Justia U.S. 11th Circuit Court of Appeals Opinion SummariesArticles Posted in Consumer Law
Steven Arkin, et al. v. Smith Medical Partners, LLC, et al.
Plaintiff and his counsel, Anderson + Wanca (“Wanca”), appealed the district court’s denial of their motion for Wanca to receive a portion of the attorneys’ fees resulting from the settlement of a class-action lawsuit brought under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. Section 227. Wanca, while not appointed as class counsel in this case, began the chain of litigation that resulted in the settlement below and so contends that it provided a substantial and independent benefit to the class justifying a portion of the attorneys’ fees. The Eleventh Circuit affirmed the district court’s ruling. The court explained that while the court did find that Wanca has shown it provided one substantial and independent benefit to the class, Wanca’s prioritization of its interests over the class’s interests throughout the litigation forecloses the equitable relief Wanca seeks. The court explained that non-class counsel is generally entitled to a portion of a common fund recovered in a class action as attorneys’ fees under Rule 23(h) if non-class counsel confers a substantial and independent benefit to the class that aids in the recovery or improvement of the common fund. Here, the mere fact that Wanca devoted substantial time and effort to litigating this class action does not entitle Wanca to attorneys’ fees. Simply put, most of the 671.95 hours Wanca spent litigating Arkin I and II did not aid in the recovery or improvement of the common fund obtained under the Pressman Settlement in Arkin III. View "Steven Arkin, et al. v. Smith Medical Partners, LLC, et al." on Justia Law
Howard Michael Caplan v. All American Auto Collision, Inc., et al
Plaintiff retained an attorney of the Advocacy Law Firm to sue Defendants for alleged ADA violations following Plaintiff’s visit to Defendants’ place of business. The attorney has filed hundreds of lawsuits under the ADA on behalf of Plaintiff and others. As the prevailing party, Plaintiff moved for attorney’s fees.. While the district court found that Plaintiff was entitled to attorney’s fees, the district court determined that the requested amount was grossly disproportionate given the case’s circumstances. The district court therefore reduced the requested fees. Plaintiff argued that the district court abused its discretion in reducing the amount he requested for attorney’s fees. The Eleventh Circuit affirmed the award, holding that the district court did not abuse its discretion in finding that the attorney billed an excessive number of hours given the complexity of the case. The court noted that the attorney has been involved in hundreds of ADA lawsuits, including 140 during the case. Additionally, the district court found that the pleadings and motions filed here were “boilerplate” and much like filings in the attorney’s other ADA cases. Further, the record reflects that the attorney was unduly litigious and engaged in unnecessary motion practice. Accordingly, the court concluded that the district court did not abuse its discretion in finding that the attorney unnecessarily prolonged the litigation which, in turn, unnecessarily increased the amount of attorney’s fees. View "Howard Michael Caplan v. All American Auto Collision, Inc., et al" on Justia Law
Constance Daniels v. Select Portfolio Servicing, Inc.
Plaintiff sued Select Portfolio Servicing ("Portfolio"), a mortgage servicer, under the Fair Debt Collections Practices Act ("FDCPA") and the Florida Consumer Collection Practices Act ("FCCPA"). Plaintiff claimed that several mortgage statements sent by Portfolio misstated a number of items, including the principal due, and that by sending these incorrect statements, Portfolio violated the FDCPA and FCCPA. The district court dismissed Plaintiff's complaint, finding the mortgage statements were not "communications" under either statute.The Eleventh Circuit reversed, holding that monthly mortgage statements may constitute "communications" under the FDCPA and FCCPA if they "contain debt-collection language that is not required by the TILA or its regulations" and the context suggests that the statements are an attempt to collect or induce payment on a debt. View "Constance Daniels v. Select Portfolio Servicing, Inc." on Justia Law
Consumer Financial Protection Bureau v. Ocwen Financial Corporation, et al.
The Consumer Financial Protection Bureau (“CFPB”) sued Ocwen Financial Corporation (“Ocwen”) and several of its affiliates claiming some of the company's mortgage-servicing practices violated federal law. The CFPB’s suit was resolved by a settlement agreement that was memorialized in a formal consent judgment. The CFPB sued Ocwen a second time, alleging various consumer-protection law violations occurring between January 2014 and February 2017. The district court granted summary judgment to Ocwen on res judicata grounds, reasoning that the 2013 action barred the lawsuit.The CFPB contends that the 2013 action’s res judicata effect should be controlled by that case’s consent judgment, not its complaint and that the underlying settlement agreement shows that the parties didn’t intend to preclude a challenge to any conduct occurring from 2014 onwards. The court reasoned that determining the preclusive effect of a consent judgment requires applying contract law principles. The court found that the res judicata effects of an earlier lawsuit resolved by a consent judgment are measured by reference to the terms of the consent judgment, rather than the complaint. Thus, CFPB may sue Ocwen for alleged violations that occurred between January 2014 and February 2017, if the claims are not covered by the consent judgment’s servicing standard, monitoring, and enforcement regime. View "Consumer Financial Protection Bureau v. Ocwen Financial Corporation, et al." on Justia Law
Pincus v. American Traffic Solutions, Inc.
Pincus’s vehicle was photographed running a red light in North Miami Beach. His notice of violation stated that he owed a statutory penalty of $158 and that if Pincus paid online or by phone, he would be charged an additional convenience fee. Pincus paid online with a credit card and was required to pay both the statutory penalty and the convenience fee. Pincus brought a putative class action against ATS, the vendor that operated the city’s red-light enforcement program. He alleged that several Florida statutes barred ATS from charging the convenience fee and that ATS was unjustly enriched by retaining the fee. The district court dismissed Pincus’s complaint,The Eleventh Circuit certified questions to the Supreme Court of Florida, which explained that a claim for unjust enrichment under Florida law required Pincus to allege that “it was inequitable for ATS to retain” the convenience fee. Even assuming Florida law barred ATS from charging the fee, the court concluded, it was “not inequitable” for ATS to retain the fee because Pincus received “value in exchange,” including not having to procure postage and a check or money order; being able to pay the balance over time; avoiding the risk of payment being delayed, stolen, or lost; being afforded more time because his payment would be received instantaneously; and receiving immediate confirmation of payment. The Eleventh Circuit, in response, affirmed the dismissal. View "Pincus v. American Traffic Solutions, Inc." on Justia Law
Marrache v. Bacardi U.S.A., Inc.
Winn-Dixie sells Bacardi’s Bombay Gin in its stores. According to Bombay’s marketing and labeling, the gin contains ten “hand-selected botanicals from exotic locations around the world,” including “grains of paradise.” Marrache filed a class action under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and for unjust enrichment, alleging that the inclusion of grains of paradise violated Florida Statute 562.455.The Eleventh Circuit affirmed the dismissal of the suit. FDUTPA’s safe harbor provision exempts acts or practices required or specifically permitted by federal law. Under the Food Additives Amendment to the Federal Food, Drug, and Cosmetic Act, the FDA had expressly identified grains of paradise as a substance “generally recognized as safe.” In addition, the complaint did not sufficiently allege any actual damages resulting from the purported unfair or deceptive act. Marrache’s amended complaint made no allegations of actual damages, but rather, alleged that he and the other class members were injured by purchasing an illegal product that he claimed was worthless. Marrache did not, however, allege that he could not or did not drink the gin, that he sought a refund of or complained about the Bombay, or that he suffered any side effect, health issue, or harm from the grains of paradise. View "Marrache v. Bacardi U.S.A., Inc." on Justia Law
Horn v. Liberty Insurance Underwriters, Inc.
The Eleventh Circuit concluded that, under Florida law, the policy exclusion barring coverage for claims arising out of an invasion of privacy unambiguously excludes coverage for claims alleging violations of the Telephone Consumer Protection Act of 1991 (TCPA) in which the complaint repeatedly alleges that defendants invaded the privacy of plaintiffs. The court explained that the invasion of privacy exclusion barred coverage for the class action here because the class complaint specifically alleged that iCan intentionally invaded the class members' privacy and sought recovery for those invasions. Accordingly, the court affirmed the district court's grant of summary judgment to Liberty. View "Horn v. Liberty Insurance Underwriters, Inc." on Justia Law
Losch v. Experian Information Solutions, Inc.
Plaintiff filed suit against Experian, alleging that the credit reporting agency violated the Fair Credit Reporting Act's (FCRA) requirements. The district court concluded that Experian did not violate the FCRA and granted summary judgment in favor of the agency.After determining that plaintiff had Article III standing, the Eleventh Circuit concluded that plaintiff's claims that Experian negligently violated 15 U.S.C. 1681e and 1681i by failing to undertake reasonable procedures to ensure maximal accuracy in its credit reports, and to conduct a reasonable reinvestigation of disputed information, survive summary judgment. However, the court concluded that plaintiff failed to establish that Experian acted willfully where the agency's interpretation could reasonably have found support in the courts. Accordingly, the court vacated in part, affirmed in part, and remanded for further proceedings. View "Losch v. Experian Information Solutions, Inc." on Justia Law
Hunstein v. Preferred Collection and Management Services, Inc.
After a debt collector electronically transmitted data concerning a consumer's debt to a third-party vendor, the third-party vendor then used the data to create, print, and mail a "dunning" letter to the consumer. The consumer then filed suit alleging that, in sending his personal information to the vendor, the debt collector had violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692c(b), which, with certain exceptions, prohibits debt collectors from communicating consumers' personal information to third parties "in connection with the collection of any debt." The district court dismissed the action.The Eleventh Circuit held that a violation of section 1692c(b) gives rise to a concrete injury in fact under Article III. The court also concluded that the debt collector's transmittal of the consumer's personal information to its dunning vendor constituted a communication "in connection with the collection of any debt" within the meaning of section 1692c(b). Accordingly, the court reversed and remanded for further proceedings. View "Hunstein v. Preferred Collection and Management Services, Inc." on Justia Law
I Tan Tsao v. Captiva MVP Restaurant Partners, LLC
Plaintiff filed suit against PDQ, a restaurant he patroned, after a data breach that exposed PDQ customers' personal financial information. The Eleventh Circuit affirmed the district court's dismissal without prejudice and held that plaintiff did not have standing to sue based on the theory that he and a proposed class of PDQ customers are now exposed to a substantial risk of future identity theft. The court explained that plaintiff failed to allege either that the data breach placed him in a "substantial risk" of future identity theft or that identity theft was "certainly impending." The court stated that evidence of a mere data breach does not, standing alone, satisfy the requirements of Article III standing, and thus plaintiff does not have standing here based on an "increased risk" of identity theft. In the alternative, the court held that plaintiff has not suffered actual, present injuries in his efforts to mitigate the risk of identity theft caused by the data breach. View "I Tan Tsao v. Captiva MVP Restaurant Partners, LLC" on Justia Law