Public Accommodation/ADA Class Action Lawsuits Surge To Top Of Weekly Class Action Filings In California State And Federal Courts

Class action defense attorneys in California will be confronting a new wave of public accommodation/ADA (Americans with Disabilities Act) cases, supplanting new labor law class actions by a substantial margin. In an effort to assist class action defense attorneys in anticipating the claims against which they may have to defend, we provide weekly, unofficial summaries of the legal categories for new class actions filed in California state and federal courts in the Los Angeles, San Francisco, San Jose, Sacramento, San Diego, San Mateo, Oakland/Alameda and Orange County areas.

Class Actions In The News Uncategorized

15 U.S.C. § 1681u – Disclosures to FBI for Counterintelligence Purposes: Statutory Provisions for the Class Action Defense Lawyer Who Defends Class Actions Brought Under the FCRA (Fair Credit Reporting Act)

As a resource for class action defense attorneys who defend against class actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress enacted special rules governing the disclosure of consumer information to the FBI for purposes of counterintelligence, as set forth in Section 1681u which provides:

§ 1681u. Disclosures to FBI for counterintelligence purposes

(a) Identity of financial institutions.

Notwithstanding section 1681b of this title or any other provision of this title, a consumer reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of all financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer maintains or has maintained an account, to the extent that information is in the files of the agency, when presented with a written request for that information, signed by the Director of the Federal Bureau of Investigation, or the Director’ s designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director, which certifies compliance with this section. The Director or the Director’s designee may make such a certification only if the Director or the Director’s designee has determined in writing, that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(b) Identifying information.

Notwithstanding the provisions of section 1681b of this title or any other provision of this title, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or the Director’s designee, which certifies compliance with this subsection. The Director or the Director’ s designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director may make such a certification only if the Director or the Director’ s designee has determined in writing that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

FCRA Class Actions Statutes & Rules Uncategorized

McKell v. Washington Mutual-Class Action Defense Cases: Defense Motion To Dismiss Class Action Improperly Granted As To Breach of Contract And UCL Claims Based On Federal RESPA Violations California Court Holds

California Court Holds as Matter of First Impression that RESPA Prohibits Lender from Marking Up Costs of Another Provider’s Services Without Providing Additional Services of its Own

Plaintiffs filed a putative class action lawsuit against Washington Mutual Bank in California state court alleging inter alia violations of California’s unfair competition laws (UCL), Consumers Legal Remedies Act (CLRA), and breach of contract. “The basis of all causes of action was defendants’ overcharging plaintiffs for underwriting, tax services, and wire transfer fees in conjunction with home loans. Defendants charged plaintiffs more for these services than defendants paid the service providers.” McKell v. Washington Mutual Bank, ___ Cal.App.4th ___, 2006 WL 2664130 (Cal.App. September 18, 2006) [Slip Opn., at 2]. Plaintiffs’ UCL claim was premised upon alleged violations of the California Residential Mortgage Lending Act (CRMLA) and the federal Real Estate Settlement Procedures Act (RESPA) and Regulations X, among other state and federal laws. Slip Opn., at 5. The trial court granted a defense motion to dismiss the class action complaint, presumably on the ground that the claims “turn on the alleged existence of an agreement requiring Washington Mutual to charge no more than pass-through costs for underwriting, tax services, and wire transfers,” _id._, at 3, which plaintiffs could not do. The California Court of Appeal affirmed in part and reversed in part. We do not here discuss those aspects of the trial court’s ruling that the divided appellate court opinion affirmed. Rather, we focus on the Court of Appeal’s holdings that plaintiffs had adequately pleaded UCL and breach of contract claims.

The appellate court first held that the trial court did not err “in requiring plaintiffs to plead a factual basis for implying an agreement by [the Bank] to charge only pass-though costs,” Slip Opn., at 8. But in analyzing the UCL claims, the Court of Appeal explained at page 10,

Class Action Court Decisions RESPA/TILA Class Actions Uncategorized

Cavin v. Home Loan Center-Class Action Defense Cases: Federal Fair Credit Reporting Act (FCRA) Prohibits Private Right Of Action For Violations Of § 1681m’s Disclosure Requirement Illinois District Court Holds

Illinois Federal Court Grants in Part Motion to Certify Class Action but Dismisses FCRA § 1681m Disclosure Violation Claim

Plaintiffs filed a class action against Home Loan Center alleging that it violated the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq., by accessing their credit. Cavin v. Home Loan Center, Inc., 236 F.R.D. 387 (N.D. Ill. 2006). The plaintiffs’ lawyer filed a motion for class certification, together with a motion to compel discovery; defense lawyers argued inter alia that FCRA does not permit private rights of action for alleged violations of the disclosure requirements imposed by FCRA § 1681m. The district court granted in part and denied in part both motions. The court also dismissed plaintiffs’ § 1681m claim, agreeing with defense attorneys that no such claim could be maintained.

The lawsuit arose out of three letters sent to plaintiffs by Home Loan Center concerning a “‘prescreened’ offer of credit [that] is based on information in your credit report indicating that you meet certain criteria.” Unless authorized by the consumer, the FCRA prohibits credit reporting agencies from disclosing consumer information unless “the request is in connection with a ‘firm offer of credit.’” Cavin, at 390 (citing 15 U.S.C. § 1681b(c)(1)(B)). Plaintiffs alleged that the letters were not “firm offers of credit” and, accordingly, the lender violated § 1681n, and they alleged further that the letters violated the disclosure requirements contained in § 1681m. Id. Plaintiffs sought certification of a class action under Rule 23(b)(3), which the district court granted for reasons summarized in the Note below.

Class Action Court Decisions FCRA Class Actions Uncategorized

Class Action Defense Cases-In re New Motor Vehicles: Federal Court Lacks Authority To Give “Preliminary Approval” To Proposed Settlement Of Class Action Maine District Court Holds

Maine Federal Court Denies Joint Motion for “Preliminary Approval” of Proposed Settlement of Class Action Finding that it Lacked Authority Under Rule 23 to Grant the Motion or to Make a “Preliminary Fairness Determination”

In connection with class action lawsuits against General Motors, Toyota, and other car companies, transferred to the District of Maine by the Judicial Panel on Multidistrict Litigation for pretrial purposes, the defense and plaintiff attorneys in the Toyota lawsuit requested that the federal court preliminarily approve a proposed settlement of the class action. In re New Motor Vehicles Canadian Export Antitrust Litig., 236 F.R.D. 53, 55 (D. Maine 2006). The district court denied the request, holding that “Rule 23 does not provide for ‘preliminary approval’ or a ‘preliminary fairness determination.’” Id. The court acknowledged that the Complex Litigation Manual uses that phrase to describe “what a court does in deciding to order notice to the class of a settlement,” but explained that while “it makes sense for a judge to say that a particular settlement has no chance of approval . . . there is criticism of calling this ‘preliminary approval.’” Id., at 55-56 (citations omitted).

Class Action Court Decisions Uncategorized

Class Action Defense Issues—Federal Trade Commission Publishes 2006 Annual Report on Fair Debt Collection Practices Act (FDCPA)

Defense attorneys frequently face class action lawsuits alleging violations of the federal Fair Debt Collection Practices Act (FDCPA), which prohibits abusive, deceptive or otherwise improper debt collection practices by third-party debt collectors. At the same time, however, the FDCPA permits reasonable efforts to collect legitimate debts. The Federal Trade Commission is one of several federal agencies with enforcement obligations under the FDCPA. The FTC has primary enforcement responsibility under the FDCPA, and it is charged with preparing an annual report for Congress summarizing its administrative and enforcement actions it during the prior year.

FDCPA Class Actions Uncategorized

Airborne Express Class Action Defense Case-Hicks v. Airborne Express: Illinois Appellate Court Affirms Summary Judgment In Favor Of Defense In Breach Of Contract Class Action

Carrier’s Contract Limited Liability for Late Package Deliveries to Another Free Delivery Justify Trial Court Order Granting Defense Motion for Summary Judgment in Putative Class Action

Plaintiff filed a putative class action against Airborne Express for failing to deliver packages on time, and sought as damages the difference between the value of the service he requested and the value of the service he received. Hicks v. Airborne Express, Inc., ___ N.E.2d ___, 2006 WL 2105657 (Ill.App. July 25, 2006). The defense moved for summary judgment on the grounds that the contract limited the customers’ damages for the carrier’s breach of its promise to deliver a package on time to another delivery free of charge, and that Airborne had provided plaintiff with that remedy. Slip Opn., at 2-3. The trial court agreed with the defense, “finding that the parties had agreed to an exclusive remedy, _i.e._, another Flight-Ready envelope, for Airborne’s breach of the contract to deliver [plaintiff’s] package by noon the next day.” _Id._, at 3. The appellate court affirmed.

Class Action Court Decisions Uncategorized

Intel Class Action Defense Case-Barbara’s Sales v. Intel: California Law Applies To Unfair Business Practice Class Action Against Intel And Nationwide Class Should Have Been Certified Illinois Court Holds

After Trial Court Held that Illinois Law Applies to Unfair Business Practice Class Action Against Intel and Certified Only a Statewide Class. Appellate Court Reversed and Held California Law Applies and Nationwide Class Should Have Been Certified

Purchasers of computers run by Intel’s Pentium 4 processors filed a nationwide class action in Illinois state court alleging claims for unfair business practices under California law and Illinois law based on the allegation that, contrary to its billion dollar marketing campaign, the Pentium 4 performed no better than the Pentium III. Barbara’s Sales, Inc. v. Intel Corp., __ N.E.2d __ (Ill.App. July 25, 2006). Defense attorneys opposed class certification in part on the grounds that Illinois law applied thus barring the two claims based on California law – one under California’s Consumer Legal Remedies Act (CLRA) and one under California’s Unfair Competition Law (UCL). The trial court agreed that Illinois law applied and denied class certification on the California-law claims. The trial court also found that Illinois law “could not be applied to a nationwide class action” and so certified only a statewide class under the Illinois Consumer Fraud and Deceptive Business Practices Act claim. Slip Opn., at 4-5. The appellate court reversed, rejecting defense arguments that California law should not be applied.

Certification of Class Actions Class Action Court Decisions Uncategorized

15 U.S.C. § 1681t – Relation to State Laws: Statutory Provisions for Defense Attorneys Who Defend Class Actions Brought Under the FCRA (Fair Credit Reporting Act)

As a resource for the class action defense lawyer who defends against class actions under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress provided for the relation to State laws in Section 1681t as follows:

§ 1681t. Relation to State laws

(a) In general.

Except as provided in subsections (b) and (c), this title does not annul, alter, affect, or exempt any person subject to the provisions of this title from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this title, and then only to the extent of the inconsistency.

(b) General exceptions.

No requirement or prohibition may be imposed under the laws of any State

(1) with respect to any subject matter regulated under

(A) subsection (c) or (e) of section 1681b of this title, relating to the prescreening of consumer reports;

(B) section 1681i of this title, relating to the time by which a consumer reporting agency must take any action, including the provision of notification to a consumer or other person, in any procedure related to the disputed accuracy of information in a consumer’ s file, except that this subparagraph shall not apply to any State law in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996;

(C) subsections (a) and (b) of section 1681m of this title, relating to the duties of a person who takes any adverse action with respect to a consumer;

(D) section 1681m(d) of this title, relating to the duties of persons who use a consumer report of a consumer in connection with any credit or insurance transaction that is not initiated by the consumer and that consists of a firm offer of credit or insurance;

(E) section 1681c of this title, relating to information contained in consumer reports, except that this subparagraph shall not apply to any State law in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996;

(F) section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies, except that this paragraph shall not apply

(i) with respect to section 54A(a) of chapter 93 of the Massachusetts Annotated Laws (as in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996); or

(ii) with respect to section 1785.25(a) of the California Civil Code (as in effect on the date of enactment of the Consumer Credit Reporting Reform Act of 1996);

(G) section 1681g(e) of this title, relating to information available to victims under section 1681g(e) of this title;

FCRA Class Actions Statutes & Rules Uncategorized

15 U.S.C. § 1681s-3 – Affiliate Sharing: Statutory Provisions for Attorneys who Defend Class Action Brought Under the FCRA (Fair Credit Reporting Act)

As a resource for class action defense attorneys who defend against class actions brought under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., we provide the text of the FCRA. Congress specifically addressed the issue of the sharing of consumer information among affiliates, providing as follows in Section 1681s-3:

§ 1681s-3. Affiliate sharing

(a) Special Rule for Solicitation for Purposes of Marketing

(1) Notice.

Any person that receives from another person related to it by common ownership or affiliated by corporate control a communication of information that would be a consumer report, but for clauses (i), (ii), and (iii) of section 1681a(d)(2)(A) of this title, may not use the information to make a solicitation for marketing purposes to a consumer about its products or services, unless—

(A) it is clearly and conspicuously disclosed to the consumer that the information may be communicated among such persons for purposes of making such solicitations to the consumer; and

(B) the consumer is provided an opportunity and a simple method to prohibit the making of such solicitations to the consumer by such person.

(2) Consumer Choice

(A) In general.

The notice required under paragraph (1) shall allow the consumer the opportunity to prohibit all solicitations referred to in such paragraph, and may allow the consumer to choose from different options when electing to prohibit the sending of such solicitations, including options regarding the types of entities and information covered, and which methods of delivering solicitations the consumer elects to prohibit.

(B) Format.

Notwithstanding subparagraph (A), the notice required under paragraph (1) shall be clear, conspicuous, and concise, and any method provided under paragraph (1)(B) shall be simple. The regulations prescribed to implement this section shall provide specific guidance regarding how to comply with such standards.

(3) Duration

(A) In general.

The election of a consumer pursuant to paragraph (1)(B) to prohibit the making of solicitations shall be effective for at least 5 years, beginning on the date on which the person receives the election of the consumer, unless the consumer requests that such election be revoked.

(B) Notice upon expiration of effective period.

At such time as the election of a consumer pursuant to paragraph (1)(B) is no longer effective, a person may not use information that the person receives in the manner described in paragraph (1) to make any solicitation for marketing purposes to the consumer, unless the consumer receives a notice and an opportunity, using a simple method, to extend the opt-out for another period of at least 5 years, pursuant to the procedures described in paragraph (1).

FCRA Class Actions Statutes & Rules Uncategorized