Articles Posted in Consumer Law

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Guided by unambiguous statutory language in the Fair and Accurate Credit Transactions Act of 2003 (FACTA), 15 U.S.C. 1681c(g), that a receipt with a credit card expiration date does not raise a material risk of identity theft, and finding that the bare procedural violation alleged by plaintiff does not present a material risk of harm, the Second Circuit held that allegations in her amended complaint did not satisfy the injury‐in‐fact requirement necessary to establish Article III standing to bring suit. Accordingly, the court affirmed the district court's dismissal of the complaint based on lack of standing. View "Crupar-Weinmann v. Paris Baguette America, Inc." on Justia Law

Posted in: Consumer Law

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Plaintiff filed suit against Lincoln, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The Second Circuit affirmed the district court's grant of summary judgment for Lincoln, holding that plaintiff did introduce sufficient evidence from which a jury could conclude that he revoked his consent, but that the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained‐for exchange. In this case, plaintiff's consent was not provided gratuitously, it was included as an express provision of a contract to lease an automobile from Lincoln. View "Reyes v. Lincoln Automotive Financial Services" on Justia Law

Posted in: Consumer Law, Contracts

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Plaintiff filed a putative class action alleging that grocery stores in New York operated by Whole Foods systematically overstated the weights of pre‐packaged food products and overcharged customers as a result.  The district court dismissed the complaint based on plaintiff's lack of Article III standing. The Second Circuit vacated and remanded, holding that the district court did not draw all reasonable inferences in plaintiff's favor. In this case, plaintiff plausibly alleged a nontrivial economic injury sufficient to support standing. According to the DCA's investigation, Whole Foods packages of cheese and cupcakes were systematically and routinely mislabeled and overpriced, and plaintiff regularly purchased Whole Foods packages of cheese and cupcakes throughout the relevant period. Therefore, the complaint satisfied the low threshold required to plead injury in fact. View "John v. Whole Foods Market Group" on Justia Law

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The Second Circuit reversed and remanded the district court's dismissal of plaintiff's lemon law suit based on lack of subject matter jurisdiction. Plaintiff filed suit under the Magnuson‐Moss Warranty—Federal Trade Commission Act (MMWA), 15 U.S.C. 2301 et seq., and New York State law, contending that the "certified pre-owned" BMW she purchased from defendant was incurably defective. The Second Circuit held that the value of plaintiff's MMWA claims, as pled, exceeded the $50,000 minimum amount in controversy requirement. In this case, although plaintiff could neither add punitive damages under the MMWA nor rely on the value of her state law claims to meet the jurisdictional threshold, plaintiff's rescission claim supplied a sufficient basis for subject matter jurisdiction. View "Pyskaty v. Wide World of Cars, LLC" on Justia Law

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Plaintiff, individually and on behalf of others similarly situated, filed suit against defendant, alleging violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692 et seq. Plaintiff alleged that defendant failed to provide the "amount of the debt" within five days after an initial communication with a consumer in connection with the collection of a debt, as required by section 1692g. The court declined to hold that a mortgage foreclosure complaint was an initial communication with a consumer in connection with the collection debt. In this case, the court concluded that neither the Foreclosure Complaint nor the July Letter were initial communications giving rise to the requirements of section 1692g(a). The court held, however, that the August Letter was an initial communication in connection with the collection of a debt, and that the Payoff Statement attached to the August Letter did not adequately state the amount of the debt. The Payoff Statement included a "Total Amount Due," but that amount may have included unspecified "fees, costs, additional payments, and/or escrow disbursements" that were not yet due at the time the statement was issued. The court explained that a statement was incomplete where, as here, it omits information allowing the least sophisticated consumer to determine the minimum amount she owes at the time of the notice, what she will need to pay to resolve the debt at any given moment in the future, and an explanation of any fees and interest that will cause the balance to increase. Accordingly, the court vacated and remanded for further proceedings. View "Carlin v. Davidson Fink LLP" on Justia Law

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Plaintiff filed suit against ZocDoc, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. Plaintiff's suit stemmed from two unsolicited telecopies (faxes), it allegedly received from ZocDoc. ZocDoc made a settlement offer to plaintiff as to its individual claims pursuant to Federal Rule of Civil Procedure 68, but plaintiff rejected the offer. The district court subsequently granted ZocDoc's motion to dismiss the action for lack of subject matter jurisdiction based on the ground that its offer afforded plaintiff complete relief, thus mooting the action. The court concluded, however, that the action was not and is not moot. The court held that an unaccepted Rule 68 offer of judgment was, regardless of its terms, a legal nullity. In this case, the district court entered a judgment that should not have been entered in the first place, and ZocDoc then more than one year later deposited an amount in satisfaction of that errant judgment in an account payable to plaintiff. Therefore, the court vacated and remanded. View "Radha Geismann, M.D., P.C. v. ZocDoc" on Justia Law

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Physicians filed suit against Boehringer, a pharmaceutical company, alleging violations of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005 (TCPA), 47 U.S.C. 227. Specifically, Physicians alleged that Boehringer sent an unsolicited advertisement in violation of the TCPA - a fax invitation for a free dinner meeting to discuss ailments relating to Physicians' business. The district court dismissed for failure to state a claim, holding that no facts were pled that plausibly showed that the fax had a commercial purpose. The court held that, while a fax must have a commercial purpose to be an "unsolicited advertisement," the district court improperly dismissed Physicians' complaint where Physicians' allegation is sufficient to state a claim. Accordingly, the court vacated and remanded. View "Physicians Healthsource v. Boehringer Ingelheim Pharmaceuticals" on Justia Law

Posted in: Consumer Law

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Plaintiff filed a putative class action against Comenity to recover statutory damages for violations of the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq. The district court concluded that plaintiff failed, as a matter of law, to demonstrate that four billing-rights disclosures made to her by Comenity in connection with plaintiff's opening of a credit card account violated the TILA. The court concluded that plaintiff failed to demonstrate the concrete injury required for standing to pursue two of her disclosure challenges and thus dismissed those two claims for lack of jurisdiction. The court concluded that, although plaintiff established standing to pursue the two remaining claims, those challenges fail as a matter of law. In this case, Comenity’s notice that certain TILA protections applied only to unsatisfactory credit card purchases that were not paid in full is substantially similar to Model Form G–3(A) and, therefore, cannot as a matter of law demonstrate a violation of 15 U.S.C. 1637(a)(7). Furthermore, because neither the TILA nor its implementing regulations require unsatisfactory purchases to be reported in writing, Comenity’s alleged failure to disclose such a requirement cannot support a section 1637(a)(7) claim. Accordingly, the court affirmed the district court's grant of summary judgment to Comenity on those TILA claims. The court also affirmed the district court's denial of her cross-motion for class certification as moot. View "Strubel v. Comenity Bank" on Justia Law

Posted in: Banking, Consumer Law

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After plaintiff purchased a "1 Day Diet" weight loss product containing sibutramine, a controlled substance that had been removed from the market in October 2010, on Amazon.com, he filed suit alleging claims under the Consumer Product Safety Act (CPSA), 15 U.S.C. 2051 et seq., and state law. The district court dismissed the complaint based on the ground that the parties are bound by the mandatory arbitration provision in Amazon's Conditions of Use. The court concluded that the district court erred in concluding that plaintiff failed to state a claim under Rule 12(b)(6) and held that Amazon failed to show that plaintiff was on notice and agreed to mandatory arbitration as a matter of law. The court agreed with the district court that plaintiff did not establish a likelihood of future or continuing harm where, even assuming his past purchase of the product resulted in injury and that he may continue to suffer consequences as a result, he failed to show that he is likely subjected to further sales by Amazon of products containing sibutramine. Finally, the court concluded that plaintiff's remaining arguments are meritless. Accordingly, the court affirmed the district courtʹs denial of plaintiffʹs motion for a preliminary injunction, but vacated the dismissal for failure to state a claim and remanded for further proceedings. View "Nicosia v. Amazon.com, Inc." on Justia Law

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Plaintiffs filed suit against defendant under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, alleging that they received collection notices that were misleading because they stated the “current balance,” but did not disclose that the balance might increase due to interest and fees. The court held that Section 1692e requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees. Therefore, the court vacated the district court's dismissal of this claim and remanded for further proceedings. The court affirmed the district court's dismissal of plaintiffs' other claims in a summary order issued simultaneously with this opinion. View "Avila v. Riexinger & Assoc., LLC" on Justia Law

Posted in: Consumer Law