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03.11.2022 |
By
Joshua C. Dickinson, Kyle Klucas
Brief Executive Summary
In Woods v. LVNV Funding, the Seventh Circuit Court of Appeals clarified two standards for FDCPA claims in identity theft cases. First, the court somewhat lowered the required showing to prove that a debt is a “consumer debt” at the summary judgment phase, noting that the FDCPA does not “require absolute certainty on this point.” Second, the court heightened the standard that debtors must meet in alleging false or misleading statements in identity theft cases, explaining that “literal falsity is not the standard under” the FDCPA, and, where a report is based on an identity mismatch that a debtor can easily determine is not his own, there is no liability.
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02.18.2022 |
By
Drew O'Malley, Jamie N. Cotter
The U.S. Court of Appeals for the Fifth Circuit recently issued an opinion vacating an over $4.3 million fee award to class counsel. Fessler v. Porcelana Corona De Mexico, S.A. DE C.V., 23 F.4th 408 (5th Cir. 2022). The opinion provides defendants with additional support to limit fee awards in class cases where plaintiffs obtain substantially less relief than initially sought.
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11.10.2021 |
By
Nicole Karam, Jamie N. Cotter
In connection with large public works projects, negotiating voluntary acquisitions with each landowner is generally the most efficient and preferable method to secure the property rights necessary to complete the project. However, although most property interests are acquired voluntarily, initiating condemnation proceedings against select landowners is oftentimes necessary to ensure the timely completion of many public utility projects. To that end, below are some top tips for handling large acquisition projects so as to minimize the need for condemnation:
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06.30.2021 |
By
Jacob Hollars, Jamie N. Cotter
As part of the flurry of its end-of-term opinions, the U.S. Supreme Court recently issued its opinion in TransUnion LLC v. Ramirez, 594 U.S. ____ (2021) confirming that plaintiffs who have suffered no concrete harm have no standing to sue in federal court under Article III of the U.S. Constitution. As Justice Kavanaugh succinctly put it in writing for the five justice majority, “No concrete harm, no standing.”
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06.02.2021 |
For any attorney, whether new or seasoned, this can be a terrifying possibility. Privilege waivers can happen at any time and can have devastating consequences for your client’s case. This possibility is made even more precarious when one considers that jurisdictions have varying guidelines when it comes to what constitutes a waiver.
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04.22.2021 |
The Eleventh Circuit in Hunstein v. Preferred Collection and Management Services, Inc. issued an opinion yesterday that confronted an issue of first impression, namely, whether a debt collector can use a third party vendor to send collection letters without violating the Fair Debt Collection Practices Act (“FDCPA”). The facts were simple. The defendant/debt collector used a third party letter vendor to send an initial “dunning” letter to the plaintiff/consumer. In doing so, the defendant provided the vendor with the plaintiff’s name, his outstanding balance, the fact that his debt resulted from his son’s medical treatment, and his son’s name. The plaintiff filed a lawsuit alleging that the defendant violated the FDCPA by disclosing his personal information to the third-party vendor.
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04.02.2021 |
By
Jamie N. Cotter, Kersten Holzhueter
In the recent Third Circuit opinion rendered in Moyer v. Patenaude & Felix, A.P.C., the plaintiff brought a putative class action alleging that Patenaude & Felix violated the Fair Debt Collection Practices Act (“FDCPA”) by sending her a single collection letter. The letter advised the plaintiff that her debt had been assigned to the firm and stated: “If you wish to eliminate further collection action, please contact us at 800-832-7675 ext. 8500.” The letter then went on to advise the plaintiff of her validation rights under §1692g. Resolution of the alleged class action claims required the Third Circuit to decide whether the inclusion of the single sentence inviting a call would confuse the least sophisticated consumer.
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04.01.2021 |
The Minnesota Supreme Court recently ruled that a large home improvement retailer cannot claim a sales tax offset based on uncollectible debts from purchases made on its private label credit card, in the case Menard, Inc. v. Commissioner of Revenue, case number A20-0241. The home improvement retailer, attempted to offset its sales tax liability pursuant to Minnesota Statues § 297A.81, subd. 1 that allows a taxpayer to offset against its current sales tax liability taxes “previously paid as a result of any transaction the consideration for which became a debt owed to the taxpayer that became uncollectible during the reporting period.”
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03.15.2021 |
The Consumer Financial Protection Bureau (CFPB) recently considered eliminating strict liability for one category of claims under the Fair Debt Collection Practices Act (FDCPA): claims asserting that a debt collector brought or threatened to bring legal action to collect a time-barred debt. The proposed revision to Regulation F would have required consumers to show that a debt collector knew or should have known the debt was outside the statute of limitations. Advocates for the change argued that strict liability was inappropriate because a debt collector can reach the wrong conclusion about a state’s application of the statute of limitations even after a thorough investigation and a consumer can raise the issue as an affirmative defense if he/she disagrees with the collector’s conclusion. Debt Collection Practices (Regulation F), 86 FR 5766-01 (Jan. 19, 2021).
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03.08.2021 |
By
Jamie N. Cotter, Kersten Holzhueter
The Fair Debt Collection Practices Act (“FDCPA”) was enacted in 1977 to eliminate abusive debt collection practices. 15 U.S.C. § 1692(e). To further that goal, section 1692e of the FDCPA prohibits a debt collector from using false, deceptive, and misleading representations; section 1692f prohibits a debt collector from using unfair or unconscionable means; and, section 1692g requires a debt collector to provide certain information (the amount of the debt, name of creditor, and explanation of right to dispute a debt) to a consumer.
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02.16.2021 |
Condemning Property When in the Process Of Obtaining Development Approvals
Typically, special districts in Colorado are required by local municipalities to construct various improvements in order to move forward to develop property. These requirements can be imposed before, during, and after certain development approvals are obtained. Special districts can find themselves in between a proverbial rock and a hard place when seeking to move forward with condemnation to construct improvements before having formal approval to move forward with the larger development.
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02.03.2021 |
Attorneys can be Held Responsible for Opposing Legal Fees if Discovery Rules are Neglected
This may be a question that has never crossed your mind. If so, then good for you. It means you’ve likely never been faced with sanctions. However, just because you haven’t, doesn’t mean you shouldn’t be aware of the possibility.
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12.21.2020 |
By
Jamie N. Cotter, Jacob Hollars
Setting up the potential for the U.S. Supreme Court to confirm and strengthen its 2016 opinion in Spokeo v. Robins, the United States Court of Appeals for the Seventh Circuit issued a raft of five rulings this week that clarify Article III standing issues related to claims under the Fair Debt Collection Practices Act (FDCPA). Through these five opinions, the Seventh Circuit has unequivocally aligned itself with the Eleventh and D.C. Circuits in requiring a plaintiff to plead and provide “competent proof” of a concrete injury in fact to establish Article III standing. What follows is a brief analysis of each opinion as it relates to a plaintiff’s burden to survive a motion to dismiss for lack of standing.
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12.11.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In In re Thurmon, the Bankruptcy Court for the Western District of Missouri (Judge Norton) held that debtors who had ceased operation of their business and sold its assets pre-petition were not “engaged in commercial or business activities,” and therefore could not proceed under new subchapter V of chapter 11. Despite its order, the Court nonetheless signaled its willingness to confirm the debtors’ subchapter V plan with a modification, although the debtor had never sought approval of or distributed a disclosure statement as required for non-subchapter V chapter 11 debtors.
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12.11.2020 |
Originally published Dec. 9, 2020, on Law360.
With the COVID-19 pandemic depriving bankruptcy practitioners of our usual opportunities to meet in court and at conferences to discuss recent developments in the law, I spent time tracking developments in bankruptcy law within the U.S. Court of Appeals for the Eighth Circuit.
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11.16.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In Lund-Ross Constructors, Inc. v. Buchanan (In re Buchanan), the Bankruptcy Court for the District of Nebraska (Judge Saladino) denied an objection to discharge on the basis that tort claims against a non-debtor business were not enforceable against the husband-and-wife chapter 7 debtors who owned the business. The opinion warrants careful consideration by counsel representing property owners and general contractors in Nebraska, because it suggests Nebraska law limits the liability of corporate principals, even when they participate actively in allegedly actionable misrepresentations.
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10.09.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In Veroblue Farms USA, Inc. v. Cassels Brock & Blackwell, LLP (In re Veroblue Farms USA, Inc.), the Bankruptcy Court for the Northern District of Iowa (Judge Collins) held the Court could properly exercise personal jurisdiction over a Canadian law firm in an adversary complaint for turnover. The law firm argued exercise of jurisdiction was improper because it had no pertinent contacts with Iowa; rather, the firm had represented a Canadian company from the firm’s offices in Canada. The firm further argued that it did not give legal advice in Iowa or related to Iowa law.
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09.23.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In State of North Dakota ex rel. Stenehjem v. Bala (In re Racing Services, Inc.) the Eighth Circuit BAP (Judges Dow, Nail and Shodeen) concluded the North Dakota Attorney General lacked standing to file a chapter 7 proof of claim on behalf of eligible nonprofit organizations, but that its tardy filing of a proof of an assigned claim was not barred by laches or subject to disallowance under section 502(b)(1).
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09.16.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In Kelley v. Boosalis (In re Petters Company, Inc.) and Kelley v. Kanios (In re Petters Company, Inc.),[1] the Eighth Circuit (Judges Loken and Benton, with Judge Kelly dissenting in part and concurring in part) held that federal law, not state law, determines whether pre-judgment interest may be awarded on judgments for the value of transfers avoided under section 544(b). In so doing, the Court split with the Ninth Circuit and the First Circuit BAP. The Court also interpreted the application of Minnesota’s Uniform Fraudulent Transfer Act (“MUFTA”) in the context of a Ponzi scheme.
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07.27.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In Slawson Exploration Co., Inc. v. Nine Point Energy, LLC (In re Triangle USA Petroleum Corp.), the Eighth Circuit (Judges Shepherd, Smith, Melloy) held that under North Dakota law, an O&G promote obligation does not run with the land, was not an equitable servitude, and was not a real property interest akin to an overriding royalty. Slawson and the Debtor’s predecessor, TPC, were O&G production companies who teamed up to lease, develop and drill land in North Dakota. Under the terms of their agreement (the “EDA”), either party that acquired an O&G leasehold in a specified area of North Dakota was required to offer the other an undivided interest at cost in the proportion specified in the EDA: 70% for Slawson and 30% for TPC. TPC also agreed to pay “an additional 10% of its share of the drilling, completing, and equipping costs for each well in which TPC elect[ed] to participate” – the “Promote Obligation.”
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07.08.2020 |
Objection to IRS Proof of Claim, Filed Before Amendment to Rule 3007 Went Into Effect, Was Properly Mailed Only to IRS
In Nicolaus v. USA (In re Nicolaus), the Eighth Circuit (Judges Stras, Benton and Gras) held that a debtor’s objection to a proof of claim filed by the IRS may properly be served by mail to the IRS, rather than by service on the Attorney General and the local United States Attorney. The Eighth Circuit’s holding is contrary to that of other courts, including the First Circuit BAP.
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05.15.2020 |
Eighth Circuit Bankruptcy Monitor
In Boisaubin v. Blackwell (In re Boisaubin), the Eighth Circuit BAP (Judges Sanberg, Nail, Saladino) affirmed the Bankruptcy Court’s (Judge Rendlen) orders approving a compromise and denying motions to file documents under seal. In so doing, the Court addressed whether an asset that was estate property in a prior case by the debtor, but which was never scheduled, becomes estate property in a later case by the same debtor once the first case is reopened and the asset abandoned. The Court answered that the asset becomes part of the second bankruptcy estate even though the asset itself was not the property of the debtor at the time the second case was filed.
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05.07.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
In County of San Mateo, California v. Peabody Energy Corp. (In re Peabody Energy Corp.), the Eighth Circuit (Judges Arnold, Gruender and Shepherd) agreed that the Bankruptcy Court (Judge Schermer) did not abuse its discretion when it held that litigation against Peabody by various California municipalities was barred by the terms of Peabody’s confirmed chapter 11 plan of reorganization. In so doing, the Court placed particular weight on the presumed intent of the plan drafters in defining exceptions from discharge – a rule of interpretation that may prove significant.
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05.05.2020 |
Eighth Circuit Bankruptcy Monitor
In Richards v. Rabo Agrifinance, LLC (In re Kip and Andrea Richards Family Farm & Ranch, LLC), the Eighth Circuit BAP (Judges Schermer, Shodeen and Sandberg) affirmed the bankruptcy court’s determination that members of a debtor LLC were equitably estopped from claiming ownership of LLC property.
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05.01.2020 |
Eighth Circuit Bankruptcy Monitor
Court May Exercise “Related To” Jurisdiction Over Adversary Complaint by a Creditor Against a Third Party; Orders Transfer of Action to State Court Although Action Originally Filed in Federal Court
In Bushman Custom Farming, LLC v. Stillmunkes (In re Stillmunkes), Bankr. N.D. Iowa, 19-01011, d/e 16, April 30, 2020, Judge Thad Collins found the Court had “related to” subject matter jurisdiction under 28 U.S.C. § 157(b)(3) to entertain a non-core adversary proceeding between a creditor and a third party. The Court elected to abstain and ordered the action transferred to an Iowa state court.
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04.29.2020 |
EIGHTH CIRCUIT BANKRUPTCY MONITOR
Judge Thad Collins of Bankr. N.D. Iowa held, as a matter of first impression, that “§ 1232(a) allows family farmers who have capital gains tax debt under Chapter 12 process to require taxing entities to issue a refund of withheld income taxes to the bankruptcy estate.”
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01.29.2020 |
By
Kersten Holzhueter, Joshua C. Dickinson
Josh Dickinson (Omaha) and Kersten Holzhueter (Kansas City) recently obtained a victory for a debt buyer in the Ninth Circuit Court of Appeals. In Barry Stimpson v. Midland Funding, LLC, the plaintiff alleged that a letter seeking to collect on a time-barred debt violated the Fair Debt Collection Practices Act. The letter offered a discount to resolve the debt and contained this language to explain that the debt could not be enforced in court: “The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.”
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12.24.2019 |
The Second Trip to the Colorado Supreme Court
No other state has a provision in its constitution like the Colorado Taxpayer Bill of Rights (“TABOR”). The TABOR measure amended Article X of the state’s constitution and restricts tax revenues and spending at all levels of government. The provision prevents tax increases without voter approval and prohibits state and local government from spending revenues collected under existing tax rates without voter approval if revenues grow faster that the rate of inflation and population growth. Tax revenues in excess of the TABOR limit must be refunded to taxpayers. The impact of the provision has been significant. Since 1992, tax authorities have refunded over $2 billion to the taxpayers.
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07.02.2019 |
Affected by a local government just compensation action? Your remedies have now changed significantly. The Supreme Court on June 21, 2019 overturned 35 years of precedent. In Knick v. Township of Scott, Pennsylvania the Court held that you can now take your federal takings claims pursuant to 42 U.S.C. § 1983 directly to federal court without exhausting state court remedies.
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08.17.2018 |
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), makes it unlawful for any person, absent the “prior express consent of the called party,” to make non-emergency calls using any Automated Telephone Dialing System (ATDS) to any telephone number assigned to a cellular telephone service. Anyone who violates the TCPA may be liable for “actual monetary loss” or $500 in damages for each violation, whichever is greater.
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05.30.2018 |
In a trio of case opinions issued on May 29, 2018, – all written by Chief Justice Nancy Rice who will retire in June – the Colorado Supreme Court ruled against the arguments of insurance companies.
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06.26.2017 |
Congress enacted the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., (TCPA) to protect consumers from “[u]nrestricted telemarketing, which it determined to be “an intrusive invasion of privacy.” The TCPA prohibits, among other conduct, telephone calls to residential phone lines or cell phones using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.
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06.08.2017 |
Using a telemarketer to market goods or services can be extremely costly to the seller if the telemarketer conducts its business in a manner that violates the Telephone Consumer Protection Act (TCPA). Penalties for violations of the TCPA range from $500 to $1,500 per call. And with call or text campaigns that may reach thousands of recipients, or even millions – the potential liability can be astronomical. It should be no surprise TCPA class action lawsuits are flourishing.
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05.17.2017 |
HB 1470, signed into law last week, does away with the “American Rule,” which impacts which party is responsible for attorney fees at the conclusion of a lawsuit. Set to go into effect in November 2017, the new law requires the court to award attorney fees to the prevailing party – paid for by the non-prevailing party.
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05.10.2017 |
The FCC’s TCPA “opt-out” notice requirements for sending solicited faxes continues to be weakened.
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01.12.2017 |
On January 10, 2017, Missouri Governor Eric Greitens signed Executive Order 17-03 (the “Order”). Among other things, the Order compels all state agencies to review each and every Missouri regulation appearing in the Code of State Regulations that falls within their jurisdiction.
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08.09.2016 |
By
Joshua C. Dickinson, Shilee T. Mullin
We are pleased to report a victory in the Eastern District of Missouri in an FDCPA case concerning the collection of statutory post-judgment interest on an unpaid Missouri state court judgment.
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12.17.2015 |
Courts sometimes have trouble determining whether a warranty explicitly extends to future performance. A recent case provides refreshing clarity on the issue.
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11.16.2015 |
A new theory of securities fraud may prove important (and dangerous) to manufacturers.
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11.10.2015 |
If you’re like many manufacturers who sell internationally, your standard terms and conditions provide that the UN Convention on Contracts for the International Sale of Goods (“CISG”) does not apply to your transaction. But, maybe they don’t, or maybe your disclaimer is ineffective (it happens a lot). In those instances, it’s important to understand where CISG differs from Article 2 of the Uniform Commercial Code, which typically covers sales of goods within the United States.
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11.04.2015 |
Today’s column is prompted by a recent decision by the Supreme Court of Missouri, in which the Court denied a Missouri manufacturer a sales tax refund.
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09.11.2015 |
Starting September 1, the U. S. Patent and Trademark Office (USPTO) has instituted a pilot program to help you preserve your trademark registration if new technology replaces the format under which the underlying goods or services identified under the registration are offered for sale or provided to consumers.
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09.02.2015 |
The United States District Court for the Southern District of California recently issued an order denying class certification to a nationwide putative class of consumers against The CBE Group, Inc. (“CBE”), which alleged that CBE made over 500 million calls to these consumers’ cell phones without their prior express consent in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”). Blair, et al. v. The CBE Group, Inc., No. 3:13-cv-00134-MMA-WVG (S.D. Cal. August 26, 2015).
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08.27.2015 |
One thing that telemarketers and other companies that communicate with their customers by calling their customer’s cellphones crave is clarity under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The Sixth Circuit recently shed some light on the meaning of “prior express consent” under the TCPA in connection with calls by a creditor to its debtor’s cellphone in the case of Hill v. Homeward Residential, Inc., No. 14-4168 (6th Cir. August 21, 2015).
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08.26.2015 |
In the case of Davidson v. Capital One Bank (USA), N.A., No. 14-14200 (August 21, 2015), the Eleventh Circuit had occasion to decide whether a bank that collects on defaulted debt it acquired from another bank is a “debt collector” under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.
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08.19.2015 |
On August 18, 2015, the D.C. Circuit Court of Appeals, sitting en banc, upheld its prior order striking a portion of the SEC’s conflict mineral rule.
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07.06.2015 |
If you review the terms and conditions given by many manufacturers in their invoices (including, probably, yours), you likely will find a provision that says something to the effect of “we agree to sell you this product if, and only if, you agree to each of these terms and conditions.” It’s a common term, and there’s a good reason for it: it can counteract standard form language in the buyer’s purchase order that you don’t like.
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07.01.2015 |
There is almost never such a thing as a magic word anymore. In medieval England, people would recite things three times to get magical protection (“third time’s the charm”). Similarly, in the earliest days of the law, parties would write contracts “under seal” that protected them, regardless of whether the contract was otherwise valid. That is what a magic word does; it protects you just by being there. Today, the law hates magic words; courts constantly dig into the hidden meaning behind material terms and the intent and understanding of the parties who use them. Because there is almost never such a thing as a magic word these days, when one does occur business owners would do well to take note.
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07.01.2015 |
A patent issued under the U.S. Patent Laws has a finite life, which is 20 years from the date of filing. A strategy to monetize a patent through licensing must take into consideration that finite life span because after the 20 year patent term, the underlying invention falls into the public domain. A patent holder may not continue to receive license royalties after the patent’s expiration, as long ago decided by the U.S. Supreme Court in Brulotte v. Thys Co., 379 U. S. 29 (1964).
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06.26.2015 |
A court recently held that a CGL insurer owed a duty to defend its insured accused of breaching express and implied warranties.
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06.15.2015 |
This is a story about a U.S. manufacturer who got into a dispute with its Chinese supplier.
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05.29.2015 |
Recently, several courts across the country have considered whether filing a proof of claim on debt that is barred by the statute of limitations violates the Fair Debt Collection Practices Act (“FDCPA”). The increased attention on this issue was sparked by the Eleventh Circuit’s decision in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014). The Eleventh Circuit held that filing a proof of claim on debt that is barred by the applicable statute of limitations violates the FDCPA. After the Eleventh Circuit’s decision, many other courts have decided the issue, and the results of these cases have been mixed. Last week, the Bankruptcy Court for the Western District of Missouri weighed in, and it found that there was no violation of the FDCPA. Dunaway v. LVNV Funding, LLC, No. 14-04132-drd, Adv. No. 14-4132, Doc. 29 (Bankr. W.D. Mo. May 19, 2015).
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05.22.2015 |
In 2011, the FTC requested public comment regarding its interpretations, rules, and guides issued under the Magnuson-Moss Warranty Act. After four years of hard work, the FTC today issued a press release headlined “FTC Will Keep Consumer Product Warranty Rules in Current Form with Some Modifications.”
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05.19.2015 |
One tactic often used with varying degrees of success to thwart putative class actions brought under various federal statutes is to file an early offer of judgment under Rule 68 that provides the named plaintiff or plaintiffs complete relief in an effort to moot the putative class claims at the inception of a class case.
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05.13.2015 |
If you regularly read this column, you know that one of the things we spend a lot of time discussing is working appropriate protections into your contracts. Plaintiffs’ attorneys understand that, and often try to work around those protections by restyling breach of contract or breach of warranty actions as tort claims – that is, claims for negligence or fraud or the like.
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05.04.2015 |
The answer lies in the details of the underlying contract and the details of the underlying insurance policy. Today more and more companies are focusing on risk transfer mechanisms within the contracts they have with their vendors, suppliers, contractors and sub-contractors.
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04.27.2015 |
File this one under “does your warranty really say what you think it says?”
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04.23.2015 |
I recently wrote about a decision from a federal district court in Alabama that sidestepped the Eleventh Circuit’s Crawford decision by finding that the Bankruptcy Code (the “Code”) and the Fair Debt Collection Practices Act (“FDCPA”) were in irreconcilable conflict, and the FDCPA gave way to the Code on the question of whether the mere act of filing a proof of claim on a stale debt in a Chapter 13 bankruptcy violated the FDCPA.
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04.15.2015 |
Beware union organizers loitering around your premises!
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04.06.2015 |
Class actions alleging technical violations of the Fair Credit Reporting Act (FCRA) against employers who obtain consumer reports on job applicants are all the rage, generating large settlements and headlines (at least in legal circles).
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04.03.2015 |
If you’re like many manufacturers, you have no dealings with the end user of your product. Rather, you sell to a distributor or other intermediate seller, who then sells your product to the end user. We have previously discussed disclaiming your implied warranties against your intermediate buyer and whether that disclaimer travels “downstream” to the end user, but we haven’t addressed whether a disclaimer made by the intermediary can protect you in a suit by the end user if, say, you failed to disclaim your implied warranties yourself or if for some reason they are not effective against the end user.
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04.02.2015 |
In the case of Isaac, et al. v. RMB, Inc., et al., No. 14-11560 (11th Cir. March 17, 2015), the Eleventh Circuit recently upheld summary judgment in favor of a debt collector based on the affirmative defense of bona fide error. The case presents a good opportunity to see what type of evidence is needed to prevail on the defense.
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03.31.2015 |
I previously have urged you to limit the remedies available under your express warranty (e.g. to repair or replacement), and to disclaim liability for incidental and consequential damages. Here, we’ll discuss a common argument made by people who want to render your efforts meaningless.
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03.25.2015 |
In a 2014 decision rued by debt collectors everywhere, the Eleventh Circuit in Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014) ruled that filing a proof of claim to collect a time-barred debt in a Chapter 13 bankruptcy violated the Fair Debt Collection Practices Act
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03.20.2015 |
For this installment, we turn to an aspect of the implied warranty of merchantability that has not gotten its fair share of attention here: what is “the ordinary purpose” for which your product is used? It seems like a simple question, but it can be deceptively tricky.
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03.10.2015 |
If you read this column with any regularity, it will not surprise you that I was thrilled to read this introduction to a recent court opinion: “The motions to dismiss in this case present a difficult legal issue, as if a civil procedure professor and a Uniform Commercial Code professor conspired on a law school exam question[.]”
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02.16.2015 |
An Illinois appellate court recently had an opportunity to decide whether an engineering firm hired to plat undeveloped land for a new subdivision was entitled to file and enforce a mechanic’s lien after the firm was not paid in full for its work.
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02.12.2015 |
Manufacturer’s Corner. So, there’s a big shipping backlog forming out west while port owners and the longshoremen work a few things out. How’s that affecting your supply contracts?
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02.12.2015 |
In Lori Jo Vincent, et al. v. The Money Store, Inc. et al, No. 03 cv 2876 (S.D.N.Y. February 2, 2015), the United States District Court for the Southern District of New York certified a class of home mortgage borrowers who defaulted on their loans and received uniform “breach letters” from a law firm sent on behalf of the defendant mortgage servicing company and the defendant lenders.
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01.30.2015 |
As I’ve noted before in these columns, an implied warranty disclaimer is an essential part of your terms and conditions. But giving an effective disclaimer is sometimes easier said than done, especially when you do not sell your product directly to the end user, but rather through a wholesaler, retailer, or other intermediary.
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01.22.2015 |
Shortly before issuing his State of the Union address, President Obama released a proposed federal law mandating notification to individuals whose personal information is compromised in certain data breaches. Not long ago, I wouldn’t have written about this issue in a Manufacturer’s Corner column, but since I recently decided that the Internet of Things will expose manufacturers to litigation over data privacy, it seems appropriate.
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01.17.2015 |
If you’re in business, chances are you’ve experienced unfair marketing tactics by one or more of your competitors. Such tactics may include false or misleading advertising or representations concerning the nature or quality of the competitor’s products or services. Or, they may consist of false or misleading statements about what you sell.
You need not stand by while your competition engages in such underhanded tactics.
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01.17.2015 |
In a case in which the Eighth Circuit found against a debtor on her claim against a collection agency based on the FDCPA, the court nevertheless adopted a standard followed by other circuits in defining when a communication is “…in connection with the collection of any debt” for purposes of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. Sarah McIvor v. Credit Control Services, Inc., No. 14-1164 (December 4, 2014).
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01.16.2015 |
In a case that will likely cause debt collectors seeking to collect time-barred obligations grave concern, the Sixth Circuit recently ruled that making an offer to settle a time-barred debt at a discount could mislead an unsophisticated consumer to believe the debt could be enforced in court in violation of the Fair Debt Collection Practices Act. Buchanan v. Northland Group, Inc., No. 13-2523 (January 13, 2015).
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01.16.2015 |
Here is good news for a certain subset of Manufacturer’s Corner readers.
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01.13.2015 |
This is not a litigation column, but I’m a trial attorney, so litigation is always on my mind. I’ve been hearing a lot of chatter lately about consumer class actions. Specifically: what must a putative consumer class do to show that the class members are ascertainable – that is, that the court and the lawyers and the class members can figure out who is in the class and who is not.
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01.07.2015 |
Here’s a thing that probably appears in your standard terms and conditions: “This agreement cannot be modified or rescinded, except in writing signed by an authorized agent of [your company].” You can go ahead and check. It’s probably down toward the bottom, above the miscellaneous provisions like choice of law.
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12.19.2014 |
An easily-overlooked portion of a contract for the sale of goods is the one that addresses what notice the buyer must give the seller in the event the goods do not conform to contract specifications or warranties. These provisions warrant your close attention, however, because they can be outcome-determinative in the event of litigation over the alleged non-conformity.
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11.26.2014 |
Here is a troubling new case from the Missouri Supreme Court. And I don’t mean troubling in the abstract sense of “oh maybe there could be liability down the road if you don’t do this,” which is pretty much the bread and butter of this column. I mean troubling in the “you may have already botched this, so you better pull out the books and call the accountants and lawyers” sense.
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11.21.2014 |
Now that we have completed our brief detour into what the Supreme Court could maybe do with the BP oil spill case if it decides to do anything with it, we resume our ongoing series on what law applies when you incorporate software into your products.
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11.16.2014 |
We take a break from our series on incorporating software into your products to talk about a case the Supreme Court is considering that may prove significant to manufacturers. This column is not typically the place to go for predictions on what the Supreme Court may do, but I want to bring this case to your attention, and circumstances are forcing me to do it now rather than later.
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11.07.2014 |
In the first installment of this series, we discussed the general scope of Article 2 of the Uniform Commercial Code, and, in the broadest terms, whether and when the purchase or sale of software falls within that scope. In this installment, we’ll move toward our goal of understanding when your purchase or sale of software is governed by Article 2 by looking at how the question has been treated by various courts over time.
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11.03.2014 |
This column spends a lot of time talking about Article 2 of the Uniform Commercial Code. A lot of time. That’s because it’s a column directed to manufacturers, and Article 2, generally speaking, deals with sales of goods.But that “generally speaking” glosses over quite a bit, and it can cause us to miss important issues.
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10.28.2014 |
The North Carolina Supreme Court recently analyzed whether a loan officer owes a borrower a fiduciary duty in a home mortgage transaction. Dallaire v. Bank of Am., ___N.C.___, 747 S.E.2d 535 (2013), decided June 12, 2014, No. 51PA13. Jacques and Fernande Dallaire (“Borrowers”) purchased a home as their primary residence in 1998. Seven years later they filed Chapter 7 bankruptcy due to unrelated business debts.
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10.26.2014 |
Remember when I wrote a glowing column about a Master Development and Supply Agreement Apple and its lawyers drafted? It was one of the most-read posts I’ve written, so I bet a good number of you do. Since the post was so popular, and since there have been some, well, we’ll say “unanticipated consequences” for Apple, I thought it warranted some follow up.
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10.16.2014 |
The Third Circuit recently affirmed denial of certification of a class of patients who alleged that the medical testing company, Quest Diagnostics, Inc., routinely overbilled patients. See Grandalski, et a. v. Quest Diagnostics, Inc., et al., No. 13-4329 (September 11, 2014). Quest Diagnostics is the country’s largest provider of medical testing.
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10.13.2014 |
There’s an unwritten rule that if you blog about manufacturing, you must blog about the Internet of Things. I blog about manufacturing, so here we are.
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10.09.2014 |
This post comes to you based on a story by the always-excellent Matt Levine of BloombergView. Evidently Apple loaned a company called GT Advanced Technologies a bunch of money so GTAT could develop and supply Apple with sapphire screens for a long time. Anyway, there may have been a default under part of that agreement, and GTAT filed for bankruptcy protection because that default was going to ruin everything (at least according to industry speculation).
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10.06.2014 |
A thing I like to do is approach people at parties and other gatherings and ask them if they know they can use contracts to shorten some statutes of limitations. Usually I get quizzical looks, but I guess the context just worked better when I mentioned it while speaking at a recent event put on by the Kansas Bar Association. An especially attentive participant asked a good follow-up question that warrants some discussion: can you shorten the limitations period for fraud?
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09.10.2014 |
In the first four installments of this series, we covered the essential components of an effective limited warranty. But each of those installments carried an important caveat: that you were not selling consumer goods. In this fifth and final installment of the series, we turn our attention to additional warranty issues to consider when selling consumer goods.
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08.28.2014 |
We pick up our discussion of effective limited warranties by addressing limitations of remedies.
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08.21.2014 |
The Seventh Circuit recently affirmed dismissal of a putative class action alleging that a major airline improperly calculated frequent-flyer miles. In Han v. United Continental Holdings, Inc. et al., No. 13-3871, decided August 11, 2014, the plaintiff, Hongbo Han, filed a putative class action against United Air Lines, Inc. and related entities (“United”) alleging it breached the terms of its frequent-flyer program, called the “MileagePlus Program.”
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08.19.2014 |
In the case of J-McDaniel Construction Co., Inc. v. Mid-Continent Casualty Company, the Eighth Circuit, applying Arkansas law, had occasion to explore the scope of a home builder’s coverage under its Commercial General Liability Insurance Policy. No. 13-267, August 4, 2014.
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08.17.2014 |
In our last installment in this series, we looked at the express warranty portion of an effective limited warranty. We now turn our attention to the importance of shortening the limitations period for bringing a warranty claim. Please remember that, for our purposes here, we’re assuming a non-consumer sale.
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08.06.2014 |
By
Patrick T. McLaughlin, Ryan C. Hardy
Pat and I recently had the opportunity to publish an article with Practical Law, called “Manufacturing Custom-made Goods in the United States.”
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08.01.2014 |
In our last installment, I introduced the importance of making your warranty terms clear. Now, we turn to the specifics, beginning with the express warranty itself. Here are some of the boxes you need to check when reviewing your express warranty.
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08.01.2014 |
Fellow federal practitioners, could something most of us do on a regular basis be a money making opportunity we’ve simply overlooked? An enterprising lawyer in the Northern District of Illinois thought so. Unfortunately, in the case of Bormes v. United States of America, No. 13-1602, (7th Circuit), handed down July 22, 2014, the Seventh Circuit answered in the negative.
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07.28.2014 |
In In re: Wholesale Grocery Products Antitrust Litigation, No. 13-1297 (May 21, 2014), the Eighth Circuit allowed an antitrust case brought by a small town, family owned grocery store in Iowa, D&G, Inc.,[1] to continue against the nation’s two largest wholesale distributors, SuperValu, Inc. and C&S Wholesale Grocers, Inc., finding disputed facts prevented summary judgment.
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07.25.2014 |
I previously wrote about the legal battle in St. Louis brought by Metropolitan Taxicab Commission (“MTC”) against the rideshare app company Lyft in the Circuit Court of the City of St. Louis, Missouri, Case No. 1422-CC0089-01. My comment can be found here.
As I discussed, the court entered a temporary restraining order prohibiting Lyft from operating in St. Louis and St. Louis County. On July 14, 2014, the court again ruled in favor of the MTC, granting a preliminary injunction prohibiting Lyft from operating in the St. Louis area until a final decision is reached on the merits of the case.
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07.25.2014 |
It’s a sad fact of life at companies and law firms that sometimes things are done a certain way just because that’s how they’ve always been done. Part of the reason this column spends so much time talking about your terms and conditions, however, is because that’s dangerous: how you do things now should be informed by the past, but not bound by the past.
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07.24.2014 |
Manufacturers and lessors of equipment and other products doing business in Missouri can take heart that the Eighth Circuit has issued its third opinion in the past year applying Missouri’s economic loss doctrine to bar negligent misrepresentation claims in cases involving allegedly defective or unsuitable products.
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07.18.2014 |
I’m going to break my self-imposed rule of writing for manufacturers instead of lawyers. This post is some pretty in-the-weeds stuff, but the topic has been on my mind and I think it’s interesting. If you have opinions on it, I’d love to hear them.
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07.11.2014 |
Expanding on our recent discussion about how your shipping terms can affect risk of loss in the product you sell, let’s turn to other contract provisions that implicate the same issue: sales on approval or return.
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07.03.2014 |
It’s inevitable: at some point, you will ship goods to your buyer, and the buyer will complain that they don’t conform to the contract specifications. When you’re dealing with a small shipment or a great customer, often the simplest solution is to accept the return and send replacement goods. Other times, however, you’ll be dealing with a major shipment or a problem customer, and you must be certain that you protect yourself while responding to the customer’s concerns.
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06.25.2014 |
In recent installments of the Manufacturer’s Corner, we have discussed how to protect yourself from insolvent customers and how your shipping terms can expose you to unexpected risk. Thanks to the Bankruptcy Court for the Eastern District of Pennsylvania, we can explore how those two issues play together.
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06.20.2014 |
We continue our discussion of June’s interesting implied warranty cases with a trip south to the Supreme Court of Texas. As I mentioned in the previous installment of the Manufacturer’s Corner, the Court declared a simple, bright-line rule on how a valid disclaimer of the implied warranty of merchantability affects remote purchasers.
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06.16.2014 |
In this head-scratcher of an opinion, the Michigan Court of Appeals makes three legal conclusions that will shock practitioners.
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06.06.2014 |
The Oregon Supreme Court has given us a great platform to discuss what happens when a buyer simply decides that breaching the contract is a better idea than performing. It’s an important case to consider, both in your capacity as a seller of goods, and in your capacity as a frequent buyer of goods under long-term sales contracts.
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06.02.2014 |
In a happy coincidence of timing, the Eleventh Circuit Court of Appeals recently issued an entertaining opinion addressing the Carmack Amendment, which is a federal law limiting the liability of motor carriers for loss or damage of goods during shipment. The opinion will allow us to continue our discussion of mitigating shipping risks, introduced in the last installment of this column.
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03.04.2014 |
On November 12, 2013, the First Circuit Court of Appeals handed down its decision in VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC, slip op. (1st Cir., 2013). This decision serves as a reminder that courts will look carefully at the words used in a loan agreement’s environmental indemnity provisions to decide whether or how they apply. If the actual wording chosen (likely many years earlier) does not fit the environmental costs sought to be indemnified, the party pursuing indemnity may be greatly disappointed.
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