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In Purdue v. Kenny, -- S.Ct. -- (2010), Justice Alito authored an opinion holding that there is a strong presumption that the lodestar method of calculating attorneys' fees in fee shifting statutes (in this case, 42 USC 1988) sufficiently compensates the attorney, and that a multiplier, while allowed, is permissible only in rare cases.   While Purdue involved a civil rights… Read More

In Holster v. Gatco, Inc., --- S.Ct. ----, 2010 WL 1525998 (2010), the United States Supreme Court granted certiorari as to whether a TCPA matter could proceed in federal court notwithstanding New York’s prohibition against TCPA class action.  Judge Scalia concurred in the grant of certiorari, explaining:   The petition for a writ of certiorari is granted. The judgment is… Read More

In Elliott v. Credit Control Services, Inc., 2010 WL 1495402 (S.D.Cal. 2010) Judge Sabraw applied the more stringent pleading standard of Iqbal and Twombly to find that a debt collector’s use of the term “Warning Notice” with its debt validation letter neither overshadowed the debtor’s validation rights nor constituted an unfair debt collection practice.    In two recent opinions, the… Read More

In Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., --- S.Ct. ----, 2010 WL 1222272 (2010), Justice Scalia addressed the case where a medical provider brought putative class action against automobile insurer, alleging breach of contract, bad faith breach of contract, and violation of New York law in failing to pay statutory interest penalties on overdue payments of insurance… Read More

In McCarther-Morgan v. Asset Acceptance, LLC, 2010 WL 1417868 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit affirmed Bankruptcy supremacy over the FDCPA and Rosenthal Act, explaining:    Betty Jean McCarther-Morgan appeals the dismissal of her adversary action against Asset Acceptance, LLC. McCarther-Morgan alleges violation of the Fair Debt Collection Practices Act (“FDCPA”) and the California Rosenthal… Read More

In Membrila v. Receivables Performance Management, LLC 2010 WL 1407274 (S.D.Cal.), Judge Gonzalez found that a consumer properly pleaded a claim against a debt collector for the manner of recording the collection calls, explaining:   California Penal Code § 632, on the other hand, does apply to recording by a participant to a conversation. Section 632 provides a civil remedy… Read More

In Poulin v. Balise Auto Sales, Inc. 2010 WL 1370862 (D.Conn.), Judge Haight dismissed a TILA claim against a car dealer and it’s finance company assignee because it failed to state a claim.  The allegations were that   Balise and ACE have acted in concert in selling motor vehicles pursuant to retail installment contracts at inflated cash prices to consumers… Read More

The FTC issued its annual report on the FDCPA, accompanied by the following press release: At a time when many consumers are facing debt problems, the Federal Trade Commission has issued its annual report detailing the steps the agency has taken to protect consumers from unfair, deceptive, and abusive debt collection practices and educate the public on the subject. The 32nd… Read More

On March 22, 2010, the FCC issued it's notice of proposed rulemaking, a copy of which is here.  This competes with the FTC's efforts to regulate the TCPA, too.  The FCC's version includes regulations which, if effectuated, would prohibit a person from initiating any telephone call using an automatic telephone dialing system or an artificial or prerecorded voice to a consumer’s… Read More

In Winberry v. United Collection Bureau, Inc., 2010 WL 996144 (M.D.Ala. 2010), Judge Albritton addressed the debt collector's summary judgment motion on a number of claims made by the Plaintiffs, among them that the the defendant's 33 calls in 1 month did not constitute harassment under the FDCPA.  Judge Albritton rejected the debt collector's claim, explaining that   Viewing this testimony… Read More

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