In Wakefield v. ViSalus, Inc., No. 21-35201, 2022 U.S. App. LEXIS 29228 (9th Cir. Oct. 20, 2022), the Court of Appeals held that aggregation of the TCPA’s penalties to $925 million raised due process concerns. ViSalus last argues that the Due Process Clause of the Fifth Amendment requires a reduction of the $925,220,000 statutory damages award. HN8 Whether a damages… Read More
In Ramirez v. Midland Credit Mgmt., Inc., No. 22-cv-02772-VC, 2022 U.S. Dist. LEXIS 191894 (N.D. Cal. Oct. 20, 2022), Judge Chhabria dismissed a Rosenthal Act case premised on the sale of the debt. Ramirez alleges that Capital One violated section 1692e of the FDCPA, which prohibits debt collectors from using "false, deceptive, or misleading representation or means in connection with… Read More
You have a pretty good idea where the decision is going to go when it starts with this sentence from James Madison in the Federalist Papers: An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced… Read More
In Collectional Pros., Inc. v. McDonough Dist. Hosp., No. 4:22-cv-04078-SLD-JEH, 2022 U.S. Dist. LEXIS 187320, at *8 (C.D. Ill. Oct. 13, 2022), Judge Darrow found no federal question in an FDCPA Plaintiff's challenge to the propriety of a dunning letter that purported to follow Reg. F's model form. Though certainly a policy against abusive debt collection is important, the Court… Read More
In Loury v. Westside Auto. Grp., 2022-Ohio-3673, ¶¶ 28-32 (Ct. App.), the Court of Appeals found no error in a car dealer repossessing a vehicle after a 30-day contract period within which it was supposed to obtain financing. As previously stated, the parties' Conditional Delivery Agreement provides that Loury is entitled to take immediate possession of the car while Westside… Read More
In Hernandez v. Apple Auto Wholesalers of Waterbury LLC, 2022 U.S. Dist. LEXIS 179567, No. 3:17-cv-1857 (VAB) (Sept. 30, 2022), the district court addressed whether a finance company who re-tendered the contract back to the dealer remained liable under the FTC Holder Rule. After referring the case to the Connecticut Supreme Court, the District Court followed the Supreme Court's ruling that… Read More
In Chennette v. Porch.Com, Inc., No. 20-35962, 2022 U.S. App. LEXIS 28354, at *1-4 (9th Cir. Oct. 12, 2022), the panel reversed the district court's judgment dismissing a complaint, brought by 51 individuals who are home improvement contractors, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b) and (c); and remanded. GoSmith's and Porch.com's business model… Read More
In Young v. Midland Funding, Nos. A161843, A162784, 2022 Cal. App. LEXIS 843, at *33-41 (Ct. App. Oct. 7, 2022), the Court of Appeal held that the Rosenthal Act's incorporation of the FDCPA incorporates the FDCPA's strict liability standard. Young's failure to make a prima facie case that the Midland parties deliberately ignored their obligation to serve her draws into… Read More
Today, President Biden signed an Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities (E.O.) directing the steps that the United States will take to implement the U.S. commitments under the European Union-U.S. Data Privacy Framework (EU-U.S. DPF) announced by President Biden and European Commission President von der Leyen in March of 2022. The White House's press release… Read More
In Enriquez v. Sirius XM Radio, Inc., No. 1:21-CV-1240 AWI BAK, 2022 U.S. Dist. LEXIS 178999, at *13-14 (E.D. Cal. Sep. 30, 2022), Judge Ishii remanded a UCL public injunctive relief claim for lack of sufficient monetary controversy to support removal jurisdiction. Much of SXM's argument depends on valuing the injunction from its perspective, i.e. the cost of complying with… Read More
In Guzman v. Polaris Indus., No. 21-55520, 2022 U.S. App. LEXIS 27293, at *7 (9th Cir. Sep. 29, 2022), the Court of Appeals for the 9th Circuit held that a litigant could not bring his equitable UCL claim in federal court because he had an adequate legal remedy in his time-barred CLRA claim. We agree with the district court that… Read More
In Cent. Tr. Bank v. Branch, No. SC99297, 2022 Mo. LEXIS 221, at *15-18 (Sep. 13, 2022), the Missouri Supreme Court reversed lower courts' complaints about a Bank's post-repossession notices and vehicle disposition, finding that the Bank had properly disclosed a "dealers-only" auction as a private sale. The Bank asserts the circuit court erred in ruling the Bank did not… Read More
Today, the FFIEC issued an update to its October 2018 Cybersecurity Resource Guide. https://www.ffiec.gov/press/pdf/FFIECCybersecurityResourceGuide2022ApprovedRev.pdf The updated resource guide now includes ransomware-specific resources to address the ongoing threat of ransomware incidents. Read More
Ruling on a motion to dismiss a claim for violation of the California Consumer Privacy Act, the Hon. Mary M. Rowland of the United States District Court in the North District of Illinois, held: Defendants argue that [Plaintiff] fails to allege a specific action Defendants took or failed to take that breached a duty under the CCPA to maintain "reasonable"… Read More
In Espinoza v. Superior Court, No. B314914, 2022 Cal. App. LEXIS 816, at *10-17 (Ct. App. Sep. 27, 2022), the Court of Appeal found that the defendant's failure to pay an arbitrator's invoice within 30 days barred arbitration, period, even if no prejudice or if there was substantial compliance. The Court of Appeal stated. The parties do not dispute that… Read More
In Vigil v. Muir Med. Grp. Ipa, No. A160897, 2022 Cal. App. Unpub. LEXIS 5858, at *17-32 (Sep. 26, 2022), the California Court of Appeal affirmed denial of class certification in a CMIA data breach case because each classmember would have to prove that an unauthorized party viewed the confidential information. The data breach facts were as follows. Muir is… Read More
The U.S. Supreme Court has been asked to review the California Supreme Court's decision in Pulliam. A copy of the Petition for Certiorari can be found here: Petition for Certiorari. Read More
In Moore v. Centrelake Med. Grp., No. B310859, 2022 Cal. App. LEXIS 795, at *4-7 (Ct. App. Sep. 16, 2022), the Court of Appeal allowed a UCL claim to proceed in a data breach case. The data breach facts were as follows: Centrelake is a medical provider operating eight medical facilities in southern California. Prior to January 9, 2019, appellants… Read More
In In re Argon Credit Llc, Nos. 16-39654, 21-00048, 2022 Bankr. LEXIS 2543, at *8 (Bankr. N.D. Ill. Sep. 15, 2022), Judge Thorne found that a deceptive letter that causes a Plaintiff to pay sums that the Plaintiff otherwise would not owe (in this case, because the debts were void or discharged by bankrutpcy) confers standing. Plaintiffs next claim is… Read More
AB 2311 on GAP Protection has been approved by the California Governor, and sent to the Secretary of State for enrollment. The bill is described as This bill would establish provisions to govern the offer, sale, provision, or administration, in connection with a conditional sale contract, of a guaranteed asset protection waiver (GAP waiver), defined to mean an optional contractual… Read More
