Pa. Judge Strikes Class Allegations in Bank of America Suit

Reed Smith attorneys secured a decertification of a putative class action asserted against Bank of America, N.A. in the U.S. District Court for the Eastern District of Pennsylvania on February 3, 2016.  The Honorable Petrese B. Tucker struck class allegations from a suit accusing Bank of America NA and co-defendant McCabe Weisberg & Conway, PC of charging unauthorized and illegal foreclosure-related attorneys’ fees. Specifically, Plaintiffs alleged that a foreclosure complaint filed in July 2012, which contained a flat fee for counsel fees was an improper demand for payment under their mortgage.  Arguing that such fees may not have been incurred at the time the foreclosure complaint was filed, Plaintiffs sought to represent a class of similarly situated Pennsylvania borrowers.

On August 11, 2014, Judge Tucker granted partial dismissal of several of Plaintiffs’ claims, including those brought under the Racketeer Influenced and Corrupt Organizations Act (RICO) and Fair Debt Collection Practices Act (FDCPA), as well as Act 6.   Although, the Judge did not dismiss Plaintiffs’ claims that Defendants violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL), the court’s most recent ruling held that applicable law precluded Plaintiffs from pursuing their UTPCPL claim on a class-wide basis.

Judge Tucker agreed with Defendants’ argument that the principle of justifiable reliance, which requires detailed consideration of a person’s reliance on an alleged misrepresentation, was too individualized and claim specific to allow class-wide certification:

[T]his court would need to know whether the payment was made after service of the foreclosure complaint, assume that putative plaintiff read the foreclosure complaint and believed it to be true, and further assume that any partial payment made by the putative plaintiff was meant to be applied to the attorneys’ fees listed and not to any other amounts. These are individual inquiries unsuitable for class adjudication. Allowing certification to proceed on the mere proof of payment would, in sum, amount to an outright presumption of justifiable reliance.

Davis v. Bank of Am., N.A., 2016 U.S. Dist. LEXIS 13333, *16 (E.D. Pa. Feb. 3, 2016).  The court also held that a class certification was not practicable due to the highly individualized findings needed to determine ascertainable loss, another element of a prima facie case under the UTPCPL.  As such, Plaintiffs were unable to satisfy the predominance requirement for class certification – although their UTPCPL claim was permitted to go forward on an individual basis.     

Reed Smith Issues Report on Marketplace Lending

Reed Smith has issued the first comprehensive white paper discussing the comments submitted in response to Treasury’s July 2015 Request for Information (RFI) on marketplace lending. The RFI, entitled “Public Input on Expanding Access to Credit through Online Marketplace Lending,” sought public comment on the FinTech business models applicable to online lending, the potential for marketplace lending to expand access to credit, and how the financial regulatory framework should evolve to support the safe growth of this industry. The RFI drew responses from FinTech companies, banks, industry and consumer groups, politicians, agencies, and other concerned parties. Reed Smith’s FinTech team reviewed and summarized the comments, and is proud to provide this FinTech Report on the key responses, and the themes, arguments and proposals contained in its pages.

Download full report here: FinTech Report – Summary of Responses to Treasury RFI on Marketplace Lending

CFPB Asserts No SOL

On January 15, 2016, the CFPB Office of Enforcement asserted that claims pursued in administrative enforcement actions are not subject to the three-year statute of limitations set forth in the Consumer Financial Protection Act, signaling that the agency is willing to target long-ago violations when seeking restitution and penalties. The CFPA — also known as Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act — is the statute that empowers the CFPB to administratively enforce the federal consumer financial laws.

The Integrity Advance enforcement proceeding involves conduct that allegedly stopped in December 2012. The CFPB alleged that a payday lender misled consumers by disclosing that loans could be repaid in a single payment when, in fact, the loans would roll over automatically because payments were applied to finance charges instead of to principal. The CFPB also alleged violations of the Electronic Fund Transfer Act, the Truth in Lending Act, and the CFPA’s prohibition of unfair, deceptive, or abusive acts or practices against the lender.

The CFPB put forth its statute of limitations argument in a brief opposing a motion to dismiss filed in its administrative proceeding against Integrity Advance, LLC. In making this argument, the CFPB is breaking new legal ground. Previously, the agency had argued that the CFPA SOL does not apply to claims brought by the CFPB under its CFPA administrative action authority alleging violations of the Real Estate Settlement Procedures Act. Now, it is extending that argument to claims alleging violations of the CFPA’s prohibition of unfair, deceptive, or abusive acts or practices.

Read more at our client alert here.

Settlement Offer Does Not Moot Class Action

In a 6-3 decision issued today, the Supreme Court ruled that defendants cannot rely on a strategic offer of judgment to the named plaintiff to moot the claims of the putative class.

After an unfavorable Ninth Circuit decision, U.S. Navy contractor Campbell-Ewald asked the high court to consider, inter alia, whether defendants can strategically offer individual plaintiffs full relief at the outset of the litigation to avoid a long court battle or a potential multi-million dollar class settlement.

The opinion, delivered by Justice Ginsburg, held “in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.”

The Rule 68 strategy, which had been endorsed by the Seventh Circuit and certain district courts at various points in time, had been used by class action defendants to help combat the wave of TCPA litigation over the past few years. But the Court’s decision today is likely to have wide-reaching consequences in consumer class action cases, particularly cases that involve statutory penalties that can escalate quickly.

The full decision can be read here: Campbell-Ewald v. Gomez Slip Opp.Campbell-Ewald v. Gomez Slip Opp

Definition of an Autodialer a Question for the Jury

A recent opinion from the Southern District of California suggests that now there is no bright-line rule regarding what qualifies as human intervention for purposes of determining whether an autodialer was used. In denying a motion for summary judgment filed by Yahoo, the court found that:

“there are genuine issues of fact as to whether the [Messenger platform] is an ATDS. A reasonable jury could conclude that the welcome text is produced and sent by an ATDS as the term is defined in the TCPA.”

Zeroing in on the FCC’s recent order describing the ATDS as “case-by-case” decision, the court entirely ignored the crux of the FCC’s directive on autodialers: “the basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Yahoo’s Messenger platform required the users to initiate the transmission of each welcome message, and the platform could not send thousands of welcome messages in a short period of time without the action of individual users. Thus, it should clearly fall outside the definition of an ATDS. This opinion is another example of the  unpredictability of litigation. We hope other courts will continue to see that individual human intervention for each call or message is all that is needed to avoid mischaracterizing the telephone or text messaging equipment as an ATDS.

Read more at our client alert here, drafted by Raymond Y. Kim, Zachary C. Frampton, Henry Pietrkowski, and Abraham J. Colman.

Supreme Court to Decide False Claims Act “Implied Certification” Theory

On December 4, 2015, the U.S. Supreme Court granted certiorari in Universal Health Services, Inc. v. United States ex rel. Escobar, No. 15-7, to review the so-called “implied certification” theory of liability under the federal False Claims Act (FCA). That theory, which both the federal government and private “relators” have invoked with increasing frequency, finds an FCA violation for those who seek funds from the government while in violation of a legal or contractual obligation—even when they have not expressly verified their compliance with that legal or contractual obligation. Given the breadth of circumstances in which the implied certification theory has been, and can be, applied, the Court’s ruling in Universal Health Services could bring far-reaching changes to the scope of FCA liability.

Read more at our client alert here.

Supreme Court re Arbitration : Go Ask Your Congress

With its last opinion of 2015, the Supreme Court added DIRECTV v. Imburgia to the ever-growing line of decisions reversing California courts refusal to enforce provisions in arbitration agreements that barred class arbitration. Imburgia presents the Court’s second look at the hostility of California law to waivers of class wide arbitration. Three years ago, after California courts refused to enforce provisions in arbitration agreements that barred class arbitration (on the ground that the provisions were unconscionable), a closely divided court in AT&T Mobility v. Concepcion disagreed, holding that the Federal Arbitration Agreement (“FAA”) preempted the California doctrine invalidating those waivers.

Imburgia involves the agreements that petitioner DIRECTV was using after California adopted the prohibition on class action waivers, but before the Supreme Court rejected that prohibition. Trying to avoid classwide arbitration, the form agreement at that time included a provision indicating that “if the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire [arbitration provision] is unenforceable.” After Concepcion, DIRECTV assumed that it could resume arbitrations in California. But in this case the California Court of Appeal held that the provision still barred arbitration, reasoning that whatever the Supreme Court might have said about federal law, the law of California (“your state”) would find the agreement to dispense with class arbitration unconscionable.

The Supreme Court reversed the California Court of Appeal, holding that the Federal Arbitration Agreement preempted the California doctrine invalidating those waivers. The practical implications of the ruling are that opponents of bans on class actions are not going to find refuge in the Supreme Court. The opinion sends message that there’s no way to get avoid FAA preemption other than Congress acting. Read more on SCOTUSblog.

Target “Data Breach Task Force” Documents Deemed Privileged

The Minnesota magistrate judge presiding over discovery in the litigation seeking to hold Target Corp. liable for the retailer’s 2013 data breach issued an order denying the motion by a plaintiff class of about 9,000 banks to compel production of certain documents relating to Target’s internal investigation that were withheld on privilege grounds.

Target withheld production of the details of its investigation conducted by a “Data Breach Task Force” (DBTF) under the attorney-client privilege or work product doctrine, due to the extraordinary nature of the breach that placed it outside the “regular” business functions or “ordinary work”. Instead, Target argued, the communications were privileged because the DBTF “facilitated Counsel’s investigation and provision of legal advice.”

On October 23, 2015, Magistrate Judge Jeffrey Keyes issued an order largely denying plaintiff’s motion to compel. Judge Keyes explained that Target effectively established that the purpose of the DBTF was to educate its lawyers so that they could provide legal advice.  The case is In re: Target Corporation Customer Data Security Breach Litigation, No. 0:14-md-02522 (D. Minn.). Read more at our client alert available here.

What has the CFPB said about that?

As an early “holiday gift,” to help you more easily search for a particular piece of guidance from the CFPB, we’ve put together two CFPB guidance documents. The first is a compilation of all nine issues of the CFPB’s Supervisory Highlights, from 2012 to 2015. The second is a compilation of all the CFPB’s Bulletins, as of December 1, 2015.

CFPB Supervisory Highlights 2012-2015     CFPB Bulletins 2011-2015

We hope these are useful for quick searches for recent guidance from the CFPB.

Refreshing Dismissal of ‘Silly’ TCPA Claim Against PayPal

On Thursday, October 29, 2015, the Ninth Circuit affirmed summary judgment of a proposed class action accusing PayPal of violating the Telephone Consumer Protection Act by sending users unsolicited text messages, following a hearing in which a judge said the claims were among the “silliest” he’s encountered. Opinion is available here: Roberts v. Paypal.

Plaintiff David Roberts had argued that when he gave the online payment site his phone number, he wasn’t giving it consent to send him a welcoming text message, which he said fell outside a Federal Communications Commission provision that allows businesses to send texts that are “normal business communications.” In their memorandum released Thursday, the circuit justices disagreed.

“Roberts’ contention that the FCC’s 1992 interpretation limits the consent expressed by release of a phone number to ‘normal business communications’ or ‘normal, expected or desired communications,’ is without merit … ,”  the Ninth Circuit memorandum states. “[I]t is unclear how the text message at issue could be anything other than a normal business communication.”
At that hearing, Ninth Circuit Judge Richard Clifton called the controversy over PayPal’s texted greeting “one of the silliest claims I’ve ever heard.”

After the FCC’s omnibus ruling drastically increasing the scope of the TCPA’s definition of autodialer, TCPA litigation has become a fight about consent. The Court’s ruling in Roberts v. Paypal represents a common sense approach to consent. It gives companies who contact their customers via telephone some repose that they do not need to split hairs on whether consent applies to some calls but not other types of calls. Let’s hope this approach establishes that consent is consent in the context of TCPA.

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