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Plaintiffs sued Dentsply, Cavitron's manufacturer and marketer, on behalf of California dentists who purchased the Cavitron ultrasonic scaler for use during oral surgical procedures, under the Unfair Competition Law (UCL) (Bus. & Prof. Code, 17200) and for breach of express warranty. Plaintiffs claim that the Directions for Use indicate Cavitrons can be used in “[p]eriodontal debridement for all types of periodontal diseases,” which by implication included oral surgery; in fact, they cannot because the device accumulates biofilm in its waterlines and is incapable of delivering sterile water during surgical procedures. Following a remand, the trial court certified the class, conducted a bench trial, and rejected all claims. The court of appeal affirmed, agreeing that plaintiffs, as licensed dentists, were well aware that biofilm forms in all dental waterlines and that Cavitrons do not produce sterile water. The evidence failed to establish that the class was likely to be misled. The weight of the evidence established that dental professionals did not understand the warranty that the Cavitron was suitable for use in “[p]eriodontal debridement for all types of periodontal diseases,” as a statement that the Cavitron delivered sterile water or water without biofilm. View "Patricia A. Murray Dental Corp. v. Dentsply International., Inc." on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. In this case, plaintiff received a text message from AC Referral, a non-party, that violated the TCPA. Plaintiff claimed that three lenders and two marketing companies ratified the unlawful text messages. The panel held that, although one of the marketing companies, Click Media, had an agency relationship with AC Referral, it was not bound by AC Referral's acts because it lacked knowledge that AC Referral was violating the TCPA and did not have knowledge of facts that would have led a reasonable person to investigate further. Therefore, Click Media could not be deemed to have ratified AC Referral's actions and was not vicariously liable. View "Kristensen v. Credit Payment Services" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment against plaintiff in an action alleging that he was unlawfully terminated under the Consumer Financial Protection Act (CFPA), 12 U.S.C. 5567(a)(1). Plaintiff, a car salesman, alleged that Sonic would not extend credit to minorities. The court held that nothing in section 5519(a) precluded the Department of Labor, a separate federal entity, from enforcing the anti-retaliation provision against dealers even though the CFPB could not; the Equal Credit Opportunity Act (ECOA), 15 U.S.C. 1691, as applied to automobile dealers, was not a statute subject to the jurisdiction of the Bureau, and thus, as a matter of law, Sonic could not have violated section 5567(a); and a reasonable belief that discrimination was occurring under the ECOA could not extend the jurisdictional scope of the CFPA to include actors to which the statute did not apply. View "Calderone v. Sonic Houston JLR" on Justia Law

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The Second Circuit affirmed the district court's grant of defendant's motion for judgment on the pleadings in an action alleging that defendant violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The court held that a flu shot reminder text message sent by a hospital did not violate the TCPA because the text fell within the scope of plaintiff's prior express consent. In this case, plaintiff provided defendant with his cell phone number when he first visited the hospital; signed a consent form acknowledging receipt of various privacy notices; in signing the form, agreed that the hospital could share his information for "treatment" purposes; and the privacy notices stated that defendant could use plaintiff's information to recommend possible treatment alternatives or health-related benefits and services. View "Latner v. Mt. Sinai Health System, Inc." on Justia Law

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Panico, a New Jersey resident, incurred substantial debt on an MBNA credit card, which qualifie as “debt” under the Fair Debt Collection Practices Act, 15 U.S.C. 1692a(5). MBNA assigned the rights to the debt to PRA, a debt collector. PRA’s collection efforts failed. In 2014, more than three but fewer than six years after the cause of action accrued, PRA sued. New Jersey’s statute of limitations barred collection ofsuch debts after six years; Delaware’s statute proscribed collection of such debts after three years. The credit agreement provided for application of “the laws of ... Delaware, without regard to its conflict of laws principles, and by any applicable federal laws.” PRA agreed to a stipulated dismissal. In 2015, Panico filed a putative class action under the FDCPA, arguing that PRA had sought to collect on a time-barred debt. The district court granted PRA summary judgment, finding that a Delaware tolling statute prevented the Delaware statute of limitations from running as to a party residing outside that state during the credit relationship, default, collections attempts, and ensuing litigation. The Third Circuit reversed. Delaware’s tolling statute has been interpreted as abrogating its statute of limitations only as to defendants not otherwise subject to service of process; it was not intended to export the state’s tolling statute into out-of-state forums and to substantially limit the application of the Delaware statute of limitations. View "Panico v. Portfolio Recovery Associates, LLC" on Justia Law

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NRS 604A.480(2)(f) bars a licensee from bringing any type of enforcement action on a refinancing loan made under NRS 604A.480(2). In this case, the Nevada Supreme Court held that the district court erred in concluding that NRS 604A.480 does not prohibit certain payday loan licensees from filing suit against borrowers who default on the loans. The state supreme court noted that the bar against future civil action on loans made under subsection 2(f) puts an end to the debt treadmill. Accordingly, the state supreme court reversed the judgment. View "Nevada Department of Business & Industry v. Dollar Loan Center, LLC" on Justia Law

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Palmer’s vacant Detroit apartment complex was covered by a Scottsdale fire insurance policy until November 2012. The property was vandalized in February 2012. Palmer reported the loss in October 2013. Scottsdale replied that it was investigating. In November, Palmer sent Scottsdale an itemized Proof of Loss. Scottsdale paid Palmer $150,000 in June 2014. Michigan law provides that losses under any fire insurance policy shall be paid within 30 days after receipt of proof of loss. Palmer requested an appraisal. Scottsdale agreed, noting the claim remained under investigation. Appraisers concluded that Palmer’s actual-cash-value loss was $1,642,796.76. The policy limit was $1,000,000. Scottsdale tendered checks over a period of several months that paid the balance. Palmer requested penalty interest for late payment. Michigan law states that if benefits are not paid on a timely basis, they bear simple interest from a date 60 days after satisfactory proof of loss was received by the insurer at the rate of 12% per annum. The Sixth Circuit reversed the district court’s conclusion that the penalty-interest claim arose “under the policy” and was barred by the policy’s two-year limitations provision. Palmer did not allege that Scottsdale breached the policy agreement. Scottsdale paid the insured loss and the policy had no time limit for paying a loss, Palmer has no unvindicated rights and no claim “under the policy” to assert. His claim is under the statute. View "Palmer Park Square, LLC v. Scottsdale Ins. Co." on Justia Law

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The plaintiffs-respondents in this case sued hundreds of defendants, whom the plaintiffs asserted had served them mixed drinks over a period of several years prior to filing the lawsuit. The plaintiffs claimed that defendants had violated a tax statute, 37 O.S.2011, section 576(B)(2), that required a 13.5% tax on the gross receipts the holders of a license by the ABLE Commission for sale of a mixed beverage. They contended that the licensees who failed to combine the retail sale price with the tax in its advertised price had overcharged their customers by 13.5%. The defendants appealed the trial court's interpretation of the statute. The Oklahoma Supreme Court remanded these cases with orders to dismiss: "Although the briefs from the parties skillfully address other permutations of argument on both sides of this cause, we conclude that what we have chosen to address sufficiently resolves the main issue presented. The statute's ambiguities caused sufficient problems in collection of the tax that the Legislature amended the statute. We hold that the statute's purpose does not involve protecting consumers from having a tax separately listed from the price of a drink instead of including it in the price of a drink. Because the complaints of the plaintiffs against the defendants rest on the assumption that 37 O.S.2011, section 576(B)(2) protects consumers, and we have held that it is solely a tax statute." View "Truel v. Aguirre, LLC" on Justia Law

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Plaintiff Antoinette Rossetta appealed the dismissal of her second amended complaint after the trial court sustained a demurrer by defendants CitiMortgage, Inc. (CitiMortgage) and U.S. Bank National Association as Trustee for Citicorp Residential Trust Series 2006-1 (2006-1 Trust). The complaint asserted multiple causes of action sounding in tort, and unlawful business practices in violation of the Unfair Competition Law arising from loan modification negotiations spanning more than two years. Rossetta also appealed the trial court’s dismissal of a cause of action for conversion that appeared in an earlier iteration of the complaint to which CitiMortgage and the 2006-1 Trust (collectively, CitiMortgage, unless otherwise indicated) also successfully demurred. After review, the Court of Appeal concluded: (1) the trial court erred in sustaining the demurrer to the causes of action for negligence and violations of the Unfair Competition Law; (2) the trial court properly sustained the demurrer to the causes of action for intentional misrepresentation and promissory estoppel, but should have granted leave to amend to give Rossetta an opportunity to state a viable cause of action based on an alleged oral promise to provide her with a Trial Period Plan (TPP) under the Home Affordable Mortgage Program (HAMP) in April 2012; and (3) the trial court properly sustained the demurrer to the causes of action for negligent misrepresentation, breach of contract, intentional infliction of emotional distress and conversion without leave to amend. View "Rossetta v. CitiMortgage, Inc." on Justia Law

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In 2002, Toulon applied for Continental’s long-term care insurance policy. Continental provided a Long-Term Care Insurance Personal Worksheet to help Toulon determine whether the policy would work for her, given her financial circumstances. The Worksheet discussed Continental’s right to increase premiums and how such increases had previously been applied. Toulon did not fill out the Worksheet but signed and submitted it with her application. Toulon’s Policy stated that although Continental could not cancel the Policy if each premium was paid on time, Continental could change the premium rates. There was a rider, stating that premiums would not be increased during the first 10 years after the coverage date. In September 2013, Continental raised Toulon’s premiums by 76.5%. Toulon sued, on behalf of herself and a purported class. The Seventh Circuit affirmed dismissal, agreeing that Toulon failed to state claims for fraudulent misrepresentation because she did not identify a false statement or for fraudulent omission because Continental did not owe Toulon a duty to disclose. The court also properly dismissed Toulon’s claim under the Illinois Consumer Fraud and Deceptive Practices Act (ICFA) because she did not identify a deceptive practice, a material omission, or an unfair practice. The unjust enrichment claim failed because claims of fraud and statutory violation, upon which Toulon's unjust enrichment claim was based, were legally insufficient and an express contract governed the parties’ relationship. View "Toulon v. Continental Casualty Co." on Justia Law