The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court. The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, constituted sufficient harm to confer Article III standing to a FCRA plaintiff. The Court ultimately declined to resolve the question, instead remanding the case back to the Ninth Circuit to consider whether the Spokeo plaintiff’s injuries were sufficiently “concrete” to confer Article III standing. In so doing, the Court advised that a statutory cause of action does not automatically empower courts to resolve alleged violations of the statute; rather, Article III requires that the statutory violation must cause the plaintiff to suffer harm that “actually exist[s]” and is not merely “abstract” or “procedural.” 136 S. Ct. at 1548-49.
As its term drew to a close, the Supreme Court handed down its latest decision on personal jurisdiction in a case entitled Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. Over the last six years, the Supreme Court has issued six opinions clarifying the limits of courts’ personal jurisdiction, each invalidating the exercise of jurisdiction. Given these major, relatively fast-moving developments in such a fundamental area of the law, we thought a brief overview would be helpful for companies to better understand where they can and cannot be sued. This post will take each of the Court’s recent decisions in turn to give you the brass tacks of what you should know about the holding and conclude with some thoughts about where the Supreme Court might go from here.
In order to certify a class action, it is the plaintiff’s burden to prove that all of the requirements of Rule 23 of the Federal Rules of Civil Procedure are satisfied. In some class actions, plaintiffs cannot proceed without expert testimony that can prove, at a minimum, that issues can be addressed based on common evidence. In those types of cases, courts cannot take a “wait-and-see” approach to shaky expert opinions. As the Seventh Circuit had made clear, courts must decide Daubert challenges to “conclusively rule on any challenge to [an] expert’s qualifications or submissions prior to ruling on a class certification motion.” And in Haley v. Kolbe & Kolbe Millwork, Inc., the lower court was listening. Its decision, which the Seventh Circuit affirmed in full last week, reminds class action defense counsel of the important role pursuing Daubert challenges can play when opposing class certification.
On July 12, 2017, a federal district court in Kentucky issued a summary judgment ruling for the defense in the ongoing Borders & Borders case1 brought by the Consumer Financial Protection Bureau (CFPB or Bureau). In this long-running case, the Bureau alleged that profit distributions paid to joint venture partners constituted illegal kickbacks in violation of Section 8(a) of the Real Estate Settlement Procedures Act (RESPA),2 and that the defendants could not rely on the safe harbor provision for “affiliated business arrangements” (ABAs) in Section 8(c)(4) of RESPA.3
The court, however, ruled that the defendants were entitled the protection of the ABA exemption as a matter of law, and dismissed the Bureau’s case.
On July 10, 2017, in a surprise move, the Consumer Financial Protection Bureau (CFPB or Bureau) issued its long awaited final rule on arbitration (Final Arbitration Rule). This rule-making has been a lightning rod issue for the Bureau, and its Final Arbitration Rule is likely to face serious political and legal challenges in the weeks and months to come. Even if the rule survives those challenges – and that if a big if – it does not become mandatory until early March 2018 and its provisions are not necessarily as sweeping as some press accounts may suggest. Here is what real estate settlement service and other consumer financial services providers need to know about the Final Arbitration Rule, at a glance.