Spokeo on Remand: The Ninth Circuit Finds Plaintiff’s FCRA Injury Is Concrete

Fifteen months after the U.S. Supreme Court’s landmark decision in Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016), the Ninth Circuit issued its opinion on remand.  The only question before the Ninth Circuit was whether the plaintiff’s allegations regarding his injuries – resulting from Spokeo’s alleged violation of the Fair Credit Reporting Act (the “FCRA”) – were sufficiently concrete to confer Article III standing.  In Spokeo III, the Ninth Circuit answered that question in the affirmative, finding that (1) the relevant provisions of the FCRA were established to protect the concrete interests of consumers like plaintiff, and (2) plaintiff alleged actual harm to his concrete interests resulting from Spokeo’s publication of an inaccurate report about him.

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Federal Communications Commission Tackles the “Reassigned Number Problem”

Reassigned numbers have been at the center of the surge in litigation under the Telephone Consumer Protection Act (“TCPA”) during the last few years.  By now the story is well known to businesses that actively communicate with their customers: the customer consents to receive telemarketing and/or informational robocalls[1] at a wireless telephone number, but months or years later the customer changes his or her wireless telephone number and—unbeknownst to the business—the telephone number is reassigned to a different person.  When the recipient of the reassigned number starts receiving calls or messages from the business, a lawsuit often ensues under the TCPA because that party has not consented to receive such calls.  The FCC adopted on July 13 a Second Notice of Inquiry (“Second NOI”) that promises to address this problem in a meaningful way.  Specifically, the Second NOI focuses on the feasibility of “using numbering information to create a comprehensive resource that businesses can use to identify telephone numbers that have been reassigned from a consumer who has consented to receiving calls to a consumer who has not.” Continue Reading

BREAKING: U.K. Tribunal Denies Certification in Merricks v. MasterCard, Dismisses Application for Collective Proceedings Order

Credit CardsThe U.K.’s Competition Appeal Tribunal has just issued its judgment dismissing the application for a Collective Proceedings Order in Walter Hugh Merricks CBE v. MasterCard Inc., holding that the claims asserted “should not be certified under rule 79 as eligible for inclusion in collective proceedings.”  Stay tuned for our analysis of this landmark decision.

Update:  Our colleagues at the UK Finance Disputes and Regulatory Investigations Blog have summarized the judgment here.

The CFPB Issues Final Arbitration Rule Amid Uncertainty and Controversy: Will Its Gamble Pay Off?

Credit CardsOn July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued its final rule precluding class action waivers in arbitration agreements in many consumer financial services contracts.  The much-anticipated final rule comes more than a year after the CFPB issued its proposed rule, which was based on the CFPB’s March 2015 study of consumer arbitration required by Section 1028 of the Dodd-Frank Act.  The CFPB received over 110,000 comments to its proposed rule, and notwithstanding strong opposition from the financial services industry, on July 10, the CFPB issued a final rule that is largely unchanged from the proposed rule.  For our discussion of the CFPB’s proposed arbitration rule, please see our client alert from May 2016.
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UPDATE: U.K.’s First Ever Class Action Withdrawn, Applicant Agrees to Pay Over £300,000 in Costs to Defendant

Signing a contractThe U.K.’s first ever application for an opt-out Collective Proceedings Order (the equivalent of a motion for class certification) has been withdrawn.

We earlier reported that the U.K.’s Competition Appeal Tribunal adjourned the proceedings in Dorothy Gibson v. Pride Mobility Products Ltd. to allow the proposed class representative (Gibson) to amend and refile her application.  However, rather than narrow the putative class definition in accordance with the Tribunal’s guidance, Gibson informed the Tribunal on May 5th that she would not further pursue her application.  Law360 reported that “[a]fter reassessing the value of the claim as required with her expert, [Gibson] decided the case is not worth enough to proceed given the costs versus potential benefits for class members.”

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Weekly Global Class Action Roundup – April 21, 2017

Weekly Round Up

In this week’s roundup, a class action against Deloitte involving attorney document reviewers is certified in Canada, a Chinese antitrust class action against Apple, and Canadian courts approve a settlement in a VW “defeat device” class action.

McGill v. Citibank, N.A.: Is the California Supreme Court Setting Up Another Showdown with the United States Supreme Court Over Arbitration?

Credit CardsOn April 6, 2017, in a unanimous decision, the California Supreme Court held that an arbitration agreement in Citibank’s credit card contract that purportedly waived the plaintiff’s right to seek public injunctive relief under the Consumers Legal Remedies Act (CLRA), the Unfair Competition Law (UCL), and the False Advertising Law (FAL) in any forum was unenforceable as against California public policy.

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In U.K.’s First Ever Class Action, Tribunal Adopts Canadian Approach to Class Certification

Signing a contractOn March 31, 2017, the U.K.’s Competition Appeal Tribunal issued its judgment on the first-ever application for an opt-out Collective Proceedings Order (the equivalent of a motion for class certification) under the regime set forth in the Consumer Rights Act 2015 (“CRA”). Although the Tribunal ultimately allowed the claimant to amend and refile her application, its analysis of the CRA’s certification requirements provides crucial guidance on how it will view pending and future class actions.

The case, Dorothy Gibson v. Pride Mobility Products Ltd, is a follow-on action from a finding by the Office of Fair Trading that Pride – one of the largest suppliers of mobility scooters in the U.K. – had violated the Competition Act 1998 by entering into agreements with its dealers so that the latter would not advertise certain models of mobility scooters below prices set by Pride. The proposed class representative brought claims on behalf of approximately 30,000 consumers who alleged they overpaid for their mobility scooters as a result of Pride’s conduct.

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