Justia Consumer Law Opinion Summaries

The trial court dismissed a third amended class action complaint filed in connection with power outages during severe storms. The complaint alleged negligence, breach of contract, and violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1). The appellate court and Illinois Supreme Court affirmed. The electric utility's tariff precludes an award of damages; even if such claims were not barred, jurisdiction over matters relating to the utility's service and infrastructure lies with the Illinois Commerce Commission. The Consumer Fraud Act claim alleged that that the company knew or should have known that it failed to sufficiently establish policies and procedures to prevent controllable interruptions of power and to timely respond to those interruptions, in order to protect the health, safety, comfort and convenience of its customers, including those on the life support registry. The claim failed because the company is not required to prioritize those on the life support registry and does not intend that those on the registry rely on it doing so.

Plaintiffs filed suit under the federal Driver’s Privacy Protection Act (DPPA), 18 U.S.C. 2721-2725, and 42 U.S.C. 1983, alleging that personal information, as defined by the DPPA, was disclosed by individual defendants while acting as agents of the Ohio Department of Public Safety or the Ohio Bureau of Motor Vehicles (BMV). The BMV apparently made bulk disclosures of personal information from motor vehicle records to a company, for an asserted permissible purpose, and the company resold or redisclosed the information. The district court determined that the defendants were not entitled to qualified immunity. On interlocutory appeal. the Sixth Circuit reversed and remanded. The DPPA is not a strict liability statute and the defendants made the disclosures for a purportedly permitted purpose; they did not violate plaintiffs' "clearly established" rights. The DPPA does not impose a duty to investigate requests for disclosure nor does it clearly prohibit bulk disclosures.

Plaintiffs filed a purported class action as an adversary proceeding before the bankruptcy court alleging that their mortgage lender, Wells Fargo Bank N.A. ("Wells Fargo"), violated various provisions of the Bankruptcy Code and Bankruptcy Rules by failing to disclose certain fees on the proof of claim it filed in plaintiffs' Chapter 13 bankruptcy case. At issue was whether the district court erred in affirming the bankruptcy court's grant of summary judgment in favor of Wells Fargo on plaintiffs' claims that Wells Fargo violated the automatic stay provisions in 11 U.S.C. 362; their claims that Wells Fargo violated 11 U.S.C 506(b) and Bankruptcy Rule 2016 by failing to disclose the fees; and their objection to the proof of claim. The court considered each of plaintiffs' automatic stay violations under section 362 and held that Wells Fargo was entitled to summary judgment on each claim. The court concluded that bankruptcy courts have not uniformly reached a conclusion supporting the proposition that pursuant to section 506(b), Rule 2016, or both of these provisions, a secured creditor must disclose and obtain court approval of post-petition legal expenses. Therefore, the court held that these provisions were not violated when a creditor merely recorded costs it had incurred in association with a mortgagee's bankruptcy for internal bookkeeping purposes and made no attempt to collect the fees or otherwise add them to the debtor's balance. Accordingly, to the extent plaintiffs' disclosure claims relied on events that have occurred during the course of their Chapter 13 case, the district court did not err in affirming the bankruptcy court's order granting summary judgment. The court further held that Wells Fargo's failure to include the proof of claim fees on the proof of claim did not provide a valid basis for an objection; and as to this amount, plaintiffs have identified no reason why such amount was unenforceable. Therefore, Wells Fargo was entitled to summary judgment on this claim.

Plaintiffs brought an enforcement suit against defendants under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. 1001-1461. At issue was whether the district court properly granted summary judgment in favor of defendants, concluding that defendants' practice of offering discounted telephone services to employees and retirees ("Concession") was not a pension plan in whole or in part. The court affirmed summary judgment and held that the district court did not err in holding that Concession was one plan, at least as it regarded to all retirees; in refusing to examine the out-of-region retiree Concession in isolation; in concluding that although Concession did provide income to some retirees, such income was incidental to the benefit, and was not designed for the purpose of paying retirement income; and in holding that Concession did not result in a deferral of income.

Plaintiffs, a putative class of retail cable and satellite television subscribers, brought suit against television programmers and distributors alleging that programmers' practice of selling multi-channel cable packages violated Section 1 of the Sherman Act, 15 U.S.C. 1. At issue was whether the district court properly granted programmers' and distributors' motion to dismiss plaintiffs' third amended complaint with prejudice because plaintiffs failed to allege any cognizable injury to competition. The court held that the complaint's allegations of reduced choice increased prices addressed only the element of antitrust injury, but not whether plaintiffs have satisfied the pleading standard for an actual violation. Therefore, absent any allegations of an injury to competition, the court held that the district court properly dismissed the complaint for failure to state a claim.

Based on faxes received in 2002, advertising discount travel, plaintiff filed a class action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227. The trial court denied motions to dismiss, but certified questions to the appellate court. On appeal, the Illinois Supreme Court held that the TCPA forms part of the law enforceable in Illinois courts without the need for the Illinois General Assembly to enact enabling legislation to permit private claims. The appellate court's discussion of the assignability of TCPA claims amounted to an advisory opinion because the amended complaint under discussion alleged that the plaintiff at issue had, itself, received junk faxes from the defendant. The court remanded for consideration of whether the claim is subject to the Illinois two-year limitations period for actions including personal injuries and statutory penalties (735 ILCS 5/13-202) or the four-year limitations period for federal civil actions (28 U.S.C. 1658).

"Homes by George," run by Adelaide and Rick George, developed residential real estate known as "Esther's Estates" in Newton. Homes by George entered into a written contract with Defendant Al Hoyt & Sons, Inc., in which Defendant agreed to perform certain work in connection with the development. Defendant was paid but did not complete the work. Plaintiffs alleged breach of contract and claimed that Defendant violated the State Consumer Protection Act (CPA). Defendant counter-claimed that Plaintiff failed to pay amounts due in accordance with the contract. The trial court bifurcated the proceedings to allow a jury to first determine liability claims. A second trial was held on the contract claims. Plaintiffs won on all liability claims in the first trial, and received damages on its breach of contract and CPA claims at the second. Both parties appealed to the Supreme Court. Plaintiffs challenged the amounts of damages they were awarded by the trial court. Defendant argued that the trial court erred in its finding of violations under the CPA, and in its damages awarded to Plaintiffs. Upon careful consideration of the arguments and the applicable legal authority, the Supreme Court affirmed part and reversed part of the lower court's decision. The Supreme Court found that the grant of damages was appropriate in light of the terms of the contract, the state case law, and the evidence presented at trial. However, the Court questioned how the trial court arrived at the amount of damages. The Court remanded the case back to the trial court for further proceedings on its damages award to Plaintiffs. The Court affirmed the trial court in all other aspects of its decision.

Appellant, an African-American resident of Texas, sued appellees alleging that their credit-scoring systems employed several undisclosed factors which resulted in disparate impacts for minorities and violated the federal Fair Housing Act ("FHA"), 42 U.S.C. 3601, 3619. At issue, in a certified question, was whether Texas law permitted an insurance company to price insurance by using a credit-score factor that had a racially disparate impact that, were it not for the McCarran-Ferguson Act, 15 U.S.C. 1012(b), would violate the FHA, absent a legally sufficient nondiscriminatory reason, or would using such a credit-score factor violate Texas Insurance Code ("Code") sections 544.002(a), 559.051, 559.052, or some other provision of Texas law. The court answered the certified question by holding that Texas law did not prohibit an insurer from using race-neutral factors in credit-scoring to price insurance, even if doing so created a racially disparate impact.

The Sixth Circuit previously reversed defendant's conviction and sentence for possession of a firearm in connection with drug trafficking, 18 U.S.C. 924(c), but affirmed other convictions and the 30-year sentence he received for those counts. The government dropped the charge and the court vacated the sentence for that count by written order without allowing defendant to personally appear or re-allocute. peals arguing that the district court erred by not conducting a plenary resentencing. The Sixth Circuit affirmed, holding that because the issue was limited to the 924 charge, which the United States declined to pursue, there was no sentencing to be done. The district court did not rely on the 924 conviction in imposing the sentence for the other counts and it was not improper to consider the actual possession of a gun.

Appellants challenged a district courtâs discovery order that directed them to disclose what they called privileged information. To achieve this end, the Appellants filed an interlocutory appeal and a petition for writ of mandamus with the Tenth Circuit. The Appellants in this case include motor fuel retailers and the retail motor fuel trade associations to which the retailers belong. The Plaintiffs in this case are consumers and other interested parties. Collectively they filed twelve putative class action cases in seven federal district courts. The Plaintiffs alleged that the retailersâ âvolumetric pricing systemâ for retail motor fuel overcharges customers. When the temperature of the fuel rises, the fuelâs volume expands, but the actual energy content stays the same â customers pay for âmoreâ fuel but half the energy. Plaintiffs allege that the temperature fluctuations and fuel volumes are accounted for in every aspect of the Appellantsâ âvolumetric pricing systemâ except at the retail level, thus overcharging retail customers. The Tenth Circuit held that Appellants devoted a majority of their appellate brief to their contention that a First Amendment privilege should be presumed with respect to the information Plaintiffs sought to discover. However, Appellants made an âunwise strategic decisionâ by seeking a presumption when they failed to prove the information was indeed privileged. The Court dismissed Appellantsâ interlocutory appeal and denied their application for writ of mandamus.