Portfolio Recovery Associates TCPA Litigation Settlement

My co-counsel and I recently obtained preliminary approval of a class settlement of TCPA claims against Portfolio Recovery Associates and related defendants. We are pleased to present the settlement to the approximately 7.4 million class members. The settlement concludes five years of litigation, not only before the federal court in the Southern District of California, but also the California Superior Court for the County of San Diego, the United States Court of Appeals for the Ninth Circuit, and the Judicial Panel for Multidistrict Litigation, as well as years of painstaking negotiation with the Court’s assistance. The settlement will provide millions of dollars of compensation to the class members and substantial prospective protection of their rights under the TCPA with a consent decree.

Due to the number of class members and volume of related inquiries, class members should  first contact the settlement administrator with questions. The settlement administrator’s website should answer most questions about the settlement. If class members need to call to ask questions about the settlement via telephone, they should call 1-888-301-8552. The settlement administrator will forward questions to class counsel that the settlement administrator is not able to answer.

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Motion for summary judgment in TCPA case denied

The defendant in the In re Collecto, Inc. multidistrict litigation proceeding brought an ill-considered and ill-fated motion for summary judgment, arguing that the FCC did not have authority to construe the definition of an “automatic telephone dialing system” under 47 U.S.C. § 227(a)(1).

Arguing against an administrative agency’s interpretation of a statute is usually an uphill battle, but arguing against the FCC’s decisions before a district court inevitably runs afoul of the Hobbes Act, which provides the “court of appeals . . .has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communication Commission[.]” 28 U.S.C. § 2342(1). The defendant had some other arguments as to why the Court should not enforce the Hobbs Act (notwithstanding its categorical language) but those argument were not well-taken either. On February 10, the Court denied the defendant’s motion.

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Pew Report on Checking Accounts

The Pew Charitable Trusts has released the 2015 update to its report on checking accounts, “Checks and Balances.” This is a survey of disclosures from the 50 largest banks based on domestic deposit volume as tabulated in June 2014 by  the FDIC. The update focused on overdraft policies; its findings present a complex picture that consumer advocates should examine closely. Other interesting findings:

  1. Nine out of ten American households use a checking account
  2. Just three banks (Bank of America, Chase, and Wells Fargo) hold a third of all domestic deposits
  3. Sixty-four percent (64%) of the surveyed banks had a clause requiring mandatory arbitration and a class action waiver
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35 Percent of Americans Facing Debt Collectors

Citing the Urban Institute’s recent study “Debt in America,” the Associated Press says “[m]ore than 35 percent of Americans have debts and unpaid bills that have been reported to collection agencies.” More noteworthy findings in the study:

  • Americans with mortgages have an average of $209,768 of debt, while those without mortgages have an average of $11,592 of debt.
  • High average debt levels tend to concentrate in metropolitan statistical areas (MSAs) where homeownership is prevalent and prices are high.
  • Eighty (80) percent of Americans with a credit file do not hold any mortgage debt.
  • “California is second only to the District of Columbia in lowest level of non-mortgage debt relative to income.”
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Appellate win in credit-reporting case

The Ninth Circuit handed us a nice win in a case under the Fair Debt Collection Practices Act and California’s Consumer Credit Reporting Act against a debt collector that reported an erroneous debt on our client’s credit report.

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Thrifty-Tel, Inc. v. Bezenek

I ran across one of my favorite cases, Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559 (2006), doing some research recently. Thrifty-Tel extended the common law tort of trespass to chattels to the computer age. The Bezenek’s teenage sons used a computer and a modem to obtain plaintiff’s access codes (which were then used to make long-distance calls without paying):

[T]he evidence supports the verdict on a trespass theory. . . Thrifty-Tel pleaded and proved a claim for trespass to personal property, and the defendants are properly liable under that label. Trespass to chattel, although seldom employed as a tort theory in California (indeed, there is nary a mention of the tort in Witkin’s Summary of California Law), lies where an intentional interference with the possession of personal property has proximately caused injury. . . . Prosser notes trespass to chattel has evolved considerably from its original common law application — concerning the asportation of another’s tangible property — to include even the unauthorized use of personal property: “Its chief importance now,” according to Prosser, “is that there may be recovery … for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.”  . . .

Id. at 1566-67. The Thrifty-Tel court also held that the boys’ use of the access code to make unauthorized calls did constitute fraud, even though no human relied on the boys’ access code:

Plaintiff’s cyber-fraud cause of action also applies a hoary common law theory to computer-age facts. The Bezeneks maintain they cannot be liable for fraud because the computer machinations did not constitute a misrepresentation and there was no evidence of reliance by Thrifty-Tel. Au contraire, asserts plaintiff: Ryan and Gerry’s use of the confidential access code was the legal equivalent of a misrepresentation that they were authorized users of its services, and plaintiff relied to its detriment on that misrepresentation when its computer automatically granted them access to the network. Plaintiff’s point is well taken. . . . True, no human at Thrifty-Tel received and acted on the misrepresentation. But California courts recognize indirect reliance. . . . Moreover, the notion that reliance by an agent may be imputed to the principal, even though the misrepresentation was never communicated to the principal, is ensconced in California law. . . . We view Thrifty-Tel’s computerized network as an agent or legal equivalent.

Id. at 1567, 1568. The fact that the plaintiff’s computer network is treated as the legal equivalent of an agent might have interesting implications in other contexts.

But what struck me re-reading Thrifty-Tel this time was the court’s effort to do equity and make sure the remedy matched the plaintiffs’ cause of action. While the plaintiff telephone company detected the boys’ activities almost immediately, it gave no notice to the boys’ parents until it filed suit at least four months later. As the court put it, “[t]he April Fools’ Day lawsuit provided the Bezeneks’ first notice of their sons’ computer hijinks.” The plaintiff sought damages under its “unauthorized usage” tariff under its California Public Utilities Commission rate schedule, including a $2,880 per day surcharge, a $3,000 “set up fee,” $200 per hour labor fees, as well as attorney fees and costs – totaling $33,720 in damages and nearly $14,000 in attorney fees and costs. The court allowed for the judgment for liability to stand, but remanded the case for the trial court to determine what actual damages the plaintiff suffered before it had an opportunity to mitigate the damages by alerting the Bezeneks to their sons’ activities.

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Significant Victory in Meyer v. Portfolio Recovery

The Ninth Circuit handed down its ruling on Portfolio Recovery’s appeal on October 12, 2012. The ruling represents a significant victory for my client, the class he represents, and consumers generally.


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Litigants Are Not Responsible for the Other Parties’ Document Storage Choices

Several cases remind us that a litigant cannot protect against ordinary discovery by using a record system from which it is inordinately burdensome to retrieve relevant documents. “The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) (citations omitted).

The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of a showing of extraordinary hardship. . . . [A discovering party] should not be forced to bear a burden caused by [the other party’s] choice of electronic storage.

In re Brand Name Prescription Drugs Antitrust Litig., No. 94-897, 1995 WL 360526, at *2 (N.D. Ill. June 15, 1995) (citation omitted).

It is difficult for the [Court] to understand how a [party] could have a record-keeping system such that it cannot read its own records without having to go to the time and expense of photocopying them off the microfilm. However, if that is the system which it uses, then it will have to bear the expense of producing the documents for inspection. . . . A court will not shift the burden of discovery onto the discovering party where the costliness of the discovery procedure involved is entirely a product of the defendant’s record-keeping scheme over which the plaintiff has no control.

Delozier v. First Nat. Bank of Gatlinburg, 109 F.R.D. 161, 164 (E.D. Tenn. 1986)

[A party cannot] absolve itself of [discovery] responsibilit[ies] by alleging the herculean effort which would be necessary to locate [responsive] documents. [A party] may not excuse itself from compliance with Rule 34 . . . by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a [party] whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules.

Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976). Importantly, this line of cases remain effective even after the 2006 amendments to Rule 26(b)(2)(B) and Rule 37(e) (which protect provide safe harbors for documents which are “not reasonably accessible because of undue burden or cost” or documents lost “a result of the routine, good-faith operation of an electronic information system.”).

A court-and more importantly, a litigant-is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties. While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties.

Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., 621 F. Supp. 2d 1173, 1193 (D. Utah 2009).

The fact that a company … chooses to continue to utilize the [an outdated, burdensome] instead of migrating its data to its now-functional archival system should not work to plaintiff’s disadvantage. … [T]he Court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive. … To permit a party to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.

Starbucks Corp. v. ADT Sec. Servs., Inc., No. 08-900, 2009 WL 4730798, *6 (W.D. Wash. Apr. 30, 2009) (citations, punctuation omitted).

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Cautionary Tale About Security in the Cloud

Unknown third parties compromised Wired journalist Mat Honan’s entire personal online profile. Apparently, they started by using his billing address and the last four digits of his credit card to obtain a temporary password for Honan’s Apple ID account from an AppleCare representative. The intruders used the Apple ID as leverage to gain control over his .Me account, his Apple personal computer, and his Gmail and Twitter accounts. Honan concedes he is largely responsible, but urges the need for cloud services to use two-factor authentication. Honan’s story provides a cautionary tale; we talk about data being “in the cloud,” but the data is really stored on someone else’s server – out of a consumer’s direct control.

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Obstruction of Justice in Civil Discovery

18 U.S.C. § 1503 prohibits obstruction of justice. Section 1503’s omnibus or “catch-all” clause is broadly written:

Whoever . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection

18 U.S.C. § 1503(a). The omnibus clause is also broadly applied: obstruction of justice includes non-coercive conduct (like assisting witnesses with the evasion of subpoenas), baseless filings (like a lien on a judge’s property or a notice charging the judge was sedition), and conduct which does not actually succeed in impeding justice. One limitation is that obstruction of justice does require a pending federal proceeding. However, this proceeding can be a civil case: section 1503 “is broad enough to cover the attempted corruption of a prospective witness in a civil action in a Federal District Court.” Roberts v. United States, 239 F.2d 467, 470 (9th Cir. 1956). Cf., e.g., United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998) (refusing to dismiss indictment under section 1503 for corporate executives who destroyed documents while litigating a civil discrimination lawsuit). Given the breadth of section 1503’s omnibus clause and its application to civil cases, section 1503 should have broad application to improper interference with discovery in a federal civil case.

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