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9th Circuit holds shipping company’s online arbitration agreement is valid
On May 30, the U.S. Court of Appeals for the 9th Circuit denied a plaintiff’s writ of mandamus challenging the district court’s order compelling arbitration of the plaintiff’s claims against a national shipping company. According to the opinion, a customer filed a putative class action complaint alleging the company “systematically overcharges” customers by applying delivery surcharge rates through third-parties, which are higher than the company’s advertised rates. The company moved to compel arbitration because the customer enrolled in a free, optional program offered by the company that provides tracking and managing services of packages; and that enrollment in the program required the customer to agree to arbitrate all claims related to the company’s shipping services. The customer argued that while he checked the box agreeing to the service terms and technology agreement when enrolling, he should not be bound by the arbitration agreement because it was, among other things “so inconspicuous that no reasonable user would be on notice of its existence.” The district court rejected the customer’s arguments and granted the motion to compel arbitration.
On review of the writ of mandamus, the appellate court acknowledged that “locating the arbitration clause at issue here requires several steps and a fair amount of web-browsing intuition,” detailing that “...the first hyperlink [is] to the 96-page Technology Agreement. The user must then read the [service terms] and understand that they incorporate [additional terms and conditions of service]…. the user must visit the full [company] website, intuitively find the link [to the additional terms and conditions of service] at the bottom of the webpage, select it, and locate yet another link to the [terms and conditions of service]” in order to read the document and locate the arbitration clause. The appellate court held that the “extraordinary remedy of mandamus” could not be awarded because it could not say “with ‘definite and firm conviction’ that the district court erred by finding the incorporation [of the terms and conditions of service] valid” and found that there is no question the customer affirmatively assented to the terms. While it did not impact its analysis, the appellate court noted that the company’s service terms document now includes a hyperlink to the terms and conditions of service and expressly informs the user that the terms contain an arbitration provision.
District court rules customers bound by arbitration agreement in credit inquiry dispute
On May 28, the U.S. District Court for the Southern District of Florida ruled that customers who financed a vehicle through a Florida car dealership were bound by the arbitration provision contained within a signed purchase order and retail installment sale contact. The customer plaintiffs contended that the defendant car dealership violated the FCRA and state law when it ran a “hard” credit inquiry on them instead of the “soft” credit inquiry they had authorized on a pre-approval financing form completed on the defendant’s website. As a result, the plaintiffs’ credit scores were affected. Based on the arbitration provisions contained in the purchase order and retail sale installment contract, the defendant filed a motion to compel arbitration. The plaintiffs argued that they were not bound by the arbitration agreements because they were signed a few days after the dealership ran the unauthorized credit check. However, the court held that it did not matter when the agreement was signed, stating that the “[p]laintiffs’ sole argument is that the [hard credit report check], does not in any way ‘relate to’ the purchasing documents which contain the arbitration clauses, and thus the arbitration clauses cannot be applied retroactively to encompass disputes arising from that transaction. The [c]ourt disagrees.” In granting the motion to compel arbitration, the court explained that the plaintiffs’ argument was “essentially one relating to scope and arbitrability, issues that the parties clearly and unmistakably agreed to arbitrate.”
District court approves final settlement resolving breach of contract and conversion claims related to debit card overdraft fees
On May 28, the U.S. District Court for the Southern District of California granted final approval to a roughly $24.5 million settlement resolving class action allegations that a credit union unfairly charged optional overdraft protection fees on certain debit card transactions. In 2017, the plaintiffs challenged the credit union’s practices, alleging breaches of contract, covenant of good faith and fair dealing, and conversion. Specifically, the plaintiffs challenged whether the language in the accountholder agreements prohibited the credit union from assessing and collecting optional overdraft protection fees on certain debit card transactions that were authorized against positive available account balances. In 2018, the court granted in part and denied in part the credit union’s motion to dismiss, allowing the plaintiffs’ breach of contract and conversion claims to proceed. The parties entered into settlement discussions, and reached an agreement. Under the terms of the settlement, the credit union will provide $24.5 million in relief to class members, along with approximately $6.1 million in attorneys’ fees. However, the court denied a request to reimburse plaintiffs’ expert witness for work completed after the settlement agreement was preliminary approved last year, stating “as a matter of awarding funds from the [s]ettlement [f]und, the [c]ourt cannot find reasonable the $109,100.00 price tag for an exercise that appears to post-date the preliminary approval order and which merely confirmed what the parties already understood to be the class’s potential recovery.”
9th Circuit revives FCRA suit against credit reporting agency
On May 17, the U.S. Court of Appeals for the 9th Circuit revived a putative class action lawsuit against a national credit reporting agency for allegedly failing to follow reasonable procedures to assure maximum possible accuracy in the plaintiffs’ credit reports, in violation of the FCRA. According to the opinion, the credit reporting agency failed to delete all the accounts associated with a defunct loan servicer, despite statements claiming to have done so in January 2015. As of October 2015, 125,000 accounts from the defunct loan servicer were still being reported, and the accounts were not deleted until April 2016. A consumer filed the putative class action alleging the credit reporting agency violated the FCRA by continuing to report her past-due account, even after deleting portions of the positive payment history on the account. The district court granted summary judgment in favor of the credit reporting agency on the consumer’s claim that the credit reporting agency failed to “follow reasonable procedures to assure maximum possible accuracy” in her credit report.
On appeal, the court determined that a “reasonable jury could conclude that [the credit reporting agency]’s continued reporting of [the account], either on its own, or coupled with the deletion of portions of [the consumer’s] positive payment history on the same loan, was materially misleading.” Moreover, the appellate court noted that a jury could conclude that the credit reporting agency’s reading of the FCRA “runs a risk of error substantially greater than the risk associated with a reading that was merely careless,” and that the length of delay in implementing the decision to delete the defunct loan servicers accounts “entail[ed] ‘an unjustifiably high risk of harm that is either known or so obvious that it should be known.’”
2nd Circuit: Unsolicited text messages are sufficient injury under TCPA
On April 30, the U.S. Court of Appeals for the 2nd Circuit held that the receipt of unsolicited text messages, absent any additional injury, is sufficient to demonstrate injury-in-fact in a TCPA class action. According to the opinion, consumers filed a class action lawsuit against a retail store for sending unsolicited text messages in violation of the TCPA. The district court approved a settlement between the parties and certified the class despite various objections, including one from a third-party defendant who argued the consumers lacked standing under the 2016 Supreme Court opinion Spokeo, Inc. v. Robins, because “they alleged only a bare statutory violation and statutory damages cannot substitute for concrete harm.”
On appeal, the appellate court first rejected the third-party defendant’s standing to appeal the district court’s decision because it had not been “‘formally strip[ped]’ of any claim or defense, it lacks standing to pursue its appeal” in the underlying class action. Notwithstanding the lack of standing by the third-party defendant, the appellate court then went on to address the jurisdictional standing issues raised against the consumers. The court reasoned that, even though the third party that raised the jurisdictional question had been dismissed, the court had an “independent obligation to satisfy [itself] of the jurisdiction” of the appellate and district court. The appellate court concluded that the consumers sufficiently alleged “nuisance and privacy invasion” by the unsolicited text messages, which “are the very harms with which Congress was concerned when enacting the TCPA.” Because the harms identified are “of the same character as harms remediable by traditional causes of action,” the appellate court held the consumers sufficiently demonstrated injury-in-fact as required by Article III.
3rd Circuit: District court erred in voiding all cash advance agreements in NFL concussion settlement litigation
On April 26, the U.S. Court of Appeals for the 3rd Circuit, in a consolidated class action, concluded that a district court went “too far” in voiding all of the cash advance arrangements between NFL concussion class members and third party lenders in their entirety. According to the opinion, in December 2017, the district court “issued an order purporting to void in their entirety all assignment agreements” where class members assigned a portion of their settlements from the 2015 NFL concussion injury litigation, concluding that it was “necessary to protect vulnerable class members from predatory funding companies.”
On appeal, the 3rd Circuit addressed the merits in three of the four timely appeals, noting that the fundamental question was whether the district court had the authority to void the agreements. The appellate court held that the district court retained the authority to enforce and administer the settlement because there was an anti-assignment language in the settlement agreement. The appellate court upheld on the district court’s interpretation of the anti-assignment provision, holding that “any true assignments contained within the cash advance agreements—that is, contractual provisions that allowed the lender to step into the shoes of the player and seek funds directly from the settlement fund were void.” However, the appellate court concluded that the district court “went beyond its authority” by purportedly voiding the agreements in their entirety, because there are portions of some of the cash advance agreements that may still be enforceable after the true assignments are voided, such as ones structured as a non-assignment loan agreement. Since the district court’s authority “does not extend to how class members choose to use their settlement proceeds after they are disbursed,” the appellate court reversed in part the December 2017 order, leaving certain cash advance agreements enforceable to the extent rights are retained after the true assignments are voided.
4th Circuit: RESPA time-bar annulled by fraudulent concealment
On April 26, the U.S. Court of Appeals for the 4th Circuit reversed a district court’s dismissal of five plaintiffs’ putative class actions alleging RESPA violations, concluding that the claims were not time-barred due to the fraudulent concealment tolling doctrine. According to the opinion, between 2009 and 2014, several banks and mortgage companies (collectively, “defendants”) referred plaintiffs to a title company to procure title insurance and obtain settlement services, which allegedly provided the defendants with “several forms of ‘unearned fees and kickbacks’ to induce those referrals” in violation of RESPA. The plaintiffs alleged the kickbacks came in the form of payments to advertising and marketing shell companies for the referrals, which would then make payments to brokers or loan officers of the defendants. The district court dismissed the class actions because the first of the five class actions was not filed until June 2016, which was well beyond the one-year statute of limitations under RESPA.
On appeal, the plaintiffs argued that they were entitled to relief under RESPA because the kickback scheme was allegedly “fraudulently concealed” by the defendants by using “sham” entities and not reporting the payments on the plaintiffs’ HUD-1 settlement statements. The 4th Circuit agreed, concluding that the district court erred in dismissing the plaintiffs’ claims. The appellate court noted that Congress did not intend to “allow individuals and entities that conceal their unlawful kickback schemes and other RESPA violations to reap the benefit of the statute of limitations as a defense.” Rejecting the defendants’ assertion that publicly-available information, including earlier court filings, should have “‘excited further inquiry’” by the plaintiffs to timely file the action, the appellate court emphasized that the fraudulent concealment doctrine requires only “reasonable diligence” and does not “necessarily hold individual borrowers to the diligence standard of combing court filings in potentially related cases, particularly when the borrower has no reason to be aware of the related cases.”
11th Circuit: Bank not obligated to investigate FCRA dispute
On April 25, the U.S. Court of Appeals for the 11th Circuit affirmed a district court’s dismissal of a putative class action against a national bank, finding that the plaintiff failed to show an investigation would reveal the bank inaccurately furnished information to credit reporting agencies (CRAs). According to the opinion, after the plaintiff failed to make payments on his mortgage, the bank reported the delinquencies to the three CRAs. A Florida circuit court entered a final judgment of foreclosure in the bank’s favor, which the plaintiff paid two years later after the account was transferred to a different lender. Two years after he paid the foreclosure judgment, the plaintiff noticed that the CRAs showed his account as past due despite the fact that the judgment had been paid. However, following an investigation, the CRAs confirmed that the information provided by the bank was accurate, since it reflected two years of missed payments that the plaintiff later contended he was not obligated to make due to the filing for the foreclosure action. The plaintiff filed a class action suit alleging the bank violated the FCRA by failing to report that he had paid off the foreclosure judgment. The district court dismissed the case with prejudice, ruling that the bank satisfied its obligations under the FCRA, and that the plaintiff failed to support his claim that the bank was obligated to report the payoff after it transferred the account.
On appeal, the 11th Circuit agreed with the district court, opining that because the plaintiff never claimed that the bank was informed of the past-due status dispute by the CRAs, the bank was not obligated to investigate under the FCRA. The court noted that the plaintiff “never alleged that [the bank] received notification from the CRAs that he disputed his account's past-due status as of July 2017,. . .that the CRAs provided notification of any such dispute to [the bank],. . .or even that he contacted the CRAs to dispute that aspect of his credit reports.” The plaintiff further argued that the filing of the foreclosure action and acceleration of the loan relieved him of the obligation to make monthly payments. The 11th Circuit was “unconvinced” by the argument and said that, nonetheless, “[w]hether [the plaintiff] was obligated to make payments on the mortgage after the Foreclosure Action was filed is a currently unresolved legal, not a factual, question. Thus, even assuming [the bank] furnished information that turned out to be legally incorrect under some future ruling, [the bank’s] purported legal error was an insufficient basis for a claim under the FCRA.”
11th Circuit: Increased risk of identity theft is sufficient to bring FACTA claims
On April 22, the U.S. Court of Appeals for the 11th Circuit affirmed a district court’s ruling that including too many digits of a consumer’s credit card account number on a receipt was sufficient to constitute a concrete injury even if the consumer’s identity was not stolen. Under the Fair and Accurate Credit Transactions Act (FACTA), merchants are prohibited from including more than the final five digits of a consumer’s credit card number on a receipt. According to the opinion, the consumer filed a class action suit against a chocolate company, alleging that one of its stores printed the first six and last four digits of his account number on a receipt, which exposed the class members “to an elevated risk of identity theft.” When the parties sought approval of a proposed settlement, two unnamed class members contested the settlement on the grounds that, among other things, the consumer/class representative lacked standing to sue because he had not suffered a concrete injury as defined in the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins. The district court, however, approved the settlement.
On appeal, the 11th Circuit held that an increased risk of identity theft is sufficient to bring claims under FACTA, and that the class representative’s “alleged injury is ‘particularized’ because the heightened risk of identity theft affected him ‘in a personal and individual way’—it was his credit card number that appeared on the receipt.” Moreover, the appellate court noted, “In our view, if Congress adopts procedures designed to minimize the risk of harm to a concrete interest, then a violation of that procedure that causes even a marginal increase in the risk of harm to the interest is sufficient to constitute a concrete injury.”
Divided Supreme Court says class arbitration is invalid without explicit permission
On April 24, the U.S. Supreme Court in a 5-4 vote held that because an arbitration agreement did not explicitly permit class arbitrations, only individual arbitrations are allowed. The case began when an employee of a lighting retailer (petitioner) filed a class-action suit against the company after a hacker—who posed as a company official—persuaded an employee at the company to disclose the tax information of roughly 1,300 workers and then file a fraudulent tax report in the petitioner’s name. The company moved to dismiss the case, arguing that the petitioner was required to bring his claims in individual arbitration under the Supreme Court’s 2010 ruling in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., which bars class arbitration when there is no “contractual basis for concluding” that the parties agreed to it. The district court granted the motion to compel arbitration but rejected the company’s request for individual arbitration and authorized arbitration on a classwide basis. On appeal, the 9th Circuit affirmed the district court’s decision—agreeing that the ambiguous agreement permitted class arbitration—and “followed California law to construe the ambiguity against the drafter”—in this instance, the company who drafted the agreement.
The company petitioned the Supreme Court to consider, consistent with the Federal Arbitration Act (FAA), whether an ambiguous agreement can provide the “contractual basis” required for compelling class arbitration. The majority deferred to the 9th Circuit’s conclusion that the arbitration agreement in question was ambiguous as to whether class arbitration was an option, and wrote that the lack of clarity cannot provide the “contractual basis” required under Stolt-Nielsen to compel class arbitration. Notably, the majority highlighted that “shifting from individual to class arbitration is a ‘fundamental’ change. . .that ‘sacrifices the principal advantage of arbitration’ and ‘greatly increases risks to defendants.” Citing to “crucial differences” between individual and class arbitration, the majority wrote that “courts may not infer consent to participate in class arbitration absent an affirmative ‘contractual basis for concluding that the party agreed to do so.’” The majority also stated that the 9th Circuit's decision to rely upon California’s contra proferentem doctrine to interpret contractual ambiguities against the drafter is “flatly inconsistent with ‘the foundational FAA principle that arbitration is a matter of consent.’”
The four justices who voted against the decision all wrote dissents. Among other things, Justice Kagan wrote that the FAA stipulates that state law governs the interpretation of arbitration agreements, provided the law handles other types of contracts in the same way. “Today’s opinion is rooted instead in the majority’s belief that class arbitration ‘undermine[s] the central benefits of arbitration itself. [] But that policy view—of a piece with the majority's ideas about class litigation—cannot justify displacing generally applicable state law about how to interpret ambiguous contracts,” Justice Kagan stated. Justice Breyer, who joined Justices Ginsburg’s and Kagan’s dissents in full, also wrote that the 9th Circuit lacked jurisdiction over the company’s appeal, and consequently, the Supreme Court lacks jurisdiction as well.