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On June 29, 2022, the CFPB issued an Advisory Opinion on collection of "convenience fees".  A copy of the Advisory Opinion can be found here. Severson has been following the CFPB's evolving position(s) and regulation of "convenience fees".   CFPB-2017-S&WConvenience-Fees-Bulletin; 2018-AmericanBarAssociation-Article-on-Convnience-Fees Referring to its 2017 Compliance Bulletin, the CFPB stated: For example, in 2017, the CFPB issued a compliance bulletin… Read More

In Snyder v. Finley & Co., L.P.A., No. 21-3997, 2022 U.S. App. LEXIS 16512, at *1 (6th Cir. June 15, 2022), the Court of Appeals for the 6th Circuit explained how, and when, a debt collector can be found liable when losing litigation on the debt itself; i.e. does the debt collector ipso facto violate the FDCPA when it loses… Read More

In Gilbert v. TrueAccord, Case No. 21-cv-485, 2022 U.S. Dist. LEXIS 111328 (N.D. Ill. June 23, 2022), Judge Alonso granted partial summary judgment to a debt collector on the consumer's claim that the debt collector violated her lawyers C&D demand by e-mailing on a debt after the lawyer had advised of the lawyer's representation in connection with another debt. Furthermore, the… Read More

On June 24, the FTC announced that purportedly is designed to fight deceptive advertising, crack down on bait-and-switch marketing, and put a stop to hidden add-on charges when consumers go vehicle shopping.  According to the Notice posted in the Federal Register, FTC 6.23.22 Auto Rule NPRM, the NPR purports to The Federal Trade Commission (“FTC” or “Commission”) seeks comment on… Read More

In Lynch v. Collins, No. 20 C 02477, 2022 U.S. Dist. LEXIS 106700, at *5-7 (N.D. Ill. June 15, 2022), Judge Durkin held that the Graves Amendment does not immunize employer/employee relationships, but you've actually got to have facts to support the claim. Plaintiffs argue their vicarious liability claims for negligence and loss of consortium are also outside the Graves… Read More

In  Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that the FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014)… Read More

In Mina v. Red Robin Int'l, Inc., Civil Action No. 20-cv-00612-RM-NYW, 2022 U.S. Dist. LEXIS 104423, at *10-16 (D. Colo. June 10, 2022), Judge Wang dismissed a TCPA case at the pleadings stage for absence of an ATDS under Duguid. [Defendant] maintains that Duguid does not foreclose a conclusion that the text messaging program used by Defendants constitutes an autodialer under… Read More

In Barnett v. First Nat'l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 104029, at *5-8 (W.D. Ky. June 10, 2022), Judge Boom denied a motion to reconsider a finding that the TCPA defendant's LiveVox system was not an ATDS. In his Motion, Barnett claims that the Court failed to consider FNBO's use of the TWX system in… Read More

In Jackin v. Enhanced Recovery Co., LLC, No. 2:21-cv-00234-SMJ, 2022 U.S. Dist. LEXIS 104273, at *5-6 (E.D. Wash. June 10, 2022), Judge Mendoza adopted the Hunstein analysis in determining whether debt collectors can share consumer debt-related information with commercial mail vendors. Upon review of the record, the Court finds that Plaintiff has adequately alleged a violation of 15 U.S.C. § 1692c(b)… Read More

In United States v. Thompson, No. CR19-159-RSL, 2022 U.S. Dist. LEXIS 101558, at *3-7 (W.D. Wash. June 7, 2022), Judge Lasnik denied the Government's Motion in Limine to exclude evidence regarding cyber-security vulnerabilities at the corporate victim or other victim entities that are unrelated to the specific vulnerability that defendant allegedly exploited in the case at hand The government moves… Read More

In Williamson v. Irving K Motor Co. LLC, Civil Action No. 3:21-CV-1599-L-BH, 2022 U.S. Dist. LEXIS 101052, at *15-18 (N.D. Tex. June 7, 2022), Judge Ramirez denied a motion to dismiss a TCPA claim brought on the argument that SCOTUS' AAPC rendered the TCPA unenforceable from 2015 to 2020. A small number of district courts, including the Eastern Districts of Texas… Read More

In Thompson v. Exeter Fin. Corp., No. 2021AP219, 2022 Wisc. App. LEXIS 494, at *1-3 (Ct. App. June 8, 2022), the Court of Appeal affirmed summary judgment against a consumer who alleged breach of the peace during the course of an attempted repossession. On June 4, 2017, repossession agents attempted to repossess Thompson's car. Thompson's family members protested and told… Read More

In Demesa v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK, 2022 U.S. Dist. LEXIS 98511, at *8-9 (D. Nev. June 1, 2022), Judge Dorsey rejected a TCPA Plaintiff's attempted end-around Duguid, where the Plaintiff argued that a standard text message fell within section 47 U.S.C. § 227(b)(1)(B)'s prohibition against using "artificial or prerecorded voice" without consent. DeMesa's alternative theory of liability fares no better.… Read More

In Javier v. Assurance IQ, LLC, No. 21-16351, 2022 U.S. App. LEXIS 14951, at *3 (9th Cir. May 31, 2022), the Court of Appeals for the 9th Circuit held that "[t]hough written in terms of wiretapping, Section 631(a) applies to Internet communications."   The facts and procedure below were as follows: Assurance is an insurance platform that owns and operates On this… Read More

On May 27, 20222, the California Privacy Protection Agency issued its first draft of Proposed Regulations under the California Privacy Rights Act.  The rulemaking timeline is unclear but we expect additional information at the upcoming June 8, 2022 board meeting (agenda:  The Proposed Regulations can be found here  High-level topics in the Proposed Regulations include: Restrictions on the Collection… Read More

In Melcher v. Titlemax of Tex., Inc., No. 3:21-cv-46, 2022 U.S. Dist. LEXIS 95414, at *11-13 (S.D. Tex. May 27, 2022), Judge Brown denied a motion to dismiss under the FDCPA filed by a repossession referral agency. MVTrac argues that despite the plaintiffs' allegations, it is neither a debt collector nor a skip-tracing company. Dkt. 29 at 7. Though there… Read More

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