Skip to main content

Search

Consumer Arbitration Agreements: 7.4a.2 Retroactive Effect Limited

The EFASASHA applies with respect to any “dispute or claim” that arises or accrues on or after March 3, 2022.97 While this language is subject to differing interpretations, at least some courts have required that the actual sexual harassment or assault occur after March 3, 2022, not just that the case be filed, or pre-litigation activity regarding the dispute commence, after March 3, 2022.98 On the ot

Consumer Arbitration Agreements: 7.9.2.3 Significance and Extent of Disclosure Requirement

Requiring disclosure of the arbitration requirement in the written warranty means that if a seller provides the written warranty document after the sale is consummated (as is often the case) then the warrantor must provide two documents relating to arbitration. The first one will contain the arbitration agreement presented to and assented to by the consumer prior to consummating the sale. The second will be a disclosure of the arbitration requirement in the written warranty.

Consumer Arbitration Agreements: 7.9.2.1 General

Written warranties and service contracts must comply with the disclosure requirements set out in the Magnuson-Moss Warranty Act.186 While the Federal Arbitration Act may preempt state disclosure requirements,187 it does not preempt federal disclosure requirements.

Unfair and Deceptive Acts and Practices: 2.5.3.2.1 Rate exportation and complete preemption of usury claims against national banks

The National Bank Act allows national banks, when originating credit, to charge either the highest rate allowed by the law of the bank’s home state or an alternative federal rate.2414 Consequently, national banks are not subject to the usury laws of the states to which they export interest rates, or to claims under that state’s UDAP statute that seek to impose limits on those rates.2415 The Supreme Court has interpreted the term “interest” to encompass and to preempt state laws regarding a w

Unfair and Deceptive Acts and Practices: 2.5.3.3.6 UDAP claims that impose substantive standards

Courts often held that the former OTS regulation preempted UDAP claims based on unconscionability, unfairness, unreasonableness, or unlawfulness that were framed as substantive attacks on loan terms or lender practices.2489 For example, the Seventh Circuit held that claims that were not based on breach of contract or misrepresentation—including claims for failing to provide mortgagors with adequate monthly statements of their account balances, assessing “excessive” late fees, and force placing insurance on properties that already have insur

Unfair and Deceptive Acts and Practices: 2.5.3.4 Preemption Issues for State-Chartered FDIC-Insured Banks and Other State Lenders

National Bank Act (NBA) and Home Owners Loan Act (HOLA) preemption applies just to depositories regulated under those statutes—national banks and federal savings associations, respectively. This preemption does not directly apply to state-chartered banks, savings associations, or credit unions.2498 Nevertheless, NBA or HOLA preemption does have an indirect impact on state-chartered depositories.

Unfair and Deceptive Acts and Practices: 2.5.4 Federal Vehicle, Boat, and Manufactured Home Standards

The National Traffic and Motor Vehicle Safety Act (NTMVSA) has an express preemption provision that prohibits states from adopting standards for aspects of motor vehicle performance that are governed by federal standards, unless the state standard is identical to the federal standard.2541 The statute expressly preserves state common law claims.2542 However, the Supreme Court has held that the statute implicitly preempts common law tort claims that stand as an obstacle to the accomplishment o

Unfair and Deceptive Acts and Practices: 2.5.5.1 Carmack Amendment

The federal Carmack Amendment, which limits the liability of carriers of interstate freight shipments, provides the exclusive remedy against shippers for loss or damage to goods and preempts tort, contract, and UDAP claims.2558 Courts have held that the Carmack Amendment even preempts a UDAP action based on misrepresentations before the contract was signed, if the damages are based on loss of or damage to the goods.2559 The First Circuit has, however, held that claims for emotional distress

Unfair and Deceptive Acts and Practices: 2.5.6 Federal Communications Laws

Under the “filed tariff” doctrine, utility tariffs filed with the state or federal government may prevent a consumer from enforcing rights that conflict with the filed tariffs.2590 In recent years, however, many telecommunication companies have been deregulated. If a company does not file tariffs with a regulator, the filed tariff defense will be unavailable.2591

Unfair and Deceptive Acts and Practices: 2.5.8.2 Medicare

A federal court held that UDAP claims were not preempted in an action against a hospital owner regarding Medicare reimbursements.2630 A claim that nursing homes had failed to pay wage increases that the state funded on a pass-through basis was also not preempted by the Medicare laws as it did not deal with Medicare cost reimbursement.2631 Nor did the Medicare laws preempt a UDAP claim that a drug company misrepresented the “average wholesale price” on which Medicare reimbursements are based.