Litigation and Court Decisions

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On July 6, the U.S. Supreme Court ruled in Barr v. American Association of Political Consultants that the Telephone Consumer Protection Act’s exception from its automated call restriction for calls to collect government debts violates the First Amendment of the U.S. Constitution.  The Court also decided that the proper remedy for the constitutional violation is…

In an opinion authored by Chief Justice Roberts (the “DACA Opinion”), the Supreme Court has concluded that the rescission of the DACA program by the U.S. Department of Homeland Security (DHS) was arbitrary and capricious and hence in violation of the Administrative Procedure Act (APA). Several clients have asked whether the decision…

The issue of whether a consumer can unilaterally revoke consent to receive automated remains a significant concern for industry.  We look at how the FCC and courts have approached the issue and discuss recent significant decisions from federal appeals courts holding that the TCPA does not allow a consumer to unilaterally revoke consent when it…

Earlier this week, in Bostock v. Clayton County, Georgia, the U.S. Supreme Court ruled that firing an employee for being homosexual or transgender constitutes discrimination based on the employee’s sex in violation of Title VII of the Civil Rights Act.  The decision is likely to be relied on by regulators and private plaintiffs alleging…

On June 15, 2020, the U.S. Supreme Court granted certiorari in Henry Schein, Inc. v. Archer and White Sales, Inc. to decide a question that has divided the federal circuit courts and state supreme courts: “whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an other­wise clear and unmistakable delegation…

In a recent decision, Johnson v. Enhanced Recovery Company, LLC, the U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s grant of summary judgment in favor of a debt collector based on the plaintiff’s failure to present any evidence beyond her own “speculation” that a debt collection letter was misleading in…

The U.S. Court of Appeals for the Ninth Circuit has joined the Seventh and Eleventh Circuits in ruling that the “prior express consent” required by the Telephone Consumer Protection Act (TCPA) for autodialed calls to cellular phones must come from the current subscriber and not the intended recipient of the call.

In N.L. v Credit …

The Texas federal district court hearing the lawsuit filed by two trade groups challenging the CFPB’s final payday/auto title/high-rate installment loan rule (Payday Rule) entered an order yesterday that once again continues the stay of the lawsuit and the August 19, 2019 compliance date for both the Payday Rule’s ability-to-repay (ATR) provisions and its payment…

PayPal has filed a motion for summary judgment in its lawsuit against the CFPB seeking to invalidate the Bureau’s prepaid card rule (“Rule”).  The Rule became effective on April 1, 2019.  The relief sought by PayPal in the lawsuit, which was filed in December 2019 in the D.C. federal district court, includes vacating the…

Briefing is now complete on the petitions for certiorari in the Blair v. Rent-A-Center appeals that could produce the next blockbuster U.S. Supreme Court arbitration decision. At issue is whether the Federal Arbitration Act (FAA) preempts California’s McGill Rule. Under the McGill Rule, an arbitration agreement that precludes a consumer from pursuing claims for “public”…