The Eleventh Circuit applied Florida law and the preemption provisions of the federal Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq., to reverse the district court’s dismissal of some, but not all, of a plaintiff’s claims against the manufacturer of a hip-replacement device. Mink v. Smith & Nephew, Inc., 2017 WL 2723913…
Category: Consumer Protection
No TCPA Liability for Faxes That Do Not Market a Product
“Unsolicited advertisements” prohibited by the Telephone Consumer Protection Act (TCPA) do not include faxes that merely facilitate the purchase of a product but do not promote the sale of products, the Eleventh Circuit confirmed in Florence Endocrine Clinic, PLLC v. Arriva Medical, LLC, 2017 WL 2415966 (11th Cir. June 5, 2017). The defendant was a…
ADA and RA Protect Hospital Patients’ Ability to Exchange Medically Relevant Information
In Silva v. Baptist Health South Florida, Inc., 2017 WL 1830158 (11th Cir. May 8, 2017), the Eleventh Circuit clarified the standard for liability for ADA and RA effective-communication claims against hospitals. The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to…
Dismissal of VPPA Class Action Against CNN Affirmed, But Spokeo Standing Upheld
The Eleventh Circuit affirmed the dismissal of a putative class action against CNN in a case concerning the CNN app that the plaintiff downloaded to his iPhone. Perry v. Cable News Network, Inc., 2017 WL 1505064 (11th Cir. Apr. 27, 2017). The plaintiff Perry alleged that CNN violated the Video Privacy Protection Act (“VPPA”) by…
Interpretations of RESPA: A foreclosure sale “occurs” when scheduled, and one instance is never a pattern.
In Lage v. Ocwen Loan Servicing LLC, 2016 WL 5864507, Plaintiff-borrowers sued defendant loan servicer, alleging liability under the Real Estate Settlement Procedures Act (“RESPA”) for failure to evaluate the merits of their loss mitigation application within thirty days as required by 12 C.F.R. § 1024.41(c) and for inadequately responding to their notice of error as…
Appeal Dismissed Under Spokeo
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), established that an alleged violation of a statutory right, standing alone, does not necessarily confer Article III standing to bring a claim in federal court. Reaction to the decision continues to evolve. In the latest case from the Eleventh Circuit, the court dismissed an appeal for…
Fair Debt Collection Practices Act Venue for Garnishments Not Limited
Under the Fair Debt Collection Practices Act, a debt collector who sues a consumer on a debt may file the action only where the consumer signed the contract or where the consumer currently resides. The question presented in Ray v. McCullough Payne & Haan, LLC, 2016 WL 5436776 (11th Cir. Sept. 29 2016) was whether…
Civil RICO Class Action Dismissal Affirmed
A civil RICO class action challenging Spirit Airlines’ “Passenger Usage Fee” landed for a second time in the Eleventh Circuit and this time the airline fared better: the court affirmed the dismissal of the amended complaint in a major opinion on RICO pleading standards authored by Judge Stanley Marcus. Ray v. Spirit Airlines, Inc., 2016…
A Furnisher of Credit Data Must Make a Reasonable Investigation in Response to an Indirect Dispute, and Review of “Account-Level Documentation” May Be Required
In Hinkle v. Midland Credit Management, Inc., 2016 WL 3672112 (11th Cir. July 11, 2016), the Eleventh Circuit, addressing an issue of first impression, reversed summary judgment in favor of a credit data furnisher—a “down-the-line” buyer of charged-off debt—which had not requested or reviewed underlying account information after receiving a dispute from a consumer reporting…
Failure of Proof of Online Consumer Arbitration Agreement
Does an arbitration agreement included in a credit cardholder agreement cover claims made under the Fair Debt Collection Practices Act arising from collection of resulting credit card debt? In the Eleventh Circuit’s July 5, 2016 decision in Bazemore v. Jefferson Capital Systems, LLC, 2016 WL 3608961, the district court had held that the collection claim,…