This article examines important developments at the Supreme Court, Second Circuit, and the district courts since the Fifth Circuit’s October ruling that the CFPB’s funding mechanism is unconstitutional and that a CFPB rule must thus be vacated. The article also offers updated litigation practice pointers for cases involving CFPB rules where defendants may challenge the rule’s validity based on the CFPB’s funding mechanism.
Class, Individual Litigation
Protecting Awards for Named Plaintiffs; Other Class Action Practice Tips
This article provides practical steps to respond to an Eleventh Circuit ruling prohibiting extra recoveries for class representatives—a ruling that can cause havoc with prosecution of consumer class actions. The article also explains how to use the Supreme Court’s Ramirez case to breathe new life into state court class actions and highlights available practice tools from today’s most successful consumer class action practitioners.
Tips on Handling Attorney Fee Hearings
This article provides practice pointers for attorney fee hearings, based on the author’s 44 years of trial experience handling exclusively consumer law cases. The article focuses on time records and other steps to take well before the hearing, use of a 50-state survey of consumer attorney fee rates, getting ready for the hearing, and tips for conduct of the hearing itself.
Impact of Supreme Court’s “Major Question Doctrine” on Consumer Litigation
The Supreme Court’s June 30 decision in West Virginia v. EPA is significant in its application of the “major question doctrine” to agency rulemaking, and consumer lawyers can expect to see this doctrine raised as a defense in their cases. This article explains the doctrine, why it is inapplicable to almost all consumer litigation, and provides five tips to show that it is inapplicable.
Supreme Court Supports Equitable Tolling to Extend Legal Deadlines
This article examines an April 21, 2022, Supreme Court decision with important application to the equitable tolling of limitations periods found in federal consumer statutes. The article explains when equitable tolling should be available, lists actions justifying equitable tolling, and considers other approaches to extending limitations periods, including the fraud discovery rule.
Bringing Federal Consumer Claims in State Court: A 50-State Analysis of Standing Rules
The Supreme Court’s decision in TransUnion L.L.C. v. Ramirez, 141 S. Ct. 2190 (2021), creates serious constitutional standing obstacles for consumer litigation in federal court, particularly for class actions and claims seeking statutory damages. As explained in another NCLC article, Ramirez held that a credit reporting agency’s false identification of class members as terrorists did not cause...
Practice Implications of June 25 Supreme Court Ramirez Decision
The Supreme Court’s June 25 Ramirez decision reshapes constitutional standing for federal court FCRA, FDCPA, TILA, TCPA, RESPA and other individual and class cases based on consumer statutes. This article details Ramirez’s practice implications for varied types of consumer injury, provides pleading and proof tips, and explains how initiating a case in state court may alleviate standing problems.
Supreme Court Issues Expansive Ruling on Personal Jurisdiction
A favorable March 25, 2021, Supreme Court ruling allows consumers to bring claims in their home state against out-of-state companies, even where the companies had no contact with the consumer in the consumer’s state of residence. This article explains the Court’s holding and then suggests nine types of cases where the ruling can help advance consumer litigation.
Manufactured Home Creditors’ Unique Exposure to Consumer Claims
This article examines nine ways that manufactured home creditors face unique legal exposure to consumer claims and remedies, including recent developments that may increase such creditor liability. Examples are a federal ban on arbitration clauses in manufactured home credit, special statutes making manufactured home creditors liable for warranty violations, statutory damages of tens of thousands of dollars for UCC Article 9 violations, and more.