Justia Consumer Law Opinion Summaries

Lee, a San Francisco independent optometrist, sued corporate affiliates operating optical retail stores in California that offer competing eyeglass products and optometry services, on behalf of a putative class of independent optometrists. He alleged that the chain stores operated in a manner that violated state laws regulating the practice of optometry and the dispensing of optical products, constituting unfair and/or unlawful business practices in violation of California’s Unfair Competition Law (UCL). He claimed that “adults are, on average, willing to drive more than 20 miles for routine medical care” and that “[i]f patients had not been able to visit illegal optometry locations, a statistically significant and statistically ascertainable percentage of such patients would have instead visited at least one member of the Class. The complaint sought a judgment “[o]rdering the restitution/disgorgement of all sums obtained by Defendants through improper taking of market share from Class Members through violations of the UCL.”The court of appeal affirmed the suit's dismissal. Compensation for lost market share is not a remedy authorized by the UCL, because it does not constitute restitution, the only form of nonpunitive monetary recovery authorized under the UCL. Compensation for expected but unearned future income to which the plaintiff has no legal entitlement is not recoverable as restitution under the UCL, regardless of how it is characterized. View "Lee v. Luxottica Retail North America, Inc." on Justia Law

In this class action complaint alleging violations of the West Virginia Consumer Credit and Protection Act the Supreme Court granted a writ of prohibition seeking to preclude the circuit court from enforcing its order granting a motion to compel discovery, holding that the circuit court clearly erred and exceeded its legitimate powers by granting the motion to compel.The order at issue compelled Petitioner to disclose the names and addresses of individuals with a West Virginia billing address who received communications from Health Care Financial Services (HCFS) during a certain time period and account information regarding the individuals who received those communications and ordered Petitioner to provide the information "in searchable format." Petitioner then filed this petition for writ of prohibition. The Supreme Court granted the writ as moulded, holding that the circuit court clearly erred in compelling Petitioner to disclose at this stage names and addresses of third-party individuals to whom debt collection letters were sent, dates of letters sent by HCFS, and other information. View "State ex rel. Health Care Alliance, Inc. v. O'Briant" on Justia Law

National Western Life Insurance Company (NWL) appealed a jury verdict holding the company liable for negligence and elder abuse arising from an NWL annuity sold to Barney Williams by Victor Pantaleoni, an independent agent. In 2016, Pantaleoni sold a $100,000 NWL annuity to Williams, who had contacted Pantaleoni to revise a living trust after the death of Williams’ wife. When Williams returned the annuity to NWL during a 30-day “free look” period, Pantaleoni wrote a letter over Williams’ signature for NWL to reissue a new annuity. In 2017, when Williams cancelled the second annuity, NWL charged a $14,949.91 surrender penalty. The jury awarded Williams damages against NWL, including punitive damages, totaling almost $3 million. NWL moved for judgment notwithstanding the verdict, which was denied. The Court of Appeal reversed: “Assuming NWL had monitored Pantaleoni as Williams suggested, there was no evidence showing that NWL knew or should have known of Pantaleoni’s fraud. … That Williams wrote the note cancelling the first annuity and Pantaleoni apparently wrote the letter requesting that it be reissued for Williams’ signature did not suggest to NWL that the letter was forged.” View "Williams v. National Western Life Insurance Co." on Justia Law

Soliman entered a California Subway sandwich shop. An employee showed her an in-store, hard-copy advertisement, on which Subway offered to send special offers if she texted a keyword. Soliman sent a text message to Subway. Subway began sending her, via text message, hyperlinks to electronic coupons. Soliman alleges that she later requested by text that Subway stop sending her messages, but her request was ignored. She filed suit under the Telephone Consumer Protection Act. Subway moved to compel arbitration, arguing that a contract was formed because the in-store advertisement, from which Soliman got the keyword and shortcode, included a reference to terms and conditions, including an arbitration requirement, located on Subway’s website and provided the URL.The Second Circuit affirmed the denial of the motion to compel arbitration. Under California law, Soliman was not bound by the arbitration provision because Subway did not provide reasonably conspicuous notice that she was agreeing to the terms on the website. Because of barriers relating to the design and content of the print advertisement, and the accessibility and language of the website itself, the terms and conditions were not reasonably conspicuous under the totality of the circumstances; a reasonable consumer would not realize she was being bound to such terms by sending a text message to Subway in order to receive promotional offers. View "Soliman v. Subway Franchisee Advert. Fund Trust, Ltd." on Justia Law

In Avila v. Riexinger & Associates, LLC, 817 F.3d 72, 76 (2d Cir. 2016), the Second Circuit held that the Fair Debt Collection Practices Act, 15 U.S.C. 1692e, requires "debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees."In this case, the Second Circuit held that Avila's disclosure requirement does not apply to collection notices that extend offers to settle outstanding debt. The court explained that such collection notices do not present the risk that a debtor might pay the listed balance only to find herself still owing more. Furthermore, payment of an amount that the collector indicates will fully satisfy a debt excludes the possibility of further debt to pay. Therefore, the court concluded that a settlement offer need not enumerate the consequences of failing to meet its deadline or rejecting it outright so long as it clearly and accurately informs a debtor that payment of a specified sum by a specified date will satisfy the debt. Applying these principles here, the court held that Forster & Garbus's notice to plaintiff did not violate section 1692e because it extended a settlement offer that, if accepted through payment of the specified amount(s) by the specified date(s), would have cleared plaintiff's account. Accordingly, the court reversed and remanded. View "Cortez v. Forster & Garbus, LLP" on Justia Law

The Supreme Court affirmed the judgment of the circuit court convicting and sentencing Defendant for first-degree robbery, holding that Defendant's assignments of error did not merit relief.Defendant and his girlfriend were indicted for robbing a gambling parlor. Before trial, the girlfriend agreed to testify against Defendant. After Defendant made a series of jailhouse phone calls to his girlfriend, she withdrew her plea agreement and declared she would not testify against Defendant. The circuit court granted the State's motion to admit the girlfriend's recorded statement into evidence. The Supreme Court affirmed, holding (1) the circuit court did not err in granting the State's motion to admit the girlfriend's out-of-court statement under the forfeiture-by-wrongdoing doctrine; (2) the circuit court properly found that Defendant had engaged in wrongdoing that would support the admission of the girlfriend's out-of-court statement; (3) Defendant did not receive ineffective assistance of trial counsel; and (4) the court's answer to a jury question was not in error. View "State v. Jako" on Justia Law

The Eleventh Circuit concluded that, under Florida law, the policy exclusion barring coverage for claims arising out of an invasion of privacy unambiguously excludes coverage for claims alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA) in which the complaint repeatedly alleges that defendants invaded the privacy of plaintiffs. The court explained that the invasion of privacy exclusion barred coverage for the class action here because the class complaint specifically alleged that iCan intentionally invaded the class members' privacy and sought recovery for those invasions. Accordingly, the court affirmed the district court's grant of summary judgment to Liberty. View "Horn v. Liberty Insurance Underwriters, Inc." on Justia Law

The Orlans law firm, sent a letter on law-firm letterhead, stating that Wells Fargo had referred the Garland loan to Orlans for foreclosure but that “[w]hile the foreclosure process ha[d] begun,” “foreclosure prevention alternatives” might still be available if Garland contacted Wells Fargo. The letter explained how to contact Wells Fargo “to attempt to be reviewed for possible alternatives,” the signature was typed and said, “Orlans PC.”Garland says that the letter confused him because he was unsure if it was from an attorney and “raised [his] anxiety” by suggesting “that an attorney may have conducted an independent investigation and substantive legal review ... such that his prospects for avoiding foreclosure were diminished.” Garland alleges that Orlans sent a form of this letter to thousands of homeowners, without a meaningful review of the homeowners’ foreclosure files, so the communications deceptively implied they were from an attorney. The Fair Debt Collection Practices Act (FDCPA) prohibits misleading debt-collection communications that falsely imply they are from an attorney.The Sixth Circuit affirmed the dismissal of the purported class action for lack of jurisdiction. Garland lacks standing. That a statute purports to create a cause of action does not alone create standing. A plaintiff asserting a procedural claim must have suffered a concrete injury; bare allegations of confusion and anxiety do not qualify. Whether from an attorney or not, the letter said nothing implying Garland’s chance of avoiding foreclosure was “diminished.” View "Garland v. Orlans, PC" on Justia Law

Plaintiff filed a class action complaint alleging that 5 Star negligently, willfully, and/or knowingly sent text messages to his cell phone number using an automatic telephone dialing system without prior express consent in violation of the Telephone Consumer Protection Act (TCPA). The district court dismissed the complaint for lack of standing.The Fifth Circuit reversed, concluding that plaintiff has alleged a cognizable injury in fact: nuisance arising out of an unsolicited text advertisement. The court concluded that the TCPA cannot be read to regulate unsolicited telemarketing only when it affects the home. The court also concluded that plaintiff's injury has a close relationship to common law public nuisance and, moreover, plaintiff alleges a special harm not suffered by the public at large. The court rejected the Eleventh Circuit's holding in Salcedo v. Hanna, 936 F.3d 1162, 1168 n.6 (11th Cir. 2019), and remanded for further proceedings. View "Cranor v. 5 Star Nutrition, LLC" on Justia Law

Reck purchased a new car manufactured by FCA, experienced frequent issues with the vehicle, and unsuccessfully requested its repurchase. Reck sued under the Song-Beverly Consumer Warranty Act, Civ. Code, 1790 After discovery, FCA served Reck with a second Civil Code section 998 offer, proposing to settle the matter for $81,000 plus costs, expenses, and attorney fees. Their counsel, Knight, had incurred $15,000 in legal fees. The Recks rejected the offer. Two days after trial commenced, the case settled for $89,500 plus fees and costs to be determined separately.Counsel sought attorney fees under section 1794(d): $46,487.50 in services provided by Knight and $78,344 in legal services provided by Century Law. FCA objected, arguing that the Recks incurred approximately $100,000 in attorney fees between April 2018, when the $81,000 settlement offer was refused, and August 2018, when they agreed to settle; that adding a second law firm to try the case resulted in unnecessary duplication of effort; and that three of their motions had been denied or withdrawn. The trial court found the case “not particularly complex” and awarded $20,158 in attorney fees with a requested .5 multiplier, finding that the $8,500 difference did not justify an award of fees for any hours spent preparing for trial.The court of appeal reversed. The Song-Beverly Act mandates the recovery of reasonable attorney fees to a prevailing plaintiff based upon “actual time expended.” The trial court did not undertake a lodestar analysis of fees reasonably incurred following the rejection of the settlement offer. In the context of public interest litigation with a mandatory fee-shifting statute, it is an error of law for the court to categorically deny or reduce an attorney fee award on the basis of a plaintiff’s failure to settle when the ultimate recovery exceeds the section 998 settlement offer. View "Reck v. FCA US LLC" on Justia Law