As anyone who is associated with the residential real estate settlement services industry can appreciate, resolution of the PHH case by the full bench of the D.C. Circuit Court of Appeals has brought much-needed clarity and reason to fundamental issues under the Real Estate Settlement Procedures Act (RESPA). This includes clarifying that Section 8(c) of RESPA really is an exemption and that the time limit for the government to bring a RESPA enforcement action administratively is three years—the same as for a government enforcement action that is brought in court.
There is a growing movement to rely on last year’s United States Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court of California to preclude multistate class actions on jurisdictional grounds. In January of this year, relying on Bristol-Myers, Judge Leinenweber of the Northern District of Illinois rejected a named plaintiff’s attempt to bring a nationwide class action in DeBernardis v. NBTY Inc.
The Telephone Consumer Protection Act remains a hotbed of class action litigation. With statutory damages of up to $1,500 for each call, text or fax, the potential exposure creates the threat of annihilating damages for some businesses. This article discusses an additional, often overlooked, tool for defendants in TCPA cases — moving to compel arbitration. It may be useful in cases that raise the threat of what former Second Circuit Judge Henry Friendly once referred to as “blackmail settlements”: cases where the potential damages are so overwhelming that even defendants with meritorious defenses may feel compelled to settle.
On January 22, 2018, the United States Supreme Court, quietly and without commentary, declined to review the Ninth Circuit Court of Appeals’ recent decision in the storied Spokeo, Inc. v. Robins case. In 2016, the Supreme Court issued a decision in the same case to provide guidance on how federal courts should analyze Article III standing in cases alleging statutory violations.
Last week, a split Ninth Circuit panel in In re Hyundai and Kia Fuel Economy Litigation vacated the certification of a nationwide class for settlement purposes because the district court failed to address choice-of-law issues and the variations in the relevant state laws, and also improperly “presumed” reliance on allegedly “misleading advertising.” The case demonstrates the significant obstacles to certifying a nationwide class. Judge Sandra Ikuta’s majority opinion, joined by Judge Andrew Kleinfeld, also emphasizes the duty to conduct a “rigorous analysis” into whether a proposed class meets Rule 23’s requirements before granting certification, even in the context of certifying a class for settlement purposes.