Justia Consumer Law Opinion Summaries

This case involved the foreclosure sale of certain property owned by plaintiffs. Plaintiffs appealed the district court's dismissal with prejudice of their claims against BAC and NDE under the Texas Debt Collection Act (TDCA), Tex. Fin. Code 392.304(a), the Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com. Code 17.41 et seq., and Texas common law. The court concluded that plaintiffs have alleged sufficient facts to state a claim against BAC for misrepresenting the status or nature of the services that it rendered. Accordingly, the court reversed the district court's dismissal of the TDCA claims under section 392.304(a)(14) as to that basis, remanding for further proceedings. Consequently, the court also reversed the district court's dismissal of plaintiffs' request for an accounting from NDE. The court affirmed in all other respects. View "Miller, et al. v. BAC Home Loans Servicing, L.P., et al." on Justia Law

Sam’s Club is a members-only retail warehouse that features a section for clearance items, called “as-is” items. Items may be designated “as-is” for various reasons and may be damaged or undamaged. Every as-is item is marked with an orange sticker; when a cashier scans the item, the original price appears and the cashier must perform a manual override. The software records the fact that a price override was performed, but does not include the reason. Overrides can occur for reasons other than “as-is” designation. Sam’s contracted with NEW to sell extended warranties for items sold in the store. NEW will not cover some “as is” products, including some purchased by Hayes. On each occasion, Sam’s employees offered and Hayes purchased a NEW warranty. The store provided Hayes with a manual and remote missing from a television he purchased and offered to refund the warranty price. Hayes declined. Hayes sued, on behalf of himself and all other persons who purchased a warranty for an as-is product from Clubs in New Jersey since 2004, asserting violation of the state Consumer Fraud Act, breach of contract, and unjust enrichment. The trial court certified a Rule 23(b)(3) class. The Third Circuit vacated and remanded for consideration of Rule 23’s class definition, ascertainability, and numerosity requirements in light of a recent decision. View "Hayes v. WalMart Stores Inc" on Justia Law

Plaintiff filed putative class actions under the Electronic Fund Transfer Act (EFTA), 15 U.S.C. 1693, alleging that Mutual First and First National violated the Act because defendants' ATM machines did not have "on machine" notice of a transaction fee. The district court dismissed for lack of standing. The court concluded, however, that plaintiff's claim of statutory damages was sufficiently related to his injury to confer standing where defendants did not provide him with the required "on machine" notice and then charged him a prohibited fee following an ATM transaction that he initiated and completed. Further, plaintiff's injury was fairly traceable to defendants' conduct where, if defendants had not violated the Act's notice requirement, plaintiff would not have been forced to choose between engaging in a transaction without the required notice and walking away. Accordingly, the court reversed and remanded for further proceedings. View "Charvat v. Mutual First Fed. Credit Union" on Justia Law

This was a FDCPA action stemming from proceedings that occurred in a debt collection action filed by Defendant Abby Shadakofsky against Plaintiff-Appellant George James in Wyoming state court in August 2011. Shadakofsky retained Defendant-Appellee Cheryl Wadas, a licensed attorney whom Shadakofsky had a previous retainer agreement, to represent her on an as-needed basis. James asserted that Wadas, and Shadakofsky vicariously as Wadas's principal, violated the FDCPA by: (1) representing that legal fees were $3,000 when the underlying debt did not provide for the recovery of legal fees; (2) serving and filing an untimely answers/replies to the counterclaims; and (3) serving discovery requests in relation to the counterclaims. The district court granted summary judgment in favor of Wadas. Shadakofsky subsequently moved to dismiss the vicarious liability claim against her and the district court granted the motion. James appealed the district court's grant of summary judgment. At issue before the Tenth Circuit was the district court's interpretation of the term "debt collector" under the FDCPA, and its conclusion that Wadas was not a "debt collector" because she did not engage in debt collection "regularly." The Tenth Circuit agreed with the district court's analysis and affirmed. View "James v. Wadas, et al" on Justia Law

Former starting quarterback for Arizona State University, Samuel Keller, filed a putative class action suit against EA, alleging that EA violated his right of publicity under California Civil Code 3344 and California common law by using Keller's likeness as part of the "NCAA Football" video game series. EA moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) under California's anti-SLAPP statute, Cal. Civ. Proc. Code 425.16. The court concluded that EA could not prevail as a matter of law based on the transformative use defense where EA's use did not qualify for First Amendment protection because it literally recreated Keller in the very setting in which he had achieved renown. The court also concluded that, although there was some overlap between the transformative use test and the Rogers v. Grimaldi test, the Rogers test should not be imported wholesale to the right-of-publicity claims. Finally, the court concluded that state law defenses for reporting of information did not protect EA's use. Accordingly, the court affirmed the district court's denial of the motion to strike the complaint. View "In re: NCAA Licensing Litig." on Justia Law

Retired Hall of Fame football player, James "Jim" Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown's likeness in EA's "Madden NFL" series of football video games. The court rejected the "likelihood of confusion" test and the "alternative means" test, concluding that the only relevant legal framework for balancing the public's right to be free from consumer confusion about Brown's affiliation with "Madden NFL" and EA's First Amendment rights in the context of Brown's section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown's likeness was artistically relevant to the "Madden NFL" games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown's involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court's grant of EA's motion to dismiss. View "Brown v. Electronic Arts, Inc." on Justia Law

Plaintiffs filed a putative consumer class action suit against DirecTV and Best Buy, alleging violations of California's consumer protection laws. The arbitration agreement at issue in this instance was a customer service agreement between DirecTV and individuals who believed they purchased DirecTV equipment from Best Buy stores. AT&T Mobility v. Concepcion held that Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C. 2, preempted the State of California's rule rendering unenforceable arbitration provisions in consumer contracts that waive collective or class action proceedings. The court concluded that the arbitration agreement in this case was enforceable under Concepcion and, therefore, the district court did not err in compelling plaintiffs to arbitrate their claims against DirecTV. The court concluded, however, that plaintiffs were not required to arbitrate their claims with Best Buy. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "Murphy v. DirecTV, Inc." on Justia Law

Green sued under the Truth in Lending Act, 15 U.S.C. 1606, claiming that U.S. Cash Advance misstated her loan’s annual percentage rate. The lender requested arbitration under the loan agreement, which referred to “binding arbitration by one arbitrator by and under the Code of Procedure of the National Arbitration Forum.” The agreement was signed in 2012; the Forum has not accepted new consumer cases for arbitration since 2009, when it settled a suit alleging bias in merchants’ favor. The lender asked the court to appoint a substitute arbitrator under 9 U.S.C. 5. The judge declined, stating that identification of the Forum as arbitrator was “integral.” The Seventh Circuit reversed, reasoning that the agreement calls for use of the Forum’s Code of Procedure, not for the Forum itself to conduct proceedings. The court noted that the lender will have to “live with” the judge’s broad discretion in choosing an arbitrator, who might be familiar with practices in the payday loan industry or open to use of claimant classes in arbitrations, perhaps on a theory “that a consumer who would not voluntarily waive her rights under the Truth in Lending Act probably should not be deemed to have implicitly waived her right to the only procedure that could effectively enforce those rights.” View "Green v. U.S. Cash Advance IL, LLC" on Justia Law

The Thomas M. Cooley Law School, accredited by the ABA, enrolls more students than any other U.S. law school and plans to expand. Cooley charges full-time students tuition of $36,750 per year, exclusive of other costs, and, according to U.S. News & World Report, has the lowest admission standards of any accredited law school. The school has a very low retention rate. In a 66-page complaint, 12 graduates claimed that the school disseminated false employment statistics, upon which they relied as assurances that they would obtain full-time attorney jobs after graduating. The graduates did not obtain the kind of employment the statistics advertised; some found employment at all. They claimed that, had they known the truth, they would not have attended Cooley or would have paid less tuition, and sought, among other relief, partial tuition reimbursement, which they estimated for the class would be $300,000,000. The district court dismissed. The Sixth Circuit affirmed, reasoning that the Michigan Consumer Protection Act does not apply to the facts. The complaint shows that one of the statistics on which they relied was objectively true and reliance on the statistics, without further inquiry, was unreasonable. View "MacDonald v. Thomas M. Cooley Law School" on Justia Law

Plaintiffs filed suit against Chase under the Truth in Lending Act (TILA), 15 U.S.C. 1641(g), alleging that Chase did not comply with disclosure requirements when it did not inform them that it had been assigned an interest in their mortgage. The court concluded that the assignment was an "administrative convenience" within the meaning of section 1641(f) because the assignment allowed Chase to perform foreclosure, a requirement of servicing the loan. Accordingly, Chase was not subject to the disclosure requirements and the court affirmed the district court's grant of summary judgment in favor of Chase. View "Reed, Jr., et al. v. Chase Home Finance, LLC" on Justia Law