In Widjaja v. JPMorgan Chase Bank, N.A., No. 20-55862, 2021 U.S. App. LEXIS 37512, at *1-2 (9th Cir. Dec. 20, 2021), the Court of Appeals affirmed in part and reversed in part the district court's dismissal of an action under the Electronic Fund Transfer Act against JPMorgan Chase Bank. The Court of Appeals summarized its holding as follows: Reversing the… Read More
In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2021 U.S. Dist. LEXIS 239583, at *23-30 (N.D. Cal. Dec. 14, 2021), Judge Spero granted summary judgment to a TCPA defendant on the basis that no ATDS was used. Based on the undisputed facts relating to Textedly's functionality, Plaintiff does not dispute that the text messages at issue in this case were not… Read More
In Bbbb Bonding Corp. v. Caldwell, No. A162453, 2021 Cal. App. LEXIS 1100, at *2-4 (Ct. App. Dec. 29, 2021), the Court of Appeal found that bail bond premium financing agreements are "consumer credit contracts". This appeal requires us to interpret a long-standing consumer protection statute in a novel context: whether the requirement under Civil Code section 1799.91 that notice… Read More
In Lee v. K.B.R., Inc., No. A159980, 2021 Cal. App. Unpub. LEXIS 8047, at *15-17 (Dec. 22, 2021), the Court of Appeal found that the CLRA did not cover post-origination account servicing, such as credit reporting. As to her CLRA claim, Lee argues that the trial court erred in concluding that the statute did not apply to KBR. The CLRA… Read More
In Raphael Aus. v. Alorica, Inc., No. 2:20-cv-05019-ODW (PVCx), 2021 U.S. Dist. LEXIS 240677, at *5-6 (C.D. Cal. Dec. 16, 2021), Judge Wright dismissed a TCPA claim but allowed a Rosenthal Act claim to proceed. As to the TCPA claim, Judge Wright held: The parties dispute whether alleging that a system calls a prepopulated list of customers or clients is… Read More
In Flores v. Westlake Servs., No. B308288, 2021 Cal. App. Unpub. LEXIS 7876, at *13-14 (Dec. 16, 2021), the Court of Appeal found in an unpublished decision that the FTC Holder did not cap attorneys' fees. The Pulliam case, on which the Court of Appeal relied, is on appeal to the California Supreme Court. Upon considering these factors, Pulliam concluded the FTC's… Read More
In Brown v. DirecTV, LLC, No. CV 13-1170 DMG (Ex), 2021 U.S. Dist. LEXIS 231014, at *15-23 (C.D. Cal. Dec. 1, 2021), Judge Gee discussed how wrong number codes might impact class certification. But that does not mean that Plaintiffs' procedure is otherwise improper—if done in the proper sequence. The Class is defined to include only non-customers, and DirecTV has… Read More
In Romoff v. GM LLC, No. 21-cv-00938-WQH-BGS, 2021 U.S. Dist. LEXIS 231369, at *9 (S.D. Cal. Dec. 2, 2021), Judge Hayes dismissed a complaint alleging that a vehicle manufacturer's disclosure of a destination charge was deceptive because it did not also disclose that such charge contained a profit element. Plaintiffs allege that by calling the charge a "Destination Charge," GM… Read More
In In re Portfolio Recovery Assocs., LLC, No. 11md02295 JAH - BGS, 2021 U.S. Dist. LEXIS 216747, at *32-34 (S.D. Cal. Nov. 9, 2021), Judge Houston denied TCPA plaintiffs' request for further discovery from the dialer manufacturer on whether its product was an ATDS. On May 27, 2021, this Court granted Plaintiffs' motion seeking to reopen discovery for the limited… Read More
In Canesco v. Ford Motor Co., No. 3:21-cv-00425-BEN-RBB, 2021 U.S. Dist. LEXIS 213644, at *32-33 (S.D. Cal. Nov. 4, 2021), Judge Benitez engaged in a thorough analysis of Song-Beverly's remedies in order to determine whether the amount in controversy required for federal jurisdiction was satisfied. The Court finds that this purchase price must be reduced by both the amount of… Read More
On October 27, 2021, the Federal Trade Commission ("FTC") announced important updates to the Gramm-Leach-Bliley Act's (the "Act") primary consumer protection rules. Enacted in 1999, the Act implemented regulations on financial institutions with regard to consumer privacy and data security concerns. It includes two primary parts, or "rules": the Privacy Rule and the Safeguards Rule. The Privacy Rule limits disclosure… Read More
Over a strong dissent, the 11th Cir. Panel that issued the Hunstein decision affirmed the prior decision, holding "(1) that the violation of § 1692c(b) alleged in this case gives rise to a concrete injury in fact under Article III, and (2) that the debt collector’s transmittal of the consumer’s personal information to its dunning vendor constituted a communication “in connection… Read More
Governor Gavin Newson approved SB 531 on October 4, 2021. The bill sponsored by Senator Bob Wieckowski (D-Fremont) allows consumers to request verification that debt collectors collecting on delinquent debts have the authority to collect a debt and also prohibits a debt collector from making any written statements to a debtor in an attempt to collect a debt unless the… Read More
Smith v. Trans Union LLC, No. 20-4233, 2021 U.S. Dist. LEXIS 198812 (E.D. Pa. Oct. 14, 2021), Judge Savage dismissed an FCRA case premised on an alleged inconsistency in reporting an account as closed with a zero balance but also a past due balance. The issue in these Fair Credit Reporting Act (FCRA) actions is whether a consumer reporting agency's… Read More
In Estate of O'Shea v. Am. Solar Sols., Inc., No. 14cv894-L-RBB, 2021 U.S. Dist. LEXIS 199171 (S.D. Cal. Oct. 15, 2021), Judge Lorenz substituted a deceased TCPA Plaintiff’s estate as Class Representative. Next, substitution may be made by a successor only if the claim is not extinguished by the death of the named party. Fed.R.Civ.P. 25(a)(1). The issue of survivability… Read More
On October 6, 2021, Governor Newsom signed several new bills into law: AB 1391 Adds section 1724 to the Civil Code and makes it unlawful for anyone to sell or sell access to data that was unlawfully obtained. Similarly, it is unlawful for anyone to buy or use data that they know, or should know, was unlawfully obtained. AB 694 … Read More
In Maag v. United States Bank Nat'l Ass'n, No. 21cv31-H-LL, 2021 U.S. Dist. LEXIS 196307 (S.D. Cal. Oct. 12, 2021), Magistrate Lopez ordered production, subject to protective measures, of class discovery in a data breach case. The Court addressed the standards for pre-certification class discovery. "The propriety of a class action cannot be determined in some cases without discovery, as… Read More
The CFPB announced that as part of its overall CMS assessment, the CFPB may evaluate the technology controls of an institution and its service providers. Institutions within the scope of the CFPB’s supervision and enforcement authority include both depository institutions and non-depository consumer financial services companies. These institutions operate in a dynamic environment influenced by challenges to profitability, increased focus on… Read More
In Hogans v. Charter Communs., Inc., No. 5:20-CV-566-D, 2021 U.S. Dist. LEXIS 182992, at *22-27 (E.D.N.C. Sep. 24, 2021), Judge Dever applied AAPC retroactively, and examined the various options for applying AAPC. In AAPC, a majority of the Court left unanswered the question of retrospective liability under section 227(b)(1)(A)(iii) for the time period in which it was unconstitutional. Three possible… Read More
In Moura v. Cannon, No. 4:17-40166-TSH, 2021 U.S. Dist. LEXIS 184736, at *1-3 (D. Mass. Sep. 27, 2021), Judge Hillman dismissed a personal injury claim against a lessor based on Graves Amendment pre-emption. The following facts are undisputed unless otherwise stated. On December 14, 2016, John Cannon ("Cannon") was driving a tractor-trailer on Interstate 35 in Oklahoma when he crashed… Read More
