Recent Legal News Stories

Case Summaries

Consumer Protection

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[02/22] Southwestern Bell Tel. Co. v. Mktg. on Hold Inc.
In an interlocutory appeal of a trial court's class certification order, where the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees, the judgment of the court of appeals is reversed and the class decertified where: 1) the assignments are valid and provide standing; 2) the class representative's claims are typical of the other class members' claims; 3) common questions of law or fact predominate; but 4) the putative class representative failed to establish that it adequately represents the claim.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

[02/12] Thorogood v. Sears Roebuck & Co.
In plaintiff's class action lawsuit claiming that defendant-company sold dryers that were misrepresented as containing stainless steel drums in violation of the Tennessee Consumer Protection Act, dismissal of the suit for lack of subject matter jurisdiction, after a remand following decertification, is affirmed as the district judge was within his discretion in deciding that no attorney's fees should be awarded.

[02/12] Talley v. US Dep't of Agric.
In plaintiff's suit against the U.S. Department of Agriculture under the Fair Credit Reporting Act (FCRA) claiming that the Department violated the Act's requirements by reporting that plaintiff is behind on a loan that has been paid off on four separate occasions, judgment in favor of plaintiff is affirmed where: 1) the Tucker Act waives sovereign immunity for compensatory-damages claims under the Fair Credit Reporting Act; 2) the district court had subject matter jurisdiction under 28 U.S.C. section 1331 and 15 U.S.C. section 1681p; 3) attorney's fees as part of costs do not count toward the threshold set forth in the Tucker Act, any more than the costs themselves do; and 4) appellate jurisdiction exists as plaintiff appealed to section 1331 and section 1681p and did not invoke the Tucker Act as a grant of subject matter jurisdiction.

[02/09] Chiang v. Verizon New England, Inc.
In plaintiff's suit against Verizon seeking more than $1 million for claimed violations of his rights under the Fair Credit Reporting Act (FCRA) and under the Fair Debt Collection Practices Act (FDCPA) based on Verizon's handling of the parties' prior disputes resolved in state court, summary judgment in favor of defendant is affirmed where: 1) under section 1681s-2(b) of the FCRA, there is a private cause of action, the investigation must be reasonable, this test is objective, and plaintiff bears the burden of proof; 2) a section 1681s-2(b) claim requires plaintiff to show actual inaccuracies that a furnisher's objectively reasonable investigation would have been able to discover; 3) on the FCRA claims, plaintiff failed to raise a genuine issue of material fact on two issues on which he bore the burden; and 4) on plaintiff's FDCPA claim, there is no material dispute of fact that Verizon is not a debt collector.

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Injury & Tort Law

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/05] Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.

[03/05] Howard v. St. Germain
In an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case, the order is affirmed where the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/03] Teachers' Ret. Sys. of La. v. PriceWaterhouseCoopers LLP
In a shareholder derivative action brought on behalf of AIG for breach of fiduciary duty against PricewaterhouseCoopers under New York law, the Delaware Supreme Court certifies the following question to the New York Court of Appeals: Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?

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