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Posts tagged as “Third Circuit”

3rd Cir. Holds ATDS Must Have ‘Present Capacity’ to Autodial, Follows ACA Int’l

Following the D.C. Circuit’s ruling in ACA Int’l v. FCC, the U.S. Court of Appeals for the Third Circuit recently held that an “automatic telephone dialing system” under the federal Telephone Consumer Protection Act must have the present or current capacity to store or produce telephone numbers using a random or sequential number generator, and to dial those numbers. A copy of the opinion in Bill Dominguez v. Yahoo, Inc. is available at:  Link to Opinion.  The plaintiff purchased a cellphone with a reassigned telephone number.  The prior owner of the number subscribed to an email service provider’s “Email SMS Service,”…

3rd Cir. Reverses Dismissal of FCBA Billing Error, TILA Unauthorized Use Claims

The U.S. Court of Appeals for the Third Circuit recently reversed the dismissal of a consumer’s complaint for unauthorized use of his credit card, holding that he stated claims for relief under the federal Fair Credit Billing Act’s correction of billing errors provisions, and the federal Truth in Lending Act’s unauthorized-use provisions. In so ruling, the Court held that: When “a creditor removes a disputed charge from a billing statement and later reinstates that charge, the 60-day period in which a consumer must file a written dispute begins when the consumer receives the first statement reinstating the charge.” “A cardholder…

3rd Cir. Holds Settlement Offer as to Time-Barred Debt May Violate FDCPA

The U.S. Court of Appeals for the Third Circuit held that a collection letter sent to collect a time-barred debt that makes a “settlement offer” to accept payment “in settlement of” the debt could potentially violate the federal Fair Debt Collection Practices Act’s (FDCPA) general prohibition against “any false, deceptive, or misleading representation or means in connection with the collection of any debt.”  15 U.S.C. § 1692e. Accordingly, the Third Circuit vacated the ruling of the trial court dismissing the complaint, and remanded the matter for further proceedings. A copy of the opinion in Tatis v. Allied Interstate, LLC is available…

3rd Cir. Holds Defendants Arguing Class Not Ascertainable in TCPA Suit Must Still Produce Putative Class Member Info

The U.S. Court of Appeals for the Third Circuit recently reversed an order denying a motion to compel production of a marketing database of putative class members in a federal Telephone Consumer Protection Act (TCPA) lawsuit. In so ruling, the Third Circuit held that:  (1) defendants arguing that a class is not ascertainable should be required to produce information in its possession about putative class members during discovery, and (2) although affidavits from potential class members alone do not satisfy the ascertainability standard for class certification, such affidavits in combination with other records can meet the ascertainability standard. A copy of…

3rd Cir. Holds Single Unsolicited Automated Call Enough to Confer Standing

The U.S. Court of Appeals for the Third Circuit recently held that a consumer satisfied the concreteness requirement for constitutional standing and asserted a valid cause of action under the federal Telephone Consumer Protection Act (TCPA), where she alleged she received one unsolicited prerecorded phone call to her cell phone. Accordingly, the Third Circuit reversed the order of the trial court granting the defendant’s motion to dismiss. A copy of the opinion in Susinno v. Work Out World Inc. is available at:  Link to Opinion. The plaintiff consumer alleged that she received an unsolicited call on her cell phone from the…

Third Circuit Serves Up Double Fault in FDCPA, TCPA Decision

A recent decision from the Third Circuit Court of Appeals examines both the provision of consent under the federal Telephone Consumer Protection Act (TCPA) and the bona fide error defense for debt collectors under the federal Fair Debt Collection Practices Act (FDCPA). The decision has dire implications for debt collectors, creditors and any commercial enterprise using telephone technology and QR codes in communicating with customers. A copy of the decision in Daubert v. NRA Group, LLC is available at: Link to Opinion. First up is the TCPA. The trial court ruled that the collection agency violated the TCPA when it used…

3rd Cir. Holds HPA’s Auto-Term Date for PMI Uses Original Value, Not Modification Value

The U.S. Court of Appeals for the Third Circuit recently held that the calculation of the private mortgage insurance (PMI) automatic termination date under the federal Homeowners Protection Act, 12 U.S.C. § 4901 et seq., for modified loans is tied to the initial purchase price of the home, not the updated property value used for a borrower’s modification. In so ruling, the Third Circuit rejected several arguments set forth by trade group amici, including reliance on Fannie Mae Servicing Guidelines that allow mortgage servicers to use the estimated value of the property used for a loan modification to calculate the…

3rd Cir. Holds No TCPA Coverage Under Businessowners Insurance Policy

The U.S. Court of Appeals for the Third Circuit recently held that a businessowners insurance policy did not cover a class action judgment that arose out of unsolicited advertisement communications in violation of the federal Telephone Consumer Protection Act. A copy of the opinion in Auto-Owners Insurance Company v. Stevens & Ricci Inc. is available at:  Link to Opinion. A business was solicited by an advertiser who claimed to have a fax advertising program that complied with the TCPA, 47 U.S.C. § 227. The business allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. Six years later, a…

3rd Cir. Upholds Denial of Class Cert. on ‘Ascertainable Loss,’ Causation Deficiencies

The U.S. Court of Appeals for the Third Circuit recently affirmed a denial of class certification, holding that the plaintiffs’ theory was insufficiently supported by class-wide evidence to demonstrate the fact of damages whether on the issues of “ascertainable loss” or “causal relationship,” and failed to establish that common questions would predominate over individual questions. A copy of the opinion in Harnish v. Widener Univ. Sch. of Law is available at:  Link to Opinion. A group of former law students filed a class action against their law school, alleging that the school violated the New Jersey Consumer Fraud Act (NJCFA) and…

3rd Cir. Says State Law Claims Not Preempted by Bankruptcy Code’s Involuntary Case Provisions

The U.S. Court of Appeals for the Third Circuit recently held that the Bankruptcy Code does not preempt state law claims brought by non-debtors for damages related to the filing of an involuntary bankruptcy proceeding. A copy of the opinion in Rosenberg v. DVI Receivables XVII, LLC is available at:  Link to Opinion. The creditors in this action initiated state court litigation against limited partnerships controlled by the debtor, alleging money owed under various leases.  During the state court proceedings, the creditors filed an involuntary bankruptcy proceeding against the debtor and the debtor’s affiliated medical imaging companies, none of which were defendants in the…

3rd Cir. Rejects Borrowers’ Equitable Tolling Arguments in RESPA Captive Reinsurance Class Action

The U.S. Court of Appeals for the Third Circuit recently affirmed summary judgment against a putative class of borrowers who were allegedly victims of a captive reinsurance scheme by a lender and its affiliated reinsurance company. In so ruling, the Court held that the plaintiff borrowers’ claims were barred by the applicable statute of limitations, and the doctrine of equitable tolling did not apply because the plaintiff borrowers had not exercised reasonable diligence in investigating their potential claims. A copy of the opinion in Judith Cunningham v. M&T Bank Corp. is available at: Link to Opinion. The plaintiff borrowers financed the purchase…

3rd. Cir. TCPA Ruling Restricts ATDS but Gives Nod to ‘Potential Capacity’

In an Oct. 23 ruling, the Third Circuit Court of Appeals offered a mixed opinion that has the effect of both limiting and expanding the interpretation of automatic telephone dialing systems (ATDS), which can trigger a claim under the federal Telephone Consumer Protection Act. While the ruling poses increased risk for businesses that use dialers to contact customers, it also offers guidance on what can be done to reduce that risk. The opinion, Dominiguez, et. al v. Yahoo, Inc., is not precedential, meaning courts within the Third Circuit (New Jersey, Delaware, Pennsylvania and U.S. Virgin Islands) are not obligated to follow…