The case involved the admissibility of expert testimony in a plaintiff’s personal injury action against several cigarette manufacturer defendants.  The plaintiff used multiple experts to establish that smoking cigarettes caused his cancer.  The trial court examined the admissibility…

7th Cir. Holds Trial Court Erred in Reducing Punitive Damages Without New Trial

The U.S. Court of Appeals for the Seventh Circuit held that the trial court erred when it reduced the plaintiff’s punitive damages award without giving him the option of a new trial on damages. Accordingly, the Seventh Circuit reversed the ruling of the trial court, and remanded the matter for the court to offer the plaintiff the option of a new trial on damages. A copy of the opinion in Beard v. Wexford Health Sources, Inc. is available at:  Link to Opinion. An inmate plaintiff filed a complaint against members of a prison’s medical staff and administrative team alleging they…

7th Cir. Holds Pl’s Recovery of Less Than Pre-Trial Settlement Offers Does Not Justify Denying Atty Fees

The U.S. Court of Appeals for the Seventh Circuit recently held that a trial court abused its discretion in denying attorney’s fees to a prevailing plaintiff despite the plaintiff’s failure to recover an award which exceeded the pre-trial settlement offers. A copy of the opinion in Capps v. Drake is available at:  Link to Opinion. The plaintiff filed suit against multiple law enforcement officers pursuant to 42 U.S.C. § 1983 asserting a number of claims for unlawful search and use of excessive force. At various points during litigation, the parties engaged in settlement discussions with the plaintiff demanding $3.5 million…