As we have previously opined, the decision of whether to remove a case can be critically important in state-court-filed class actions. Despite the importance of this decision, the time afforded defendants to weigh their options—thirty days—is minimal. In that short time, defendants must weigh the costs and benefits of both…
On November 10, 2014, the Ninth Circuit reversed a district court’s order dismissing and directing to arbitration a putative nationwide class action alleging Telephone Consumer Protection Act (TCPA) violations, finding that the Customer Agreement containing the arbitration clause was unenforceable for lack of mutual assent. Knutson v. Sirius XM Radio…
In recent months, a number of class actions have been filed across the country against large banks in an attempt to hold those banks accountable for debiting consumers’ deposit accounts for payments to certain companies offering short-term, small dollar loans – often called “payday loans” – online. In all of…
The U.S. Supreme Court recently declined to review a debt collector’s appeal of the Third Circuit’s decision this summer that debtors were not required to dispute their debt under the Fair Debt Collection Practices Act (FDCPA) before filing suit. The Third Circuit decision reversed a district court’s dismissal of a class…
On November 3, 2014, Judge Richard J. Leon of the U.S. District Court for the District of Columbia struck down the U.S. Department of Housing & Urban Development’s (HUD) March 2013 much-discussed disparate impact rule. In American Insurance Association, et al. v. United States Department of Housing & Urban Development, et…
On August 27, 2014, the California Supreme Court granted a petition for review in which the Second Appellate District of the California Court of Appeals dismissed a mortgagor’s challenge to foreclosure proceedings, ruling that she had no standing to challenge assignment of her promissory note and the deed of trust…
Borrowers who rescind their loans pursuant to the Truth in Lending Act (TILA) must return to the creditor what they borrowed. But a July 16, 2014 ruling by the Court of Appeals for the Ninth Circuit in Merritt v. Countrywide Financial Corp. makes it more difficult for lenders to win…
On May 28, the U.S. Court of Appeals for the Seventh Circuit affirmed a decision requiring two borrowers who prevailed on their TILA rescission claims to tender the principal loan balance before the lender would release its security interest and return the borrowers’ prior loan payments. Iroanyah v. Bank of…
Employers use a number of tools to assess any potential hire, and to evaluate existing employees. When using a credit report for these purposes, employers need to be wary of the Fair Credit Reporting Act’s (“FCRA”) (15 U.S.C. 1681 et seq.) provisions. The FCRA has strict procedures, requiring that employers…
On April 28, 2014, the U.S. Supreme Court granted certiorari in an Eighth Circuit case which held that a borrower exercises and preserves her TILA rescission right by filing a lawsuit within three years of consummating the loan, not simply by providing written notice of rescission to the creditor in…
Lenders scored a victory in the Ninth Circuit on June 12, 2014, with the court largely affirming dismissal of claims by plaintiffs in multidistrict litigation challenging the lending industry’s use of Mortgage Electronic Registration Systems, Inc. (MERS). The appeal stemmed from dozens of putative class actions and individual borrower cases…
Move to federal court or stay in state court—an essential strategic question for defendants of state-court-filed class actions. Pace of litigation, applicable discovery rules, court familiarity with class actions—the right forum can make a significant difference in litigating a class action. Although the first choice of forum belongs to the…
In SEC v. Citigroup Global Markets Inc.,___ F.3d __, no. 11-5227-cv (June 4, 2014) (“Citigroup II”), a three-judge panel of the Second Circuit affirmed the SEC’s ability to negotiate settlements without obtaining specific factual admissions from the settling defendants. The Court reasoned that there is a distinction between trials and…