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Consumer Class Actions: 28 U.S.C. § 1446. Procedure for removal of civil actions

(a) Generally.—A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

Consumer Class Actions: 28 U.S.C. § 1711. Definitions

In this chapter:

(1) Class.—The term “class” means all of the class members in a class action.

(2) Class action.—The term “class action” means any civil action filed in a district court of the United States under rule 23 of the Federal Rules of Civil Procedure or any civil action that is removed to a district court of the United States that was originally filed under a State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representatives as a class action.

Consumer Class Actions: 28 U.S.C. § 1712. Coupon settlements

(a) Contingent fees in coupon settlements.—If a proposed settlement in a class action provides for a recovery of coupons to a class member, the portion of any attorney’s fee award to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed.

(b) Other attorney’s fee awards in coupon settlements.

Consumer Class Actions: 28 U.S.C. § 1713. Protection against loss by class members

The court may approve a proposed settlement under which any class member is obligated to pay sums to class counsel that would result in a net loss to the class member only if the court makes a written finding that nonmonetary benefits to the class member substantially outweigh the monetary loss.

[Added by Pub. L. No. 109-2, § 3(a), 119 Stat. 7 (Feb. 18, 2005)])

Consumer Class Actions: Findings and Purposes of Class Action Fairness Act

As reprinted from the Class Action Fairness Act of 2005, section 2:

(a) FINDINGS—Congress finds the following:

(1) Class action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.

Consumer Class Actions: 14.10.1 Court Options When All or Part of a Recovery Cannot Be Paid Directly to Class Members

Cy pres or fluid recovery259 are procedural devices in class actions that, with court approval, distribute money damages indirectly for the benefit of the class of persons on whose behalf the litigation was brought rather than directly to class members.260 Cy pres awards ideally should be used to provide indirect benefit to absent members of the plaintiff class or to further the rights that formed the basis for the underlying litigation, which itself is an indirect benefit

Consumer Class Actions: 19.4.1 Overview

There are three possible ways to resolve a class case successfully and to receive attorney fees. The first is to win the case after trial or summary judgment and later petition the court for fees. The second is to negotiate a settlement of the class claims, have the court approve the settlement, and later negotiate or petition for fees.267 The third is to negotiate a settlement that covers both the recovery for the class and an award of fees.

Consumer Class Actions: 5.9 Reviewing the Complaint with the Client

Conduct a thorough review of the underlying facts with the potential class representative before the complaint is filed. Make sure that the class representative understands the factual allegations that form the basis of the defendant’s wrongful conduct. To the extent possible, educate the class representative on the basic legal theories under which the case will be prosecuted.

Consumer Credit Regulation: 3.2.4.1 Introduction

This section examines the application of preemption principles and the OCC rule to specific non-mortgage lending practices and loan features. It first examines the ten topics on which the OCC regulation, if it is valid, preempts state law limitations. It then analyzes the savings clause and several types of state laws that are generally carved out from preemption.

Consumer Credit Regulation: 3.2.4.2 Licensing, Registration, or Reports

The OCC regulation preempts state law limitations regarding “licensing, registration (except for purposes of service of process), filings, or reports by creditors.”183 Many state credit laws require lenders to be licensed and require them to file annual reports with a state regulator.184 Most of those laws are drafted to apply only to non-bank lenders, but to the extent they do not exclude national banks and federal savings associations they are probably preempted.

Consumer Credit Regulation: 3.2.4.3 Insurance and Other Credit Enhancements or Risk Mitigants; Debt Cancellation Contracts

The OCC regulation preempts state law limitations concerning “[t]he ability of a creditor to require or obtain insurance for collateral or other credit enhancements or risk mitigants, in furtherance of safe and sound banking practices.”187 Significantly, the language of the rule refers only to the ability to require or obtain insurance, not to any other aspect of insurance.

Consumer Credit Regulation: 3.2.4.5 Credit Terms

The OCC regulation provides that state law limitations concerning

the terms of credit, including the schedule for repayment of principal and interest, amortization of loans, balance, payments due, minimum payments, or term to maturity of the loan, including the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan

Consumer Credit Regulation: 3.2.4.6 Escrow Accounts

The OCC regulation preempts state law limitations regarding “escrow accounts, impound accounts, and similar accounts.”213 Escrow account issues are unlikely to arise in the typical non-mortgage consumer loan, and no cases have been found that apply or illuminate this provision outside the mortgage context.

Consumer Credit Regulation: 3.2.4.7 Security Interests

The regulation preempts state law limitations regarding “security property, including leaseholds.”214 No cases have been found that apply or illuminate this provision to preempt state law, but it probably means that states cannot limit the types of collateral a national bank or federal savings association can take as security for a loan. Courts have held that state repossession protections and procedures are not preempted.215