From Seyfarth’s Workplace Class Action Blog

Seyfarth Synopsis: Satisfying Rule 23(b)(3)’s predominance requirement is undoubtedly a challenge when it comes to a nationwide class. Among the many issues that arise is the extent to which varying state laws can impact whether questions of law or fact common to class members predominate over any questions affecting only individual members.  In In Re Hyundai & Kia Fuel Econ. Litig., No. 15-56014, 2019 WL 2376831 (9th Cir. June 6, 2019), after an en banc rehearing, the Ninth Circuit ruled that a district court did not abuse its discretion by failing to address varying state laws when granting class certification for settlement purposes. Drawing a distinction between class certification for litigation purposes and class certification for settlement purposes, the Ninth Circuit held that the variations in state law across the nationwide class did not defeat predominance.

In many respects, this decision – which rescinds the panel’s previous and controversial ruling that courts must address varying state consumer laws when certifying a settlement class – restores the standard for approval of class action settlements to what it has historically been in federal courts. Employers facing nationwide class claims in the Ninth Circuit now have an easier path to settlement, as it is less likely that varying state law will be an obstacle to satisfying predominance.

Background

In Re Hyundai arises out of an EPA investigation into Hyundai and Kia’s representations regarding the fuel efficiency of certain car models. After the EPA began its investigation, a number of plaintiffs filed a class action in California state court, seeking to represent a nationwide class of car purchasers who were allegedly misled by defendants’ fuel efficiency marketing.

Follow-on class action lawsuits were filed across the country and the MDL panel consolidated the cases in the Central District of California. Eventually, the parties informed the district court that they had reached a class settlement on a nationwide basis.

After winding through the approval process, the district court granted final approval of the nationwide class settlement, but did so over objections to the settlement. The objectors appealed, and a divided Ninth Circuit panel reversed, holding that by failing to analyze the variations in state law, the district court abused its discretion in certifying the settlement class. The Ninth Circuit voted to rehear the case en banc.

The Decision

The key issue on appeal was the extent to which a district court must address varying state laws when certifying a nationwide class for settlement purposes and, to what extent those varying laws impact the predominance analysis under Rule 23(b)(3). The predominance inquiry tests whether proposed classes are sufficiently cohesive and focuses on whether common questions present a significant aspect of the case that can be resolved for all members of the class in a single adjudication.

Quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997), the Ninth Circuit noted that the predominance inquiry is different depending on whether certification is for litigation or settlement purposes. “[I]n deciding whether to certify a settlement-only class,” the Ninth Circuit explained, ‘“a district court need not inquire whether the case, if tried, would present intractable management problems.’” Id. (citation omitted).

Against this backdrop, the Ninth Circuit rejected the objectors’ argument that the district court was required to address variations in state law. The Ninth Circuit began by explaining that “[s]ubject to constitutional limitations and the forum state’s choice-of-law rules, a court adjudicating a multistate class action is free to apply the substantive law of a single state to the entire class.” Id. at *9. Because no party argued that California’s’ choice-of-law rule should not apply or that differences in consumer protection laws precluded certification, the Ninth Circuit concluded that the district court was not required to address these issues.

In further support of this conclusion, the Ninth Circuit cited its decision Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). There, in rejecting the objectors’ argument that “the idiosyncratic differences between state consumer protection laws” defeated predominance, the Ninth Circuit reasoned that the claims revolved around a “common nucleus of facts” and applied the longstanding rule that “differing remedies” do not preclude class certification. Id. at 1022–23.

Based on this reasoning, the Ninth Circuit ultimately concluded that the district court did not abuse its discretion in finding that common issues predominated, notwithstanding varying state consumer protection laws.

Implications for Employers

In Re Hyundai highlights the potential challenges posed by nationwide classes given the Rule 23(b)(3) predominance requirement for certification, even in the context of a settlement class. By ruling that the district court is not required to analyze varying state laws when certifying a settlement class, the Ninth Circuit created an easier path to settlements involving nationwide classes. But employers should keep in mind this result was driven by, in part, the objectors’ failure to demonstrate that California law should not apply.  In other words, the issue of varying state laws is not wholly irrelevant to the predominance inquiry and employers should nevertheless be prepared to address such arguments if objectors adequately raise them.

An Oregon federal jury reached a verdict in a Telephone Consumer Protection Act (“TCPA”) class action in April that exposes the defendant to a potential judgment in excess of $2.7 billion.

The TCPA makes unlawful certain telecommunications including telemarketing calls without consent to cell phones and residential land lines using an artificial or prerecorded voice and telemarketing calls without consent to cell phones using an automatic dialing system, among others. It creates a private right of action in which plaintiffs may recover actual damages or $500 for each violation, whichever is greater. A court may enhance the damages amount up to three times for any violation it finds to be willful or knowing.

In Wakefield v. ViSalus, Inc., Plaintiff Lori Wakefield filed a class action complaint in the U.S. District Court for the District of Oregon (3:15-cv-1857-SI), alleging ViSalus, Inc. (“ViSalus”), a multilevel marketing company, engaged in unlawful telemarketing by promoting its products and services through telephone calls using an artificial or prerecorded voice. After a three day trial, the jury concluded that ViSalus made 1,850,440 calls in violation of the TCPA, for which Ms. Wakefield requests statutory damages of $500 per call plus an enhancement of at least 20 percent. Although ViSalus opposes Ms. Wakefield’s request on a number of grounds, including that it would violate due process, ViSalus now faces a possible judgment of more than $925 million in statutory damages, and more than $2.7 billion if trebled. The issue has not yet been decided.

ViSalus also filed a motion to decertify the class. In its motion, ViSalus argues class treatment is not appropriate for a number reasons. Among other arguments, ViSalus contends that Ms. Wakefield failed to present common evidence at trial that absent class members were called in common ways that are unlawful under the TCPA. ViSalus emphasizes that the jury was unable to determine whether the calls it concluded were improper were made to mobile phones or residential land lines. As a result, ViSalus argued, individualized inquiries would be needed to determine whether those absent class members were called on a mobile or land line and, if called on a land line whether the land line qualified as a “residential” phone line for purposes of the TCPA. As support, ViSalus pointed to individualized evidence Ms. Wakefield presented at trial to demonstrate that her land line qualified as “residential” phone line. ViSalus’ motion has not yet been decided, either.

While significant issues remain in the case, the jury’s verdict will no doubt embolden TCPA plaintiffs in settlement negotiations and encourage them to take similar cases to trial. It also reinforces the continued importance of TCPA compliance in light of the potential exposure the law creates.

Although Congress created the Consumer Financial Protection Bureau (“CFPB”) nearly a decade ago, constitutional challenges to its leadership structure remain ongoing.  Until recently, only the D.C. Circuit had ruled on the constitutionality of the CFPB structure at the appellate level in PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (en banc), and did so approvingly.  The D.C. Circuit rejected the notion that an agency headed by a single director who can only be removed for cause is unconstitutional.  Early this month, the Ninth Circuit concurred with the D.C. Circuit in CFPB v. Seila, LLC.

For background, the CFPB is led by a single director appointed by the President and confirmed by the Senate for a period of five years, unless extended.  The director may be removed from her position only for “inefficiency, neglect of duty, or malfeasance in office” – commonly known as a “for cause” restriction.  The Seila plaintiff argued that the CFPB Director exercises substantial law enforcement powers similar to the leaders of other Executive Branch departments, many of whom can be removed at the President’s will.  Therefore, according to the plaintiff, the CFPB structure violated the separate of powers doctrine.

The Ninth Circuit observed that the Supreme Court had previously upheld for-cause restrictions as a means to “maintain an attitude of independence” from the President’s control.  Under that reasoning, the Ninth Circuit held that, by having a for-cause restriction,  Congress sought to ensure that the agency discharged its quasi-legislative and quasi-judicial powers independently of the President’s will.

There is enhanced interest in this case stemming from Justice Brett Kavanaugh’s  appointment to the United States Supreme Court because he dissented in PHH, opining that the CPFB structure was “overwhelmingly” unconstitutional.  Justice Kavanaugh, however, may not have a chance to revisit this issue unless there is a circuit split, which is less likely after the Ninth Circuit’s ruling in Seila.  That said, the Second Circuit is set to rule on the agency’s constitutionality in CFPB et al. v. RD Legal Funding LLC et al. and the Fifth Circuit is set to do so in CFPB v. All American Check Cashing Inc. et al.  A finding that the CFPB’s structure is unconstitutional could upend a decade’s worth of CFPB’s actions and decisions, which is why legal observers continue to watch these cases as we will.

Seyfarth Synopsis: On May 30, 2019, the Fourth Circuit issued an opinion in Krakauer v. Dish Network, L.L.C., No. 18-1518 (4th Cir. May 30, 2019), that paved the way for TCPA plaintiffs to collect historic awards from unsuspecting defendants. The Fourth Circuit held that TCPA plaintiffs need not show any threshold level of injury to have standing, so long as they prove the statutory elements of a TCPA claim; the TCPA creates a simple cause of action that is “conducive to class-wide disposition” without reference to individualized inquiries; and Dish Network could be held responsible for the actions of its third-party marketer even if it repeatedly admonished the third party against violating the law and its contracts disclaimed any agency relationship.　 As a result, companies should be wary of using third parties to conduct telemarketing without appropriate oversight.

Case Background

Plaintiff Thomas Krakauer placed his number on the national Do-Not-Call registry. Nonetheless, he received multiple calls from a company called Satellite Systems Network (“SSN”) trying to sell him the services of defendant Dish Network, L.L.C. Krakauer sued Dish under the Telephone Consumer Protection Act (“TCPA”) on behalf of a class of persons whose numbers had been listed on the registry for at least 30 days and who had received two or more calls on behalf of Dish in the course of a year.

The district court certified the class in 2015. A year later, Dish moved to dismiss for lack of Article III standing, arguing that many or most class members did not experience an injury that would have risen to the level of a cause of action at common law. The district court denied the motion, and the case proceeded to trial.

The district court charged the jury with determining: (1) whether SSN was acting as Dish’s agent when it called consumers; (2) whether SSN made multiple calls to the class members’ numbers within the relevant period; and (3) the appropriate damages award for such calls. The jury returned a verdict for plaintiff on the first two points and assigned damages of $400 per call. The district court then determined, as a matter of law, that Dish acted willfully and knowingly, allowing an award of treble damages “to deter Dish from future violations and . . . give appropriate weight to the scope of the violations.” Krakauer, No. 18-1518 at *29.

Dish appealed the judgment.

The Fourth Circuit’s Opinion

In an opinion by Judge Wilkinson, the Fourth Circuit considered three issues: (1) whether the class as certified had Article III standing to bring claims; (2) whether the district court correctly applied the factors for class certification, especially commonality and predominance, and whether the class was overbroad; and (3) whether Dish was responsible for SSN’s calls, including whether it had acted willfully and knowingly in not remedying SSN’s alleged misconduct. Id. at *10.

Dish argued that many, if not most, class members lacked standing because their injury did not rise to “a level that would support a common law cause of action.” Id. at *13. The Fourth Circuit rejected this argument, relying on the Supreme Court’s guidance in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Spokeo held that traditional standing requirements, including a concrete and particular injury, applied to statutory causes of action, and that Congress could not create a cause of action without an underlying injury that would have been cognizable under the common law. The Fourth Circuit found that receipt of repeated, unwanted telephone marketing by someone who had taken steps to avoid such marketing was a type of injury cognizable at common law – an intrusion on privacy. Id. at *13-14 (citing Spokeo, 136 S.Ct. at 1549).

Next the Fourth Circuit addressed the district court’s certification of a class under Rule 23(b)(3), finding that the simple scheme created by Congress avoided the kinds of individualized determinations that “so often plague class actions.” Id. at *16-18. Dish argued that many class members did not have a claim because they were not “subscribers” to telephone service, and only a “subscriber” could place a number on the Do-Not-Call registry. But the Fourth Circuit rejected this argument, noting that the plain text of the statute allowed a private right of action by any “person” who received unwanted calls, not just subscribers, and a non-subscriber living in the house where the call was received could suffer the same privacy intrusion as the subscriber. Id. at *19.

The Fourth Circuit also determined that the class was properly ascertainable because the data on potential class members was found in the call data of the defendant companies and the Do-Not-Call registries. Id. at 22-23.

Left unspoken in the Fourth Circuit’s analysis, however, was how to determine who received the phone call at a given number and thus who experienced the injury. Although the SSN/Dish call data revealed numbers called, it did not necessarily reveal the identity of the persons who received unwanted calls. The Fourth Circuit gave the example of a subscriber wife whose husband received a call and noted that the husband could experience an injury to his right to privacy. Id. at 21. But the Fourth Circuit did not explain how it possibly could identify the husband from the company records and, as a result, how it could provide compensation to the real injured party (the recipient) without an individualized investigation.

This slippage between subscribers and call recipients also muddies the standing inquiry. The Fourth Circuit justifies reading a phone call as an intrusion on privacy because the recipient “took steps to avoid” such calls by placing his number on the Do-Not-Call registry. Id. at 12. But if the recipient is not the subscriber, did he actually take such steps?

Finally, the Fourth Circuit addressed whether Dish could be held liable for SSN’s unwanted calls, a question that turned on whether SSN was acting as Dish’s agent when it made the calls. Dish argued that it was not, pointing to contracts that characterized the relationship as independent and not an agency relationship. Id. at * 27-28. But the Fourth Circuit held that a party’s contractual characterization of the relationship is irrelevant; it is the nature of the relationship that matters. The Fourth Circuit held that it was it was reasonable for the jury to conclude that SSN was Dish’s agent because their contract “afford[ed] Dish broad authority over SSN’s business, including what technology it used and what records it retained” and because Dish claimed to have the right to monitor SSN to ensure compliance with the TCPA. Id. at *27. The Fourth Circuit also held that Dish had knowledge of SSN’s violations of the TCPA, and its failure to act to stop such violations was evidence that SSN was acting within the scope of its authority. Id.

Although Dish argued that it had repeatedly instructed SSN to follow the law in acting on Dish’s behalf, the Fourth Circuit held that these verbal instructions were outweighed by Dish’s “failure to respond to” statutory violations “in any serious way” while it was “profiting handsomely from SSN’s sales tactics. Id. at *28-29.

The Fourth Circuit also approved the district court’s finding that Dish had acted willfully and knowingly. The Fourth Circuit relied heavily on the fact that Dish had notice of alleged violations via “lawsuits and enforcement actions” as well as “consumer complaints” but “did nothing to monitor, much less enforce, SSN’s compliance with the telemarketing laws.” Id. at *31.

Implications

The Fourth Circuit provided ample reason for companies to be cautious in drafting contracts with third-party marketers and overseeing their activities. The Fourth Circuit confirmed that a company can be held liable for the behavior of a contractor making calls on its behalf, even if it “includes certain language in a contract or issues the occasional perfunctory warning.” Id. at *32. A court will “look past the formalities and examine the actual control exercised.” Id. Indeed, contractual language requiring one party to comply with the law and giving the other party the right to monitor compliance may even be viewed as a sign of “control” and agency. Id. at 27. And, if a company has the right to control and to monitor compliance, the failure to do so may be viewed as a willful decision to ignore potential violations of the law. Thus, companies should carefully consider the structure of their contractual relationships.

The Fourth Circuit also relaxed the standard for certification of such claims by suggesting that Congress has a great deal of latitude to intentionally structure consumer protection statutes to be class-friendly and to avoid individualized inquiries. Id. at *18. In the Fourth Circuit’s view, so long as the statutory violation causes some concrete and particular injury, even if it would be viewed as minor or de minimis under the common law, Congress may impose statutory damages for it, and those damages need not be tightly targeted to the magnitude of the injury. As the Fourth Circuit’s seeming conflation of subscribers and call recipients shows, in the case of privacy interests, a strong nexus between the claim and a class member’s own efforts to protect his privacy also may not be necessary. Thus, companies subject to consumer protection statutes like the TCPA should take less comfort in arguments regarding standing or the need for individualized consideration of class members’ injuries.

From Seyfarth’s Workplace Class Action Blog

Seyfarth Synopsis: Defendants can remove lawsuits filed in state courts to federal courts if they meet the statutory requirements for removal under either 28 U.S.C. § 1441(a) or the Class Action Fairness Act. In Home Depot U. S. A., Inc. v. Jackson, No. 17-1471, 2019 WL 2257158, at *2 (U.S. May 28, 2019), the U.S. Supreme Court ruled that Home Depot was not entitled to removal under either provision because it was brought into the lawsuit by a counterclaim filed by the original defendant. According to the Supreme Court, the term “defendant” in the removal statutes refers only to the party sued by the original plaintiff.

Although counterclaim class actions are not the norm, this decision nonetheless restricts removal strategies for certain companies facing class actions in unfavorable state jurisdictions. Companies with multiple business segments, or in the franchise and staffing industries, or companies that regularly initiate lawsuits are more likely to be named as third-party defendants, and inevitably impacted by this decision.

Background

In 2016, Citibank N.A. filed a debt-collection action in North Carolina state court against George W. Jackson, for charges incurred on a Home Depot credit card. In responding to Citibank’s complaint, Jackson asserted a counterclaim against Citibank and third-party class-action claims against Home Depot and Carolina Water Systems (“CWS”).

In these third-party claims, Jackson alleged that Home Depot and CWS had engaged in unfair and deceptive trade practices with respect to the sale of water treatment systems. Citibank subsequently dismissed its claims against Jackson and one month later, Home Depot filed a notice of removal to federal court, citing federal jurisdiction under the Class Action Fairness Act (“CAFA”).

Jackson moved to remand the case to state court and amended his third-party complaint to remove any reference to Citibank. The district court granted Jackson’s motion to remand because Home Depot was not a “defendant” eligible to remove under the CAFA. The U.S. Court of Appeals for the Fourth Circuit affirmed, finding that allowing Home Depot to remove would be inconsistent with its prior interpretations of the CAFA’s removal statute.

Subsequently, the U.S. Supreme Court granted Home Depot’s writ of certiorari.

The Supreme Court Decision

Justice Thomas wrote the majority opinion for the Supreme court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. On review, the Supreme Court concluded that the term “defendant’ used in 28 U.S.C. § 1441(a) and the CAFA does not include a third-party counterclaim defendant, such as Home Depot. First, the Supreme Court explained that while Home Depot was a defendant to a claim (i.e., Jackson’s counterclaim), the removal statute refers to ‘“civil action[s],’ not ‘claims.’” Id. at 6. Hence, under “Section 1441(a),” the Supreme Court reasoned, “a counterclaim is irrelevant to whether the district court has ‘original jurisdiction over the civil action.’” Id. The Supreme Court opined that its conclusion was bolstered by language in other removal statutes that either differentiated between a defendant and a third-party defendant, or expressly extended the reach of the statute to include parties other than the original defendant. Id. at 7.

The Supreme Court similarly concluded that “any defendant,” as used in the CAFA was not intended to expand the class of parties who can remove under Section 1441(a). Id. at 9. Instead, the CAFA merely limits certain restrictions on removal that might otherwise apply. In other words, the Supreme Court held that nothing in the CAFA alters Section 1441(a)’s limitations on who can remove.

Based on this reasoning, the Supreme Court ultimately ruled that neither § 1441(a) nor the CAFA permits removal by a third-party counterclaim defendant.

Implications for Employers

Removal should be in the arsenal for any company facing a class action in an unfavorable state jurisdiction. While the Supreme Court’s decision in Jackson undoubtedly restricts this strategy, it does so only in the narrow circumstances where the company faces a counterclaim as a third-party defendant. Fortunately, counterclaim class actions do not come up that often. In the class action context, the decision is likely to have the most impact on companies that regularly bring suits against individuals that may, in turn, result in a class action counterclaim. Hence, companies with multiple divisions or in the franchise and staffing industries face a potential situation in which a related company could initiate a lawsuit, thus giving rise to a third-party counterclaim.

Recently, the Supreme Court of the United States granted certiorari in the matter of Rotkiske v. Klemm. At issue is whether the discovery rule tolls the statute of limitations under the Fair Debt Collections Practices Act (FDCPA). The controversy is centered on the FDCPA statutory text, “the date on which the violation occurs,” 15 U.S.C. § 1692k(d), and whether such language governs in a dispute or the discovery rule tolls the statute of limitations. The discovery rule holds that the statute of limitations begins when the plaintiff knew or should have known of the facts giving rise to his legal claim. In granting certiorari, the Supreme Court weighs in on a split between the Third Circuit and the Fourth and Ninth Circuits.

Background

The plaintiff-petitioner’s claim arises from a debt collection action that dates back to 2008. The defendant, a third-party debt collector, initially filed suit but failed to properly serve the plaintiff because the defendant attempted service at an address where the plaintiff no longer resided. The defendant later withdrew the suit and refiled in 2009. Unbeknownst to the plaintiff, however, someone who resided at his former address accepted service of the second complaint filed in 2009. After failing to appear to defend himself, the debt collector later obtained a default judgment against the plaintiff. A lien was placed on the plaintiff’s credit report. Years later, upon discovering the lien, the plaintiff sued in the Eastern District of Pennsylvania, alleging that the default judgment was obtained in violation of the FDCPA. The defendant filed a motion to dismiss. In his response, the plaintiff argued that the discovery rule should have tolled the statute of limitations, or, alternatively, that the court should equitably toll the limitations period. The district court eventually dismissed the suit finding that the statutory language controlled, i.e., the limitations period starts “from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). On appeal, the plaintiff challenged only the district court’s holding on the discovery rule issue. After a panel hearing but before issuing an opinion, the Third Circuit ordered an en banc hearing.

A Circuit Split: Third Circuit v. Fourth and Ninth Circuits

The Third Circuit’s en banc opinion affirmed the district court’s holding that the FDCPA’s statutory plain language controlled. Judge Hardiman, writing for the court, relied on TRW Inc. v. Andrews, where the Supreme Court explained that courts must begin statutory analyses by analyzing the text itself and then consider context and structure. See 534 U.S. 19, 28 (2001). Judge Hardiman further noted that the Court in TRW recognized that Congress may “implicitly” exclude a broader discovery rule by “explicitly” including a narrower one. 534 U.S. at 28. Stated differently, the narrow plain language Congress included in the FDCPA (“the date on which the violation occurs”) controlled because it clearly foreclosed the possibility of a broader general discovery rule applying. Additionally, the court observed that the practices forbidden under the FDCPA are apparent when they occur and thus do not support the application of the discovery rule. The Third Circuit left open the possibility that equitable tolling may be appropriate under the FDCPA when there is fraudulent, misleading, or self-concealing conduct. The court, however, did not explore this issue because it was not raised on appeal.

In its Supreme Court petition, the Rotkiske plaintiff points to two cases from the Fourth[1] and Ninth[2] Circuits that contravene the Third Circuit’s reasoning. First, in Mangum, the Ninth Circuit panel held that the discovery rule applied in an FDCPA action. In reaching its conclusion, the Ninth Circuit relied on internal circuit precedent concerning the application of the discovery rule to violations of the Fair Credit Reporting Act (FCRA). That precedent was overturned by the Supreme Court in TRW v. Andrews.[3] The Ninth Circuit explained that, while the Supreme Court’s guidance in TRW did cast doubt on the Ninth Circuit’s earlier decision, the Supreme Court’s rationale did not apply in Mangum, which involved the FDCPA, an entirely different statute from the one at issue in TRW. Furthermore, the Ninth Circuit noted that it could not reject preexisting Ninth Circuit law.[4]

Second, in Lembach, the Fourth Circuit issued a non-binding per curiam opinion that also cited the Ninth Circuit’s Mangum decision. The Fourth Circuit likewise held that the general discovery rule applied in an FDCPA action. In so doing, the Fourth Circuit premised its approach on dicta from TRW – that “lower federal courts generally apply a discovery accrual rule when a statute is silent on the issue.” 534 U.S. at 27 (internal citation omitted). However, the Fourth Circuit stressed the factual circumstances that precluded plaintiffs from acting until they discovered the counterfeit signatures that had enabled debt collectors to foreclose on their home. Because Lembach involved fraud and concealment, the decision rests on a somewhat different footing from those involving a “general” discovery rule. See TRW, 534 U.S. at 27 (citing Holmberg v. Armbrecht, 327 U.S. 392 (1946) and allowing for equitable tolling as to fraud and concealment). Thus, it is not clear whether the Fourth Circuit would apply the discovery rule in an FDCPA case lacking fraud and concealment.

Takeaway

It remains to be seen whether the Supreme Court will adhere to the approach announced in TRW and uphold the Third Circuit’s conclusion. If the Supreme Court deviates from its earlier precedent, the consequences for third-party debt collectors could be far reaching. If the discovery rule applies, third-party debt collectors could see liability arise well beyond the apparent one-year statutory limit because, unlike the FCRA, the FDCPA does not include a statute of repose.

Seyfarth Shaw will continue to monitor developments in this matter.

[1] Lembach v. Bierman, 528 F. App’x 297 (4th Cir. 2013).

[2] Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009).

[3] In a separate dispute centered on the discovery rule applying to FCRA violations, the Supreme Court reversed the Ninth Circuit holding that the discovery rule applied to issues involving the FCRA. The Supreme Court explained that the FCRA was not an area of law that “cries out for application” of the discovery rule and explained that the embedded statute of limitations within the statute precluded application of the discovery rule. See 534 U.S. at 28.

[4] Although the Rotkiske plaintiff does not rely on this case, the Eighth Circuit has also found that “[t]he Supreme Court did not in TRW invalidate the presumption of reading the discovery accrual rule into federal statutes.” Maverick Transp., LLC v. U.S. Dep’t of Labor, Admin. Review Bd., 739 F.3d 1149, 1154 (8th Cir. 2014).

Seyfarth Synopsis:  Although the Illinois Supreme Court’s recent decision in Rosenbach v. Six Flags may have upped the ante for employers facing litigation under the Illinois Biometric Information Privacy Act (“BIPA”), a recent bill introduced in the Illinois Senate, SB2134, would remove plaintiffs’ right to bring private causes of action under Illinois Biometric Information Privacy Act (“BIPA”) and instead allow them to file a complaint with the Illinois Department of Labor (“IDOL”), and to be enforced by the DOL and the Illinois Attorney General.

If this proposed bill ultimately becomes signed legislation, it would be the death knell for private party BIPA class actions. As ten or more BIPA class actions are being filed in Illinois state and federal courts on a daily basis,  employers should closely follow developments involving this proposed legislation while concurrently pursuing BIPA compliance activities.

Continue Reading Newly Proposed Legislation to Restrict Biometric Privacy Class Actions in Illinois

Seyfarth Synopsis: In a 9-0 Supreme Court ruling last week, the Court spoke to issues concerning the Fair Debt Collection Practices Act (FDCPA) and non-judicial foreclosures.

The FDCPA is intended to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692, Congressional Findings and Declarations of Purpose.

In Obduskey v. McCarthy & Holthus LLP, No. 17-1307, 2019 WL 1264579 (U.S. Mar. 20, 2019), the Supreme Court held that a business, such as a law firm, that is principally engaged in the enforcement of a security interest, like non-judicial foreclosure proceedings, is not a “debt collector” under the primary definition of the FDCPA. Rather, the Court held that the law firm at issue came under the ambit of the limited-purpose definition. Entities that meet the primary definition of a debt collector under the FDCPA are subject to a myriad of limitations aimed at protecting consumers.

In reaching its decision, Justice Breyer engaged in a three step statutory analysis of the FDCPA. First, to avoid surplusage, the limited-purpose definition must be read to constrict the primary definition. Next, the Court reasoned that Congress may have chosen to “treat security-interest enforcement differently from ordinary debt collection in order to avoid conflicts with state non-judicial foreclosure schemes.” Finally, the Court held that upon review of the legislative history of the FDCPA, it appears that the limited-purpose definition was a compromise between full inclusion of security interest enforcement and exclusion of the same.

The Court concluded that “in our view, the last sentence does (with its § 1692f(6) exception) place those whose ‘principal purpose … is the enforcement of security interests’ outside the scope of the primary ‘debt collector’ definition, where the business is engaged in no more than the kind of security-interest enforcement at issue here—non-judicial foreclosure proceedings.” By excepting those who principally enforce security interests from the full scope of the FDCPA, the Court also “exclude[d] the legal means required to do so,” including sending pre-foreclosure notices.

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth Shaw’s Commercial Class Action Defense or Consumer Financial Services Litigation Teams.

Seyfarth Synopsis:  On March 20, 2019, in Frank, et al. v. Gaos, No. 17-961, 2019 WL 1264582 (U.S. Mar. 20, 2019), the U.S. Supreme Court held that the Article III standing preconditions to federal court litigation, as described in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), will not be undermined. The ruling is important for any corporate counsel involved in defending class actions and in negotiating the resolution of such litigation.

We previously blogged on the supplemental briefing development before the Supreme Court in  Frank v. Gaos, No. 17-961,  and now we can report on the Supreme Court’s decision.  Commentators had expressed the view that the case would provide the Supreme Court with an opportunity to determine whether cy pres provisions in settlement are appropriate. The Supreme Court’s ruling did not go that far.

The Supreme Court’s Decision

In Frank v. Gaos, the Supreme Court has affirmed Spokeo by remanding the case to the U.S. Court of Appeals for the Ninth Circuit without considering whether a class settlement that provides cy pres payments but no money to absent class members is “fair, reasonable, and adequate” under Rule 23(e)(2).  The Supreme Court made its remand ruling in an unusual per curiam decision.  The Supreme Court reiterated, again, that a federal statutory violation alone does not equate to Article III standing.  It remanded because of “a wide variety of legal and factual issues not addressed in the merits briefing before us or at oral argument.” Id. at *3.  The Supreme Court opined that Article III standing turns on “whether any named plaintiff has alleged [statutory] violations that are sufficiently concrete and particularized to support standing.”  Id.

The stakes on remand are high, of course — a lack of standing means no day at all in federal court.

The Implications of the Supreme Court’s Decision

There are a number of lessons to be learned from the Frank v. Gaos decision:

  • Litigants should expect federal district courts to conduct an exacting analysis of Article III standing where the allegations in a complaint do not obviously allege concrete monetary damages. Since the existence, or not, of concrete injury may raise “a wide variety of legal and factual issues,” litigants should expect federal district courts to conduct early evidentiary hearings where the complaint allegations appear to raise only technical statutory violations.
  • Litigants also should expect more lawsuits to be commenced in state court if federal court Article III standing appears weak. Many states do not have constitutions with the same Article III standing precondition to litigation that appears in the U.S. Constitution.  Where a claim arises under only federal law, such as breach of fiduciary duty litigation under 29 U.S.C. § 1132(a)(3), defendants should pay much more attention to Spokeo.
  • Federal agency officials may be under more pressure to vindicate federal statutory rights where Spokeo issues appear in the complaints.
  • Lastly, the Supreme Court’s ruling sends a signal to the lower federal courts that Spokeo provides a very real way for the courts to opt out of federal court litigation. Declining jurisdiction may be preferable to messy litigation that often, these days, present strong partisan political controversies with no easy resolution.

It thus makes eminent sense for litigants to consider, again, what Spokeo held — a plaintiff seeking to invoke federal jurisdiction must show:  (1) an injury in fact (2) caused by the defendant’s conduct that is (3) redressable by a favorable federal court decision.

The Federal Rules of Appellate Procedure are generally liberal and allow the appellate courts a great deal of discretion: for example, FRAP 2 allows a Court of Appeals to “suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).” As the Supreme Court emphasized on Tuesday in Nutraceutical Corp. v. Lambert, that final caveat is important.

Troy Lambert sued Nutraceutical, a dietary supplement company, for failing to properly label products. He sued on behalf of a class of similarly situated consumers, and the federal district court initially certified a class. However, Nutraceutical successfully moved to decertify after discovery. Ten days later, during a status conference, Lambert informed the court that he intended to move for reconsideration. The court ordered him to submit the motion by ten days after the conference, which he did. The court denied his motion, at which point Lambert petitioned the Ninth Circuit for permission to file an interlocutory appeal of both the decertification order and the denial of reconsideration.

Nutraceutical objected that Lambert’s petition was outside the permissible time to file a petition. At the time, FRCP 23(f) allowed the appellate court to “permit an appeal” of an order denying class cert “if a petition for permission to appeal is filed . . . within 14 days after the order is entered.” (The language has since changed slightly, but the substance of the rule is the same.) Lambert’s petition was not filed until several months after the decertification order was entered. Nonetheless, the Ninth Circuit held that it could grant Lambert’s petition because, first, the FRCP time limit was non-jurisdictional, and second, Lambert was entitled to equitable tolling of the time because he had been diligent in seeking relief, first from the district court and then from the appellate court.

Nutraceutical appealed the timeliness issue, and the Supreme Court reversed. Justice Sotomayor, writing for a unanimous court, agreed with the Ninth Circuit that the rule was not jurisdictional. But, the Court said, the time to file is mandatory and cannot be tolled. The distinction between mandatory and non-mandatory deadlines, the Court noted, depends on the “text of the rule.” Even a “deadline . . . phrased in an unqualified manner” may be susceptible to equitable tolling if the text does not clearly preclude tolling.

In this case, though, the Court found that “the Federal Rules of Appellate Procedure single out Civil Rule 23(f) for inflexible treatment.” Lambert pointed to FRAP 2 to argue for the appellate court’s equitable power to alter the rules. But the Court found that the carve-out at the end of the rule (“except as otherwise provided in Rule 26(b)”) trumped the general grant of discretion to the appellate courts. FRAP 26(b) explicitly states that “the court may not extend the time to file . . . a petition for permission to appeal.” The Court held that the rules expressed “a clear intent to compel rigorous enforcement of Rule 23(f)’s deadline, even where good cause for equitable tolling might otherwise exist.”

Does that spell the end of the road for Lambert or other litigants who pursue a timely motion for reconsideration but fail to timely appeal a Rule 23 order? No, it does not for two reasons.

First, if the party moves for reconsideration (at least within 14 days of the original order), that motion does not toll the time to petition for an appeal, but it can make “an otherwise final decision of a district court not final,” which “affects the antecedent issue of when the 14-day limit begins to run.” The Court also left open the possibility, to be considered by the circuit court on remand, that a timely motion for reconsideration could have the same effect even if not filed within the 14-day window.

Second, Lambert argued, and the Court remanded for the lower court to consider, that the denial of reconsideration was also “an order granting or denying class-action certification,” with its own 14-day window for a petition for permission to appeal.

Where does that leave litigants? On the one hand, the Court’s unanimous ruling draws a clear line in the sand: there is simply no equitable tolling available when it comes to seeking permission to appeal. Thus, in theory, litigants ought to proceed straight to seeking an appeal of an unfavorable ruling without waiting to see if a better result can be obtained on reconsideration (or, at the very least, ought to pursue them in tandem). On the other hand, the opinion creates some uncertainty as to whether a litigant like Lambert can use reconsideration to get around the deadline to seek appeal, lack of tolling notwithstanding.