Following Borders & Borders PLC’s (Borders) successful summary judgment motion last summer, the Consumer Financial Protection Bureau (CFPB or Bureau) filed a motion for reconsideration with the federal district court in Kentucky, arguing that the court had misconstrued the affiliated business arrangements (ABAs) exemption under RESPA section 8(c)(4). Late last week, the court not only rejected the Bureau’s motion,[i] but also surprisingly departed from its previous analysis with respect to the ABAs in question. The decision touches on several important RESPA issues and may help reveal the contours of the Bureau’s new RESPA enforcement strategy going forward.
Parties have long argued over whether the filing of a class action tolls the statute of limitations for absent class members so that they can pursue a separate class action if the initial action fails to be certified for any reason. Most courts have been understandably wary of the notion that statutory limitations periods can be extended indefinitely by a series of absent class members filing successive (i.e., “stacked”) class actions until certification is achieved. Now, the U.S. Supreme Court will examine that issue in China Agritech, Inc. v. Resh, which is slated for oral argument on March 26, 2018.
On March 16, 2018, almost seventeen months after oral argument, the U.S. Court of Appeals for the District of Columbia finally issued its ruling on several consolidated administrative challenges to the Federal Communications Commission’s (FCC) July 2015 Omnibus Declaratory Ruling and Order (Order) interpreting various provisions of the Telephone Consumer Protection Act. ACA Int’l v. FCC, No. 15-1211 et al., 2018 WL 1352922 (D.C. Cir. Mar. 16, 2018). The decision focused on four aspects of the 2015 Order: (a) the definition of the term “automatic telephone dialing system” (ATDS), which turned on present or potential capacity with modifications such as software changes; (b) liability for calls to reassigned numbers and the FCC’s “one-call” post-reassignment safe harbor for such calls; (c) the FCC’s clarification that consumers may revoke consent via any reasonable method; and (d) the FCC’s exemption from consent requirements for calls to wireless numbers for which there is exigency and that have a healthcare treatment purpose.
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.