Definitions Under Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692a): Statutory Language for the Defense Lawyer of FDCPA Class Action Lawsuits

As a resource for attorneys defending against class actions under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., we provide the text of the FDCPA. This article sets forth for the class action defense lawyer the definitions used in the FDCPA: >§ 1692a. Definitions As used in this subchapter– (1) The term “Commission” means the Federal Trade Commission. (2) The term “communication” means the conveying of information regarding a debt directly or indirectly to any person through any medium.

FDCPA Class Actions Statutes & Rules Uncategorized

15 U.S.C. § 1692 – Congressional Findings and Declaration of Purpose for the Fair Debt Collection Practices Act: Statutory Language for the Defense Lawyer of Class Action Lawsuits Under the FDCPA

As summarized in a separate article, Congress enacted the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., in 1978 for the purpose of establishing certain that ethical guidelines for the collection of consumer debts, and to provide debtors with a means for challenging payoff demands and determining the validity and accuracy of asserted debts. The FDCPA has been a well-spring for class action lawsuits since its inception, and the class action defense lawyer still confronts new twists to FDCPA claims.

FDCPA Class Actions Statutes & Rules Uncategorized

Class Action Certification Under Rule 23 Part III: Defense of Class Actions

Class Certification Under Rule 23 – Part III

The Categories of Rule 23(b)

In addition to establishing the Rule 23(a) requirements of numerosity, commonality and typicality, and demonstrating that the class members will be adequately represented, a plaintiff must meet also the provisions of Rule 23(b). Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1339 (9th Cir. 1976) (“In order for an action to be maintained as a class action under Fed.R.Civ.P. 23, the four requirements of rule 23(a) must be met, as well as the requirements of at least one of the subdivisions of rule 23(b).”).

Rule 23(b) provides:

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

The requirements of Rule 23 are mandatory. Thus, class certification requires that the prospective class representative satisfy the elements set forth in Rule 23(a), and demonstrate also that the provisions of Rule 23(b) are met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 152, 102 S.Ct. 2364 (1982) (reversing class certification for failure to analyze Rule 23 requirements).

Certification of Class Actions Uncategorized

Certification of Class Actions Under Rule 23 Part II: Class Action Defense Issues

Defending Class Actions: Certification Under Rule 23 Part II

The Prerequisites of Rule 23(a)

In defending a class action, the single most important motion facing a defendant is the plaintiff’s motion to certify a class. Rule 23(a) requires that the plaintiff demonstrate numerosity, commonality and typicality, and that the class members will be adequately represented, and must additionally demonstrate that the action satisfies Rule23(b).

The requirements of Rule 23 are mandatory. Thus, class certification requires that the prospective class representative satisfy the elements set forth in Rule 23(a), as well as the elements of Rule 23(b) (discussed in a separate article) be met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 152, 102 S.Ct. 2364 (1982) (reversing class certification for failure to analyze Rule 23 requirements).

Rule 23(a) of the Federal Rules of Civil Procedure provides:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Satisfying Rule 23(a)

Certification of Class Actions Uncategorized

Class Action Defense Issues–Alibrandi v. Financial Outsourcing

Debt Servicer Automatically Becomes Debt Collector Under FDCPA (Fair Debt Collection Practices Act) If Lender Previously Declared Loan In Default Second Circuit Holds

In 1978, Congress added Title VIII to the Consumer Credit Protection Act entitled the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq., as a line of defense between consumers and debt collectors. (Some states, such as California, have enacted parallel state laws, but those are outside the scope of this article.) Congress intended the FDCPA to establish certain ethical guidelines for the collection of consumer debts, and to provide debtors with a means for challenging payoff demands and determining the validity and accuracy of asserted debts. FDCPA has become fertile ground for class action lawsuits; in some of these class actions, the plaintiff’s lawyer has been so bold as to name law firms and attorneys as defendants, in addition to debt collectors. The lawyer who represents debt collectors must use care as the FDCPA has resulted in surprising rulings. One such surprising case, at least for the defense team, is Alibrandi v. Financial Outsourcing Serv., Inc., 333 F.3d 82 (2d Cir. 2003), a New York putative class action.

By way of background, the FDCPA mandates that debt collectors include certain warnings in their first correspondence with debtors. 15 U.S.C. § 1692e(11). For example, the debt collector must inform the debtor of the name of the creditor, the amount of the debt, and the debtor’s right to challenge the validity of the debt. See 15 U.S.C. § 1692g(a). It is a general rule, however, that these warnings need be provided only by a “debt collector” – they need not be provided by a “debt servicer.” See Alibrandi, at 83 (“Significantly, if Financial Outsourcing were a debt service provider, its correspondence with debtors would not have to include the statutory warnings.”).

Class Action Court Decisions FDCPA Class Actions Uncategorized

International Airport Centers v. Citrin: Employment Issues

“Transmission” Under CFAA (Computer Fraud and Abuse Act) Includes Deleting Files From Company Laptop Computer To Hide Improper Conduct

On March 8, 2006, the Seventh Circuit Court of Appeals considered whether an employer could pursue an action under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, against a former employee for securely erasing files from a company laptop computer before quitting and going into competition with his former employer. International Airport Centers, L.L.C. v. Citrin, 440 F.3d 418 (7th Cir. 2006). The provision at issue states that one violates CFAA if one “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer,” which includes company laptop computers. 18 U.S.C. § 1030(a)(5)(A)(i); Citrin, at 419. In his defense, the employee argued that his action of simply deleting computer files did not fall within the class of acts that would constitute a “transmission” within the meaning of CFAA. The district court agreed and dismissed the employer’s lawsuit. Id., at 418-19.

Class Action Court Decisions Employment Law Class Actions Uncategorized

Verizon Implements New Policies In Face Of Defense Of California Class Action Regarding Cancellation Fees

Both the Los Angeles Times and Yuki Noguchi of the Washington Post report today on yesterday’s announcement by Verizon that it will soon implement a fundamental change in its cancellation fee policy for cellular telephone subscribers. In the face of a California class action that the Times reports seeks “to recover early cancellation fees from Verizon Wireless and Sprint Nextel,” the company will calculate the early termination fee based on the proportional amount of time remaining on the subscription agreement.

Class Actions In The News Uncategorized

Motions to Defeat Diversity Jurisdiction: Class Action Defense Issues

28 U.S.C. § 1447(e) Once a class action has been removed to federal court based on diversity jurisdiction, a plaintiff may seek to destroy diversity by naming additional defendants. Any such attempt would fall squarely within the ambit of 28 U.S.C. § 1447(e), which provides as follows: If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.

Class Actions In The News Removal & Remand Uncategorized

Motions to Remand: Class Action Defense Issues

28 U.S.C. S 1447 – 30 day Time Limit

Defendants in class actions often remove their case to federal court whenever possible. Plaintiffs invariably seek to remand class actions to state court. Thus, once a class action has been removed to federal court, it can be expected that plaintiff’s counsel will file a motion to remand the matter to state court. Remand of cases to state court is governed by 28 U.S.C. S 1447(c). “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal,” 28 U.S.C. S 1447(c). However, “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.

Thus, like its removal counterpart (28 U.S.C. S 1446(b), which requires removal within 30 days of receipt of the necessary pleading or other paper), Section 1447(c) requires that any motion to remand – except one based on lack of subject matter jurisdiction – “must be made within 30 days after the filing of the notice of removal.” The United States Supreme Court summarized the requirement this way:

Once a defendant has filed a notice of removal in the federal district court, a plaintiff objecting to removal “on the basis of any defect in removal procedure” may, within 30 days, file a motion asking the district court to remand the case to state court. S 1447(c). This 30-day limit does not apply, however, to jurisdictional defects: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Ibid.

Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 473 (1996).

The exception for subject-matter jurisdiction cases simply reflects the general rule that jurisdictional defects may be asserted at any time and cannot be waived. See, Regents of University of California v. Bakke, 438 U.S. 265, 380 n.1, 98 S.Ct. 2733, 2794 n.1 (1978) (“lack of jurisdiction . . . touching the subject matter of the litigation cannot be waived by the parties”) (quoting United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938)). See also, United States v. Meyer, 439 F.3d 855, 863 (8th Cir. 2006) (“[l]ack of subject matter jurisdiction cannot be waived by the parties or ignored by the court”) (quoting In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir.2005)).

Removal & Remand Topics of Interest Uncategorized

Class Action Defense Cases: Knudsen v. Liberty Mutual

Changing Class Definition in Class Action Does Not Constitute New Case Permitting Removal Under CAFA (Class Action Fairness Act) Seventh Circuit Holds

Congress enacted CAFA (Class Action Fairness Act of 2005) for the purpose of expanding defense access to federal courts in class action cases. CAFA applies only to class actions filed after its effective date (February 18, 2005), but federal courts have held that certain pleading amendments – such as adding a new party-defendant – constitutes the commencement of a “new case” thus permitting removal by defense attorneys to federal court. Class action defendants often benefit if they can remove the case to federal court, and many have tested the limits of CAFA by removing class action cases on the grounds that different actions by the plaintiffs’ lawyer commenced a new suit.

Class Action Court Decisions Class Action Fairness Act (CAFA) Removal & Remand Uncategorized