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Appellate Court affirms defendant waived right to arbitration
On August 18, a Florida District Court of Appeals affirmed a district court’s decision that an auto dealer (defendant) waived its right to compel arbitration after failing to mention an arbitration provision until days before the hearing. The plaintiffs filed a class action complaint alleging that the defendant engaged in deceptive practices regarding fees on car sales. While the defendant raised seven affirmative defenses, it did not raise arbitration, even though an arbitration provision was included in the contract between the defendant and each vehicle purchaser. The defendant moved for judgment on the pleadings and argued “that the type of damages sought in the suit were unavailable under the Florida Deceptive and Unfair Trade Practices Act,” but the court denied the motion. According to the opinion, days before the hearing, the defendant “filed its motion to compel arbitration ‘in opposition to plaintiff’s motion for class certification,’ raising arbitration as an issue for the first time fourteen months after the class action complaint had been filed,” contending that it did not waive its right to arbitrate due to prior filings being defensive in nature. Later, the defendant argued that even if the court found a waiver as to the named plaintiffs, it could not have waived its right to arbitrate with the unnamed class members. The court ruled that the defendant “engaged in class discovery without objecting to it or preserving its right to compel arbitration with the unnamed class members.”
In making its decision, the appellate court cited a 2018 decision by the U.S. Court of Appeals for the Eleventh Circuit, which ruled that a bank had not waived its arbitration rights regarding the unnamed class members because it expressly stated it wished to preserve arbitration rights against those class members when the matter became ripe (covered by InfoBytes here). The appellate court agreed with the court, finding that the defendant acted inconsistently with regard to arbitration in the dispute and therefore waived any right to force the plaintiffs into arbitration.
Florida District Court of Appeals partially affirms and partially reverses ruling against national bank
On August 13, a Florida District Court of Appeals affirmed in part and reversed in part a judgment against a national bank (defendant) awarding a payment processor approximately $2 million in compensatory damages and $5 million in punitive damages. The judgment, based on a jury verdict, awarded punitive damages as a result of the conduct of the bank’s relationship manager, who negligently misrepresented to a payment processor (plaintiff) that the account of the bank’s customer, a check authorization service, was in good standing when really the bank had previously terminated the relationship. On appeal, the court found that the relationship manager was considered a mid-level employee with limited managerial authority. Therefore, the appeals court determined that the defendant could not be held directly liable for his conduct, stating that “[the employee] was not a managing agent for purposes of imposing direct liability for punitive damages,” and “the trial court erred in denying [the defendant’s] motion for judgment notwithstanding the verdict on [the plaintiff’s] punitive damage claim.”
CFPB appeals decision on Prepaid Accounts Rule
On August 16, the CFPB filed its opening brief in the agency’s appeal of a district court’s December 2020 decision, which granted a payment company’s motion for summary judgment and vacated two provisions of the Bureau’s Prepaid Account Rule: (i) the short-form disclosure requirement “to the extent it provides mandatory disclosure clauses”; and (ii) the 30-day credit linking restriction. As previously covered by InfoBytes, the Bureau claimed that it had authority to enforce the mandates under federal regulations, including the EFTA, TILA, and Dodd-Frank, but the district court disagreed, concluding, among other things, that the Bureau acted outside of its statutory authority with respect to the mandatory disclosure clauses of the short-form requirement in 12 CFR section 1005.18(b) by presuming that “Congress delegated power to the Bureau to issue mandatory disclosure clauses just because Congress did not specifically prohibit them from doing so.” In striking the mandatory 30-day credit linking restriction under 12 CFR section 1026.61(c)(1)(iii), the district court determined that “the Bureau once again reads too much into its general rulemaking authority,” and that neither TILA nor Dodd-Frank vest the Bureau with the authority to promulgate substantive regulations on when consumers can access and use credit linked to prepaid accounts. Moreover, the court deemed the regulatory provision to be a “substantive regulation banning a consumer’s access to and use of credit” under the disguise of a disclosure, and thus invalid.
In its appeal, the Bureau urged the U.S. Court of Appeals for the D.C. Circuit to overturn the district court’s ruling, arguing that both the EFTA and Dodd-Frank authorize the Bureau to promulgate rules governing disclosures for prepaid accounts. “The model-clause provision simply ensures that institutions will always have a surefire way of complying with the statute, even when the Bureau’s regulations do not specify how information should be disclosed,” the CFPB said, stressing that “[n]either that provision nor anything else forecloses—let alone unambiguously forecloses—rules requiring disclosures to present specified content in a specified format so that consumers are better able to find, understand, and compare products’ terms.” The decision to adopt such rules, the Bureau added, is entitled to deference. According to the Bureau, the Prepaid Account Rule “does not make any specific disclosure clauses mandatory,” and companies are permitted to use the provided sample disclosure wording or use their own “substantially similar” wording. Additionally, the Bureau argued, among other things, that “[b]y mandating optional model clauses while remaining silent about content and formatting requirements, Congress did not ‘circumscribe[] the [agency’s] discretion’ to adopt such requirements.” Instead, the Bureau contended, “whether to adopt content and formatting requirements is left ‘to agency discretion.’” Moreover, the disputed requirements “fit comfortably” within its power to regulate disclosure standards under EFTA and Dodd-Frank, the Bureau argued, adding that the law “authorizes the Bureau to ‘prescribe rules to ensure that the features of any consumer financial product or service … are fully, accurately, and effectively disclosed to consumers.’”
6th Circuit: Consumer lacks standing to bring FDCPA voice message claims
On August 16, the U.S. Court of Appeals for the Sixth Circuit held 2-1 that a plaintiff lacked Article III standing to bring claims against a debt servicer defendant for allegedly violating the FDCPA by failing to properly identify itself in voice messages. The plaintiff filed suit in 2019 alleging violations of three FDCPA provisions, including that the defendant: (i) failed to identify itself as a debt collector in its voice messages; (ii) failed to identify the “true name” of its business, thus causing the plaintiff to send a cease-and-desist letter to the wrong entity; and (iii) placed calls without meaningfully disclosing its identity. The district court granted summary judgment in favor of the defendant, ruling that because the defendant did not qualify as a “debt collector” under the FDCPA it was not subject to the statute’s requirements.
On appeal, the 6th Circuit raised the issue of standing “for the first time on appeal,” concluding that the plaintiff “does not automatically have standing simply because Congress authorizes a plaintiff to sue a debt collector for failing to comply with the FDCPA.” Pointing out that the appeal “centers on whether [the plaintiff] suffered a concrete injury,” the appellate court rejected the plaintiff’s arguments that the defendant’s statutory violations constituted a “concrete injury” and “that the confusion he suffered, the expense of counsel, and the phone call that he received from [the defendant] qualify as independent concrete injuries.” Among other things, the 6th Circuit noted that although the plaintiff claimed that the FDCPA “created an enforceable right to know who is calling about a debt and that [the defendant’s] failure to identify its full name concretely injured him,” the plaintiff ultimately failed to demonstrate that the defendant’s “failure to disclose its full identity in its voice messages resembles a harm traditionally regarded as providing a basis for a lawsuit.” Additionally, the appellate court determined that “confusion alone is not a concrete injury for Article III purposes,” and that the plaintiff “cannot show concrete harm simply by pointing to the cost of hiring counsel.” Moreover, because the plaintiff “did not clearly assert in his complaint that he received—let alone was harmed by—an additional phone call, [the appellate court] need not decide whether an unwanted call might qualify as a concrete injury.” The 6th Circuit vacated the district court’s order entering summary judgment and remanded the case to be dismissed for lack of jurisdiction.
9th Circuit revives TCPA suit against insurance servicer
On August 10, the U.S. Court of Appeals for the 9th Circuit revived a lawsuit against an insurance servicing company (defendant) for allegedly using both an automated telephone dialing system and an artificial or pre-recorded voice to place a job-recruitment call without obtaining the plaintiff’s consent. According to the opinion, the plaintiff filed a suit alleging, among other things, TCPA violations after receiving the pre-recorded voicemail from the defendant regarding his “industry experience” and that the defendant is “looking to partner with select advisors in the Los Angeles area.” The district court dismissed the plaintiff’s action under Federal Rule of Civil Procedure 12(b)(6) for failing “to state a claim upon which relief can be granted,” holding that the TCPA and the relevant implementing regulation do not prohibit conducting job recruitment robocalls to a cellular telephone number. In addition, the district court “read the Act as prohibiting robocalls to cell phones only when the calls include an ‘advertisement’ or constitute ‘telemarketing,’ as those terms have been defined” by the FCC. The court found that since the plaintiff admitted that the job recruitment call he received did not involve advertising or telemarketing, he had not adequately pleaded a violation of the TCPA.
On the appeal, a three-judge panel of the 9th Circuit determined that the district court misread the TCPA and the implementing regulation when dismissing the plaintiff’s suit and remanded the case for further proceedings. The appellate court noted that the FCC provision was intended to tighten the consent requirement for robocalls that involve advertising or telemarketing, but the lower court incorrectly perceived the provision as “effectively removing robocalls to cellphones from the scope of the TCPA’s coverage unless the calls involve advertising or telemarketing.” Moreover, the panel wrote that “[t]he applicable statutory provision prohibits in plain terms ‘any call,’ regardless of content, that is made to a cellphone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called.”
2nd Circuit: Bankruptcy rule on post-petition mortgage fee notices does not authorize punitive sanctions
On August 2, the U.S. Court of Appeals for the Second Circuit vacated a sanctions order imposed on a mortgage servicer in three chapter 13 cases. According to the opinion, the servicer sent the debtors monthly mortgage statements listing fees that allegedly had not been properly disclosed in the three bankruptcy cases. The United States Bankruptcy Court for the District of Vermont then sanctioned the mortgage servicer $225,000 for violating court orders issued in two of the debtors’ cases, which had declared the debtors current on their mortgages and enjoined the servicer from challenging that fact in any other proceeding. The bankruptcy court also sanctioned the servicer $75,000 for violating Bankruptcy Rule of Procedure 3002.1, which requires creditors to provide formal notice to a debtor and trustee of new post-petition fees and charges and authorizes the bankruptcy court to impose sanctions for non-compliance.
On appeal, the 2nd Circuit held that Rule 3002.1 “does not authorize punitive monetary sanctions,” and that the servicer “did not, as a matter of law, violate the court orders.” The appellate court added that “[a] broad authorization of punitive sanctions is a poor fit with Rule 3002.1’s tailored enforcement mechanism and limited purpose,” noting that the bankruptcy court in this case is “apparently the first and only one to impose punitive monetary sanctions under the rule.” While the bankruptcy court raised “serious concerns” about whether the servicer “is making a good faith effort to comply with Rule 3002.1,” the appellate court concluded that “[a] concern, even a serious concern, is not a finding.” Concluding that the $225,000 sanction was based on an improper finding of contempt, the appellate court vacated and reversed the order.
5th Circuit overturns ruling that insurer must defend data breach
On July 21, the U.S. Court of Appeals for the Fifth Circuit reversed a lower court’s decision to grant summary judgement for a Houston-based insurer (defendant), finding that publication of material that violates a person’s right of privacy under the insurer’s policy can include making credit card information generally available. According to the opinion, a retail company (plaintiff) was sued by a branch of a national bank (bank) for alleged violations of an agreement that led to a $20 million data breach dispute. In response, the plaintiff filed a separate suit in Texas court against the defendant for breaching the insurance policy. The district court granted the defendant’s motion and dismissed all the claims. In doing so, “the district court held that the bank’s complaint did not allege a ‘publication’ of material that violated a person’s right to privacy because it asserted only that ‘[a] third party hacked into [the] credit card processing system and stole customers’ credit card information.’” Furthermore, the district court found that the complaint also did not allege a violation of a person’s right to privacy because the bank involves the payment processor’s contract claims, not the cardholders’ privacy claims.
On appeal, the 5th Circuit adopted a broad definition of “publication” because such term was undefined, and found that the contract dispute brought by the bank against the plaintiff “plainly alleges” that hackers published the credit card information of the plaintiff customers in several ways. First, the bank accused the plaintiff of publishing its customers’ credit cards to hackers. Then, the hackers allegedly published the information by using it to make fraudulent purchases. The appellate court then examined whether the defendant “has a duty to defend [the plaintiff] in the [u]nderlying [bank] [l]itigation.” The appellate court applied Texas’s “eight-corners rule,” which compares the “four corners of the [p]olicy to the four corners of the [bank’s] complaint.” In doing so, the appellate court found that the bank’s “alleged injuries arise from the violations of customers' rights to keep their credit card data private,” and “[u]nder the eight-corners rule, [the defendant] must defend [the plaintiff] in the underlying [bank’s] litigation.”
6th Circuit: CDC was not authorized to implement eviction moratorium
On July 23, the U.S. Court of Appeals for the Sixth Circuit held that statutory language did not authorize the CDC to implement a moratorium on evictions in response to the Covid-19 pandemic. The plaintiffs, a group of rental property owners and managers, filed a lawsuit seeking declaratory judgment and a preliminary injunction, claiming the CDC’s order exceeded the government’s statutory grant of power and violated the Constitution and the Administrative Procedures Act. The district court found that the moratorium exceeded the government’s statutory authority under 42 U.S.C. § 264(a) and ruled in favor of the plaintiffs on the declaratory judgment claim. The 6th Circuit denied the government’s motion for an emergency stay pending appeal, citing that the government was unlikely to succeed on the merits.
In affirming the district court’s ruling and addressing the merits in the current order, the 6th Circuit reviewed whether Section 264(a) of the Public Health Act of 1944 allowed the CDC to issue its moratorium. The appellate court held that while the statute allows the Surgeon General, with the approval of the Secretary, to make and enforce such regulations as are “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession,” it “does not grant the CDC the power it claims.” Additionally, the appellate court concluded that an eviction moratorium did not fit the mold of actions permitted under the statute’s language. The 6th Circuit emphasized that even if the language of the statute could be construed more expansively, it could not “grant the CDC the power to insert itself into landlord-tenant relationships without clear textual evidence of Congress’s intent to do so.” Writing that “[a]gencies cannot discover in a broadly worded statute authority to supersede state landlord-tenant law,” the appellate court explained that the government’s interpretation of the statute presented a nondelegation problem, which “would grant the CDC director near-dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions.” Furthermore, the appellate court concluded that any potential ratification taken by Congress last December when former President Trump signed the Consolidated Appropriations Act, which, among other things, extended the expiration date of the eviction moratorium, “did not purport to alter the meaning of § 264(a), so it did not grant the CDC the power to extend the order further than Congress had authorized.”
7th Circuit vacates $59 million CFPB penalty against mortgage-assistance relief companies
On July 23, the U.S. Court of Appeals for the Seventh Circuit vacated a 2019 restitution award in an action brought by the CFPB against two former mortgage-assistance relief companies and their principals (collectively, “defendants”) for violations of Regulation O. As previously covered by InfoBytes, in 2014, the CFPB, FTC, and 15 state authorities took action against several foreclosure relief companies and associated individuals, including the defendants, alleging they made misrepresentations about their services, failed to make mandatory disclosures, and collected unlawful advance fees. The district court’s 2019 order (covered by InfoBytes here) held one company and its principals jointly and severally liable for over $18 million in restitution, while another company and its same principals were held jointly and severally liable for nearly $3 million in restitution. Additionally, the court ordered civil penalties totaling over $37 million against company two and four principals.
In 2021, the principals urged the 7th Circuit to vacate the judgment, arguing, among other things, that the restitution order used the company’s net revenues instead of net profits in determining restitution and that they were exempt from liability because Regulation O exempts properly licensed attorneys engaged in providing mortgage-assistance relief services as part of the practice of law, provided they comply with state law and regulations. The principals also disagreed with the district court’s finding that they acted recklessly in calculating the civil penalty amount, contending that “they were not aware of a risk that their conduct was illegal.”
The 7th Circuit reviewed the application of the U.S. Supreme Court’s ruling in Liu v. SEC, which held that a disgorgement award cannot exceed a firm’s net profits (covered by InfoBytes here). While the Bureau argued that Liu focused on disgorgement and not restitution, the appellate court held that the Bureau’s interpretation was “too narrow a reading of Liu.” According to the appellate court, “Liu’s reasoning is not limited to disgorgement; instead, the opinion purports to set forth a rule applicable to all categories of equitable relief, including restitution.” The appellate court vacated the restitution award and remanded the suit for recalculation based on net profits.
With respect to the alleged violations of Regulation O, the appellate court affirmed the district court’s ruling, concluding that attorneys who are subject to liability for violating consumer laws “cannot escape liability simply by virtue of being an attorney.” However, the appellate court vacated the recklessness finding in the civil penalty calculation pertaining to certain of the defendants, writing that “[a]lthough we have found that they were not engaged in the practice of law, the question was a legitimate one. We consider it a step too far to say that they were reckless—that is, that they should have been aware of an unjustifiably high or obvious risk of violating Regulation O.” The appellate court ordered the district court to apply the penalty structure for strict-liability violations. Additionally, the 7th Circuit remanded an injunction which permanently banned the principals from providing “debt relief services,” finding that the injunction requires “some tailoring” as the violations at issue involved mortgage-relief services and not debt-relief services.
2nd Circuit says private student loans not explicitly exempt from bankruptcy discharge
On July 15, the U.S. Court of Appeals for the Second Circuit held that private student loans are not explicitly exempt from the discharge of debt granted to debtors in a Chapter 7 bankruptcy. According to the opinion, the plaintiff filed for Chapter 7, which led to an ambiguous discharge order as to how it applied to his roughly $12,000 direct-to-consumer student loans. After the plaintiff received the discharge in 2009, the student loan servicer started collection efforts. Because the plaintiff did not know whether the discharge applied to his student loans, he repaid the loans in full. In 2017, the plaintiff moved to reopen his bankruptcy case and filed an adversary proceeding against the student loan servicer and the servicer’s predecessor (collectively, “defendants”), seeking a determination that his student loans were in fact discharged during the original proceeding. The servicer moved for dismissal claiming the loans were exempt under 11 U.S.C. § 523(a)(8)(A)(ii), but the bankruptcy judge denied the motion, ruling that the bankruptcy code “does not sweep in all education-related debt.” The district court subsequently certified the bankruptcy court’s order for interlocutory appeal.
On appeal, the 2nd Circuit reviewed whether the plaintiff’s private student loans could be discharged under bankruptcy. Under § 523(a)(8), the following types of student loans are exempt from discharge: (i) government or nonprofit institution student loans; (ii) obligations “to repay funds received as an educational benefit, scholarship, or stipend”; and (iii) qualified education loans. The defendants argued that the plaintiff’s loans fell into the “educational benefit” category, but the appellate court disagreed, concluding that § 523(a)(8) does not provide a blanket exception to the applicability of bankruptcy discharge to private student loans. In affirming the bankruptcy court’s ruling, the appellate court wrote, “if Congress had intended to except all educational loans from discharge under § 523(a)(8)(A)(ii), it would not have done so in such stilted terms.” The 2nd Circuit further added that “[i]nterpreting ‘educational benefit’ to cover all private student loans when the two terms listed in tandem describe ‘specific and quite limited kinds of payments that. . .do not usually require repayment,’. . .would improperly broaden § 523(a)(8)(A)(ii)’s scope.”