TCPA Defendant Can’t Compel Arbitration Based on Provision in “Terms of Use” Published on Website

July 10, 2016 By Leave a Comment

Yesterday, a California federal judge ruled that Dick’s Sporting Goods Inc. (DSG) can’t compel arbitration of a consumer’s proposed class action alleging violations of the Telephone Consumer Protection Act (TCPA) because the consumer wasn’t aware of an arbitration provision published in the DSG’s website’s “Terms of Use”.

The case is Nghiem v. Dick’s Sporting Goods, Inc. (Case No. 8:16-cv-00097, United States District Court, Central District of California).

Background

Plaintiff Phillip Nghiem brought this action against Defendants DSG and Zeta Interactive Corporation (Zeta) for violations of the TCPA. The Complaint sought statutory damages, treble damages, attorney’s fees, and an order certifying a class.

The Complaint alleged that DSG administers a marketing program centered on what they call “mobile alerts”—text messages sent to subscribers. Consumers can sign up for mobile alerts on DSG’s website or by sending a text message with the word “JOIN” to a number associated with DSG, called a “short code.”

On May 4, 2015, Plaintiff enrolled in DSG’s mobile alert program by texting the word “JOIN” to DSG’s short code. Thereafter, on December 6, 2015, Plaintiff texted the word “Stop” to that same short code, indicating that he no longer wished to receive mobile alerts from DSG. DSG sent Plaintiff a text message indicating that he had unsubscribed and would no longer receive mobile alerts.

But, the Complaint alleges that DSG continued to send Plaintiff text messages, including on at least eight particular occasions between December 11, 2015 and January 22, 2016.

On June 13, 2016 DSG and Zeta filed a motion to compel arbitration arguing that Plaintiff was on notice of the Terms of Use on DSG’s website, which contain an arbitration agreement Defendants say cover the TCPA claims at issue.

Plaintiff insists that he was unaware of the arbitration agreement and had no reason to know of it. And even if he did agree to an arbitration agreement, Plaintiff says, the agreement did not cover TCPA claims, and the agreement cannot be enforced by third parties like Zeta.

The Honorable Cormac J. Carney, United States District Court Judge, denied Defendant’s motion.  The order denying the Defendant’s motion to compel arbitration can be found here.

Judge Carney wrote:

“The arbitration agreement at issue here is contained within the Terms of Use that govern visitors to DSG’s website. The Terms of Use constitute what is known as a“browsewrap agreement.” As the Ninth Circuit has explained,

Contracts formed on the Internet come primarily in two flavors: “clickwrap” (or “click-through”) agreements, in which website users are required to click on an “agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.  Browsewrap agreements do not require the user to manifest assent to the terms and conditions [of a website] expressly. Instead, the agreements purport to bind users simply by their existence, no matter whether the user has actually viewed them. Because of this lack of assent on the part of consumers, courts enforce browsewrap agreements with “reluctance,” and will generally only do so when a consumer has “actual or constructive knowledge of a website’s terms and conditions.”

Defendants argued that Plaintiff both had actual knowledge of, and constructive knowledge of, DSG’s Terms of Use.

On the issue of “actual knowledge” of the terms, Defendants claim that the Plaintiff is a lawyer whose former firm routinely handles TCPA cases, including TCPA cases against DSG and its affiliates. As such, Defendants say, Plaintiff can be expected to have been familiar with DSG’s arbitration agreement and have been fully aware of it when he enrolled in the mobile alerts program.  Defendants also provided evidence that Plaintiff enrolled in a number of text messaging programs in a short period of time – “fishing” for a TCPA lawsuit.

For his part, Plaintiff stated that he “never worked on any matter, including any TCPA matter, involving DSG,” and that while at his former firm, he “did not litigate as an attorney the enforceability of an arbitration clause in [any type of] matter, TCPA or otherwise.”

Judge Carney ruled:

“These facts are insufficient to permit the Court to infer actual knowledge of the Terms of Use on Plaintiff’s part. To be sure, as an attorney who sometimes litigates TCPA claims, Plaintiff surely has a greater level of understanding of the significance and prevalence of arbitration agreements. And Plaintiff did sign up for a significant number of mobile alerts programs within a few months. Nonetheless, actual knowledge is not something to be “safely assumed,” as Defendants would have it, based on a plaintiff’s occupation. Instead, Defendants were required to put forth “evidence” that Plaintiff had “actual knowledge of the agreement” at issue.”

On the issue of “constructive knowledge” of the terms and conditions Judge Carney wrote:

“Whether a consumer is on such notice “depends on the design and content of the website and the agreement’s webpage. The “conspicuousness and placement” of a hyperlink to a website’s terms of use, any “other notices given to users” of those terms, and the “website’s general design” should all be consulted when determining whether a user is on inquiry notice of terms of use containing an arbitration agreement. When a hyperlink to a website’s terms is “buried at the bottom of the page or tucked away in obscure corners of the website,” users cannot be said to be on constructive notice.

Materials provided to the Court indicate that the hyperlink to DSG’s Terms of Use appears “in the website footer” of DSG’s home page, as well as its page containing information about its mobile app. The link appears in a grouping of 27 other hyperlinks, arranged in four columns, that cover topics as diverse as “Careers,” “Gift Cards,” “Commercials & Films,” and “Find a Store.” “Terms of Use” is sandwiched between “Only at DICK’s” and “California Disclosures,” near the bottom of the third column of links. (Id.) This placement is not conspicuous enough, alone, to put consumers on inquiry notice of the Terms of Use.”

As the Court has concluded that Plaintiff neither had actual knowledge of the Terms of Use, nor was on inquiry notice of those terms, he cannot be bound by the arbitration clause contained in DSG’s browsewrap agreement. Defendants’ motion to compel arbitration is therefore DENIED.”

insideARM Perspective

“Terms and Conditions” buried in a robust website are not the best way to have an enforceable arbitration provision, even if the Plaintiff is an attorney with prior TCPA experience and even if you are arguing that the attorney is “fishing” for TCPA cases.

Relying on any arbitration provision is going to be even more difficult or altogether impossible if the Consumer Financial Protection Bureau (CFPB) has their way.  See this article by Jane Luxton from the Clark Hill law firm insideARM published on May 9, 2016.

 

 

TCPA Defendant Can’t Compel Arbitration Based on Provision in “Terms of Use” Published on Website
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Citizens Bank to Pay Over $4.5 Million to Settle TCPA Suit

July 10, 2016 By Leave a Comment

Pursuant to a California federal judge’s preliminary approval order filed yesterday, Citizens Bank will pay over $4.5 million to settle a class action with more than one million members who claim it violated the Telephone Consumer Protection Act (TCPA) by allegedly calling consumers’ cellphones without their permission using an automated dialing system.

The case is Sanders, et. al v. RBS Citizens, N.A. (Case No. 3:13-cv-03136, United States District Court, Southern District of California). A complete copy of the Order Granting Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class may be found here.

Background

On December 20, 2013, Plaintiff Linda Sanders (Plaintiff) commenced this class action against Defendant RBS Citizens, N.A. (“Defendant” or “Citizens”) seeking relief for violations of the TCPA.

Plaintiff alleged she was harmed when she received a number of unsolicited phone calls to her cellular telephone made by Defendant. Defendant’s telephone calls were allegedly placed using an “automatic telephone dialing system” (ATDS), as defined by the TCPA, and using an “artificial or prerecorded voice” system in further violation of TCPA. Plaintiff states she did not consent to these calls. Plaintiff represents the Class Members, claiming they were similarly harmed by receiving unsolicited phone calls from Defendant through the use of an ATDS and artificial or prerecorded voice in violation of the TCPA.

Defendant denied, and continues to deny, calling Plaintiff or other putative class members in violation of the TCPA and without their consent.

The parties vigorously litigated the matter. Court records show over one hundred separate documents or pleadings filed in the two-and-one-half years since the case was filed. Prior to the settlement negotiations and mediation, the parties engaged in discovery requests and exchanges, litigating several discovery disputes. Plaintiff made a motion to compel discovery, seeking a dial list of calls made by Defendant, or by third-party vendors on Defendant’s behalf, and all documents relating to express consent. Class Counsel served Defendant with 133 document requests, issued twenty-one non-party subpoenas, and took a 30(b)(6) deposition of Defendant’s witness to confirm the class size.

The Proposed Settlement

The two parties reached a proposed settlement that will apply to all class members (Class Members) of this matter. The Settlement applies to a proposed Settlement Class that is defined as follows:

All persons in the United States who received a call on their cellular telephone from Citizens, or from any third parties calling on a Citizens account, made with an alleged automatic telephone dialing system (“ATDS”) and/or an artificial or pre-recorded voice from December 20, 2009 through July 13, 2015, whose telephone numbers are identified in the Class List. The parties estimate this Settlement Class consists of 1,013,615 class members.

Citizens agreed to establish a Settlement Fund in the amount of $4,551,267.50 to pay for awards to Settlement Class Members, settlement administration expenses, and any reasonable attorneys’ fees and costs approved and awarded by the Court.

As compensation for its services and to recover its expenses, Class Counsel will seek from the Court an award of attorneys’ fees of no more than 25% of the Settlement Fund. Class Counsel estimates that the attorneys’ fees will be up to $1,137,816.87.  Also, Class Counsel is seeking actual litigation costs of no more than $25,000.

Plaintiff, as the class representative, will be paid up to $5,000 from the Settlement Fund as an incentive payment.

In addition to these expenses, the parties anticipate $553,027 in claims administration costs if 1% of the Class submit claims, and $628,461 if 5% of the Class submit claims.

Assuming the anticipated expenses are incurred and the claims participation rate is correct, a 1% claim rate would result in each Class Member receiving approximately $283.72, and a 5% claim rate would result in each Class Member receiving approximately $56.75.

The Court will hold a Fairness Hearing on Monday, January 23, 2017, at 10:30 a.m., in the Courtroom of the Honorable Cynthia Bashant, United States District Court for the Southern District of California, Courtroom 4B (4th Floor – Schwartz), 221 West Broadway, San Diego, CA 92101, for the following purposes:

  1. finally determining whether the Settlement Class meets all applicable requirements of Rule 23 of the Federal Rules of Civil Procedure, and thus, whether the claims of the Settlement Class should be certified for purposes of effectuating the Settlement; determining whether the proposed Settlement of the action on the terms and conditions provided for in the Settlement Agreement is fair, reasonable, and adequate and should be approved by the Court;
  2. considering any motion of Class Counsel for an award of attorneys’ fees and costs;
  3. considering the motion of the Plaintiff for a service award, if any;
  4. considering whether the Court should enter the [Proposed] Final Judgment and Order of Dismissal with Prejudice;
  5. considering whether the releases by the Settlement Class Members as set forth in the Settlement Agreement should be provided; and
  6. ruling upon such other matters as the Court may deem just and appropriate.

insideARM Perspective

insideARM will continue to report on TCPA settlements as we learn of them. There is no unique insideARM perspective to add to this particular case. The settlement speaks for itself.

 

Citizens Bank to Pay Over $4.5 Million to Settle TCPA Suit
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The Kind of Debt Collection Story That Never Gets Published

July 10, 2016 By Leave a Comment

Stephanie Eidelman

Stephanie Eidelman

Among the many alerts I receive each morning, I noticed this blog today on The Huffington Post. It’s titled Debt Collector Madness, and Owning the Infinite, Creative Power of Thought.

In spite of the title, it’s really more about spirituality and controlling one’s thoughts. However, I noticed that it’s also a tale of an unremarkable, yet routine, communication with a debt collector. The kind that almost never gets told.

In this case, the author, a California resident, describes how she recently received a letter in the mail from a collection agency saying that she owes thousands in back taxes to the State of Colorado. She is sure it’s a mistake, because she has never lived or worked in Colorado. Yet as one might imagine, she also panicked a little.

What does she do? She picks up the phone, calls the agency, and explains the mistake. The collector asks her some clarifying questions, agrees that it seems there was an error, and gives her a number to call the Colorado Department of Revenue to clear it up.

There. She didn’t ignore the letter or throw it away. She called. They talked. It got handled.

While it’s true that things like this occasionally are scams, this is the way many thousands of communications go – or could go – with debt collection agencies. It’s just never reported. And often, they are never given the chance, because people are afraid to call.

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CFPB Issues Supervisory Highlights Report, Includes Warnings for Creditors, Debt Buyers, Collection Agencies, and Law Firms

July 10, 2016 By Leave a Comment

The Consumer Financial Protection Bureau (CFPB) is highlighting recent enforcement activity with the release of its latest Supervisory Highlights report. This report focuses on activities during the first quarter of 2016, showcasing supervisory actions that the Bureau says resulted in the remediation of approximately $30 million to more than 250,000 consumers.

You can read the full Highlights Report here.

This 12th edition of the CFPB’s Supervisory Highlights, generally covers activities completed between January 2016 and April 2016. Among findings that are particularly relevant to companies in the ARM industry:

  • Selling ineligible accounts to debt sellers: CFPB examiners found that in at least one instance, a debt seller sold thousands of dollars in debt accounts improperly due to widespread coding errors. In that case, the coding errors led to the failure to note that the accounts were in bankruptcy, that the debt was fraudulent, or that the accounts had already been settled. Such practices were cited by the CFPB as unfair under the Dodd-Frank Act.
  • Misleading consumers about debt repayment options: The CFPB found that some debt collectors convinced consumers that paying a down payment was necessary to repay a debt, when there was no such requirement. The Bureau also found that some collectors told consumers they had to pay through their checking account, when that was not actually required. Such practices are considered deceptive under the Dodd-Frank Act.
  • Failure to provide adverse action notices: Institutions were found by the CFPB to have taken adverse actions, such as denial of credit, without making the required disclosures to consumers. Under the Fair Credit Reporting Act, consumers must be notified of any adverse action based on information in a consumer report, along with information about the consumer reporting agency that produced the report. CFPB examiners found these violations were generally caused by inadequate policies and procedures and training.

The Supervisory Highlights report does not refer to specific institutions, except in reference to a public enforcement action against an institution. The CFPB says that where examiners find violations of law or other significant problems or weaknesses, they alert the institutions to their concerns and outline necessary remedial measures. When appropriate, they then open investigations for potential enforcement actions. The CFPB often finds problems during supervisory examinations that are resolved without an enforcement action.

insideARM Perspective

Although the debt collection rulemaking process has been on-going for nearly three years and an official Notice of Proposed Rulemaking has yet to be released, CFPB officials have repeatedly suggested that their Supervisory and Enforcement activities should be closely watched for clues about their priorities and where future rules are likely to focus.

In the case of this latest report, creditors, debt buyers, collection agencies, and law firms should examine their policies and procedures to make sure they are not violating the CFPB’s interpretations of the law in Q1 2016. In particular, creditors and debt buyers should take a hard look at what and how accounts are sold. Collection agencies and Law firms working for debt buyers should also consider some due diligence on their client’s purchases. Finally, anyone collecting on any type of account should closely review how debt repayment options are communicated to consumers.

As far as the CFPB’s rulemaking process is concerned, it does look like things will move to the next phase this summer. insideARM recently learned from multiple sources that the Bureau has scheduled the next step in debt collection rulemaking, the Small Business Regulatory Fairness Enforcement Act (SBREFA) hearing, for the week of August 22, 2016. Learn more about how the SBREFA panel works here.

 

Editor’s Note: For an in-depth look at the subject of CFPB enforcement actions, be sure to check out insideARM’s report The CFPB’s Consent Orders Regulating the ARM Industry, available now. The report is the first of its kind designed to help the debt collection industry comply with the CFPB’s consent orders. It includes every relevant CFPB consent order – organized, analyzed, and summarized. You can purchase an updated version of the report every quarter, or join the Compliance Professionals Forum and get every update, as well as a wealth of other practical resources, for free.

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Court Determines Consumer Did Not Prove Revocation of Consent in TCPA Case

July 10, 2016 By Leave a Comment

On June 20, 2016 the U.S. District Court for the Eastern District of New York granted a creditor’s motion for summary judgment and dismissed a Telephone Consumer Protection Act (TCPA) claim because the plaintiff had provided prior express consent to be contacted on his cellular telephone when he entered into a contract with the creditor, AND did not provide sufficient proof that the prior consent was revoked.

The case, is Reyes, Jr. v. Lincoln Automotive Financial Services, Case No. 15-0560, (Eastern District of New York, June 20, 2016).

Background

On June 29, 2012, Plaintiff, Alberto Reyes, Jr. (Reyes), leased a new 2012 Lincoln MKZ luxury sedan through Defendant Ford Motor Credit Company LLC (Ford Credit) Note: Ford Credit was named in the complaint as Lincoln Automotive Financial Services. In connection with this transaction, Plaintiff executed a written New York Lease Contract dated June 29, 2012.

As part of the Lease Contract, Plaintiff expressly consented to receive telephone calls from Ford Credit, “including but not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails, and/or automatic telephone dialing systems.”  Plaintiff further consented to Ford Credit using “any telephone number” provided by Plaintiff in order to contact him, “including a number for a cellular phone or other wireless device, regardless of whether [Plaintiff] incurs charges as a result.”

Plaintiff failed to make several payments under the Lease Contract when due, thereby defaulting on his obligation. Ford Credit then began telephoning Plaintiff at the phone number provided by Plaintiff in the Lease Contract. Plaintiff failed to cure his default and Ford Credit repossessed the vehicle.

Plaintiff filed this lawsuit on February 6, 2015, alleging violations of both the TCPA and the Fair Debt Collection Practices Act (FDCPA). Plaintiff requested damages in the amount of $720,000. After Discovery, Ford Credit filed a motion for Summary Judgment.

Editor’s note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The Honorable Leonard D. Wexler authored the Memorandum and Order granting Summary Judgment in favor of the Defendant. First, Judge Wexler determined that Plaintiff had abandoned his FDCPA claim,

“Defendant has moved for summary judgment with respect to Plaintiff’s FDCPA claim on the grounds that the statute is inapplicable to Ford Credit since it is a creditor, not a debt collector. Plaintiff failed to offer any argument in opposition to Defendant’s contention and, in fact, there is no mention of his FDCPA claim whatsoever in his opposition to the within motion. Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.”

Judge Wexler next moved to discussion of the TCPA claim.  Wexler wrote:

“It is undisputed that Plaintiff provided express consent to be contacted by Ford Credit, in accordance with the TCPA, when he voluntarily provided his cellular telephone number on the Lease Contract. The issue, however, is whether or not Plaintiff subsequently revoked that consent.

Plaintiff argues that although he did provide prior express consent to be contacted on his cellular telephone, he revoked that consent by letter dated June 14, 2013. However, a review of the letter (the Letter) Plaintiff purports to have sent Defendant reveals that it is merely addressed to “Lincoln Credit,” with nothing more, and it is not signed by Plaintiff. During his deposition, Plaintiff testified that the Letter is a form letter, that he does not recall the address that he mailed the Letter to, and that he has no record that the Letter was actually sent to Defendant. The foregoing is insufficient to demonstrate that Plaintiff revoked his consent to receive telephone calls from Ford Credit on his cellular telephone.

For the foregoing reasons, Defendant’s motion for summary judgment is granted in its entirety. Plaintiffs Complaint is dismissed and judgment as a matter of law is granted in favor of Defendant.”

insideARM Perspective

This is a positive case for the ARM industry.  First, the court determined the language in the Lease Contract was sufficient to grant consent for the Plaintiff to be called on his cell phone. Second, the court deemed there was no proof presented of revocation of that consent.

insideARM believes that the issue of “revocation of consent” is going to be a major battleground in TCPA cases going forward. Credit grantors have modified agreements with consumers to include much better language regarding “consent” to call cell phones. As a result, consumers and their attorneys are going to need to argue that “consent” was revoked.  In this case the court put the burden of proving revocation of the consent on the consumer and was unimpressed by a form letter and no evidence that the letter was sent and what address it was sent to.

 

 

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Plaintiff Counsel Threatened With Sanctions Responds to Judge in Experian “Meaningful Review” Credit Dispute Case

July 3, 2016 By Leave a Comment

Last week insideARM reported on a case where New Jersey Judge Renée Marie Bumb dismissed what she termed a “frivolous” lawsuit against Experian in the recent, twinned cases Glenn Williams v. Experian and Lorissa Williams v. Experian (United States District Court for the District of New Jersey, Case Nos. 14-8115 and 14-8116).

The case was interesting for the ARM industry because the Judge discussed “meaningful review or investigation” by an attorney prior to filing a complaint. The “meaningful review” standard had been used in lawsuits and regulatory actions involving collection attorneys.

As part of the Opinion dismissing the lawsuits Judge Bumb ordered plaintiff’s counsel to show cause why he should not be sanctioned.

On Tuesday, June 28th, plaintiff’s attorney, Brent F. Fullings, filed his Response to Order to Show Cause Why Plaintiff’s Counsel Should Not Be Sanctioned.

As noted in our article last week, the case involves credit disputes filed by both Williamses against Experian, which had determined and reported that each Plaintiff had filed two chapter 13 bankruptcies in the District Court of NJ. Both plaintiffs had disputed the bankruptcies, prompting Experian to reinvestigate. Experian sent an Automated Consumer Dispute Verification (ACDV) to Lexis Nexis, which is Experian’s public records vendor. Lexis Nexis subsequently confirmed the accuracy of the bankruptcy attributions. Experian then informed the plaintiffs of the dispute process results.

In the 17-page response (total filing with Exhibits was 165 pages) Mr. Fullings says he believes his clients were victims of a scam perpetuated by an individual named Andrew Bartok (who had been sentenced in 2013 to 22 years in prison and $2,000,000 in restitution for mail fraud and filing fraudulent bankruptcies).

Fullings tells Judge Bum that his conduct in the case does not meet the legal standards for sanctions under Rule 11(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 11(b)

Editor’s Note: Rule 11(b) of the Federal Rules of Civil Procedure provides,

“By presenting to the court a pleading, written motion, or other paper– whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

In the filing, Fullings details his pre-filing inquiries of his client, and his research of the facts and circumstances told to him by his clients. The Plaintiffs had told Mr. Fullings that they had “worked with” a man named “Andrew Bartok,” whom they had paid monthly for his services in an attempt to avoid foreclosure. Following substantial research on “Andrew Bartok,” Fullings found Bartok’s indictment for, among other things, “defraud[ing] … clients … by use of the United States Bankruptcy courts.”

Fullings noted that the Bartok indictment read, “From in or about 2000 through in or about February 2011, … Andrew Bartok … knowingly and willfully, having devised and intending to devise a scheme and artifice to defraud and for the purpose of executing and concealing such a scheme and artifice and attempting to do so, filed a petition under Title 11, filed a document in a proceeding under Title 11, and made a false and fraudulent representation, claim, and promise concerning and in relation to a proceeding under Title 11 at any time before or after the filing of the petition, and in relation to a proceeding falsely asserted to be pending under such title, to wit, Bartok filed with bankruptcy courts: (i) fraudulent voluntary bankruptcy petitions and (ii) fraudulent letters and motions.” Fullings also noted that the Plaintiff’s bankruptcy filings were within this time period. After some additional research, Fullings had contact with other suspected victims of Andrew Bartok to learn more about the illegal actions of Mr. Bartok and to compare the Plaintiffs’ allegations with that of others similarly affected.

Fullings argues that after numerous conversations with his clients, a review of Andrew Bartok’s method of operation and subsequent indictment, a review of Plaintiffs’ personal identification, and the credit reporting agencies’ lack of reasonable investigation into allegations which clearly have impacted many consumers, he strongly believed that a violation of the Fair Credit Reporting Act and applicable statutes existed and therefore proceeded accordingly.

 

 

 

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Wells Fargo Will Pay $16.3 Million to End TCPA Suit

July 3, 2016 By Leave a Comment

According to filings yesterday in Georgia federal court, Wells Fargo Bank, N.A. (Wells) will pay approximately $16.3 million to end a proposed class action alleging it illegally used an Automatic Telephone Dialing System (ATDS) to call customers’ cellphones without their consent.

Originally filed on April 14, 2015, the case is Markos v. Well Fargo Bank, N.A. (United States District Court for the Northern District of Georgia, Case No. 1:15-CV-01156).

The documents filed yesterday were the Unopposed Motion for Preliminary Approval of a Class Action Settlement and the Memorandum in Support of the Motion.

The Plaintiffs are asking for preliminary approval of a nationwide class action settlement reached with Wells. The original lawsuit alleged that Wells had called Plaintiffs and Settlement Class Members on their cellular telephones through the use of an ATDS or by using an artificial or prerecorded voice without Plaintiffs’ or Class Members’ prior express consent, in violation of the Telephone Consumer Protection Act (TCPA). The calls at issue were all non-emergency, debt-collection calls and texts made in connection with Home Equity Loans and Residential Mortgage Loans.

The settlement was reached only after good faith, contentious, arm’s-length negotiations, with the assistance of an experienced and well-respected private mediator, Hunter R. Hughes.

Wells will pay a non-reversionary cash sum of approximately $16,319,000, to be distributed (after deductions for cost of notice, claims administration, and Court-awarded attorneys’ fees and costs) on a pro rata basis to the Class Members who file qualified claims. Based upon the size of the fund, the number of class members, and Class Counsel’s experience with over a dozen similar large settlements, the expected per-class-member cash award, while dependent upon the number of claims, may be in the range of $25 to $75.

The proposed Settlement Class is defined as,

All users or subscribers to a wireless or cellular service within the United States who used or subscribed to a phone number to which Wells made or initiated one or more Calls during the Class Period using any automated dialing technology or artificial or prerecorded voice technology, according to Wells available records, and who are within Subclass One and/or Two.

Subclass One consists of “persons who used or subscribed to a cellular phone number to which Wells Fargo made or initiated a Call or Calls in connection with a Residential Mortgage Loan.”

Subclass Two consists of “persons who used or subscribed to a cellular phone number to which Wells Fargo made or initiated a Call or Calls in connection with a Home Equity Loan.”

A person who is a member of both Subclasses is eligible to make two claims on the Settlement Fund.

The parties’ good faith estimate of the number of Class Members (the Preliminary Class Size) is 3,296,755.

The three Class Representatives will ask the Court to award them service awards for the time and effort they have personally invested in the case, including declining offers of judgment pursuant to Rule of Civil Procedure 68. Wells agrees not to object to such incentive payments to be paid to Davis, Markos, and Page from the Settlement Fund provided that the payments do not exceed $60,000 in the aggregate or $20,000 for each Class Representative, subject to Court approval.

Class Counsel will apply to the Court for an award of attorneys’ fees and costs of 30% of the Settlement Fund. However, the Settlement is not dependent or conditioned upon the Court’s approval of Plaintiffs’ requests for fees or costs, or an award of any specific amount.

insideARM Perspective

There isn’t much perspective to be added here. The TCPA insanity continues. The settlement dollars keep coming.

This case was originally filed 14 months ago. For such a large settlement, that’s a short period of time. Wells contends they had consent. Plaintiffs contend they didn’t. Unfortunately, while it seems consent ought to be a black & white issue, it is not. insideARM does not have access to the discovery documents so it is impossible to opine on that issue.

Wells also raised the issue of standing (Spokeo argument) and whether this case was appropriate for class certification.

As with any settlement, neither side got exactly what they wanted. Wells is paying over $16 million to put this matter behind them in a case where their potential exposure was much greater. Class Counsel is agreeing to a settlement that is much lower than a maximum TCPA award they might have obtained.

Plaintiff’s attorneys are seeking 30% of the settlement fund (or approximately $4.8 Million) for their efforts on the matter while class member awards will receive be between $25 and $75. The Class Representatives could pocket $20,000 for “time and effort they have personally invested in the case.”

When will it end? Will it end?

Wells Fargo Will Pay $16.3 Million to End TCPA Suit
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Collection Associates Rebrands Company, Unveils New Website and Logo

July 3, 2016 By Leave a Comment

rmp_logo_rgbGREENSBURG, Ind. – Collection Associates (CAI) , a Greensburg-based accounts receivable collection service that offers creditors a number of proven solutions to help achieve their recovery goals, rebranded as of June 1, 2016.

CAI has been serving clients throughout the United States since 1985, and has become a top employer in the Greensburg area. In 2007, the organization recapitalized under the leadership team led by CEO Mark Schabel and formed Receivables Management Partners (RMP). With the Greensburg location as the company’s headquarters over the last nine years, RMP has grown into eight more locations in Indiana, Michigan, Illinois, Pennsylvania and Texas with over 520 dedicated employees sharing best practices, industry insight, and innovative services, enabling the organization to serve new clients and their patients nationwide.

Effective as of June 1, 2016, CAI officially rebranded as RMP. It continues to provide the same great services and to honor the same commitment to the community that it always has. Mark Schabel, CEO of RMP, said this of the rebrand: “Unifying our brand under the RMP name will allow the Greensburg office to grow as we are able to service clients on a national basis more effectively. We believe this change will continue to allow us to provide more high quality career opportunities for the people of Decatur County and the surrounding communities. We have grown our employee base in the Greensburg office from 41 employees in 2007 to 100 in 2016 and plan to continue that path of growth.”

“We are excited for the rebranding and know the local feel of our Greensburg office will continue to be a vital piece of our growing culture for all of RMP,” said Jessica Gillam, Client Services Manager at CAI.

The mission at RMP is to provide the highest quality accounts receivables management services through an industry best standard of professionalism while preserving the dignity and integrity of all members of our community. RMP represents the very best of CAI, and through unifying under one name, RMP can more effectively position itself as an industry leader. CAI has been operating as part of RMP for years, so the majority of CAI’s operations will remain the same. The changes created through the rebrand will consist of the following:

Branding – As CAI officially becomes RMP, it will take on RMP’s new look as part of the campaign to unify the RMP family of companies, to increase awareness, and to broaden its reach.

Logo – As shown above, the first component of the new brand identity is the transition to the RMP company name and logo.

Website – The newly redesigned ReceiveMoreRMP.com website incorporates the look of the new RMP brand identity and serves as an informational resource that incorporates company information as well as stories that highlight how RMP and its employees are working every day to make the world a better place.

Marketing – RMP is taking a new marketing approach inclusive of an increased digital presence, speaking engagements, and industry outreach.

Despite these changes, the CAI office will remain in its current location, and there are no plans to make any staffing or service changes as a result of the rebrand. This new RMP location will continue its involvement in the Greensburg community and its commitment to providing the highest quality services to its clients across the country. “The strength of RMP will continue to be what it has always been when we were known as CAI. The quality of our leadership team and all of our team members at our Greensburg office is what sets us apart and allows us to continue to serve our clients and the community with excellence. I could not be more proud of our team and the kind of people we have in Greensburg,” said Schabel.

For more information about RMP, please visit us at ReceiveMoreRMP.com.

About RMP

Receivables Management Partners (RMP) is a financial services firm that enables leading healthcare providers to focus on patients instead of payments.  Known for its innovative culture and compassionate approach to collections, RMP has grown to over 520 people in nine offices across the U.S.  The company proudly serves over 200 hospitals and roughly 30,000 physicians nationwide.

For more information, please visit ReceiveMoreRMP.com

Contacts

Karla Wittgren, Marketing Operations Manager
765-744-8456
karla.wittgren@ReceiveMoreRMP.com

Ali Bechtel, Digital Marketing Manager
610-916-7247
ali.bechtel@ReceiveMoreRMP.com

Collection Associates Rebrands Company, Unveils New Website and Logo
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Accounts Receivable Management

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Vets Charity Tells Story of Leopoldo Nunez to Kick Off 2016 Grant Application Drive

July 3, 2016 By Leave a Comment

Many More Military Vets Expected to Apply for Much-Needed Financial Help This Year

COLLINGSWOOD, N.J. – On July 4, 2016, ARMing Heroes (www.armingheroes.org), the collection industry’s charity for military veterans, will once again begin accepting applications for its No Debts for Vets grant-making program. The charity, which relies mainly on donations from ARM industry companies across the nation, provides grants to military vets and their families in need of financial support since returning home from service. Those interested in applying are encouraged to visit http://armingheroes.org/arming-heroes/vet-support-center for eligibility information and application details.

Grant awards typically range from a few hundred up to a several thousand dollars, most in the form of a direct payment to a creditor or creditors on behalf of the grant recipient. In December 2015, the charity awarded more than $54,000 in grants, just in time for the holidays. Stories of a few 2015 grant recipient show the help and hope this grant program provides to America’s vets.

One grant recipient, Leopoldo Nunez, was especially grateful. He dedicated 21 years of his life to serving in the U.S. Marines as a combat engineer, an operations specialist, and finally as a recruiter, earning several commendations and awards along the way, including a Navy and Marine Corps Commendation Medal, a Navy and Marine Corps Achievement Medal, a Combat Action Medal, Southwest Asia Service Medal, and several others.

Leo Nunez

Leo Nunez

 

After he retired from service and returned home to his family, Nunez struggled to make ends meet, but was unable to find work to help bridge the gap. Within one year, he lost his home to foreclosure and had to relocate and move in with family. He eventually found employment, but with his son starting college plus the costs associated with relocating again, his family’s finances were strained even further. Nunez turned to ARMing Heroes for help, and upon hearing the news of his grant award, he expressed his sincere appreciation.

“I want to take the opportunity to thank the donors for being so generous … This grant will allow me to start on the path to a better position by helping me pay my debts incurred in the move. Thank you very much from the bottom of our hearts, my family and I are very grateful to receive this grant. We wish you and your donors the best in these holidays and a very dream fulfilling New Year.”

ARMing Heroes expects to receive hundreds of interested applicants this year, all hoping for help in meeting daily expenses for needs typically not covered by government programs or other military charities. The charity relies on the generosity of ARM industry companies across the country to make this grant program possible, and therefore encourages ARM firms to lend their support by holding a company-wide fundraising drive at any point throughout the year, or making a corporate donation. Information on how to get involved can be found here http://armingheroes.org/arming-heroes/ways-to-help/hold-a-drive

The charity’s flagship No Debts for Vets Charity Fundraising Drive runs from September 11th through Veterans Day, November 11th every year, however tax-deductible donations are accepted at any time online at www.armingheroes.org and via mail to PO Box 353, Collingswood, NJ 08108, payable to ARMing Heroes. Pledges may be made to info@armingheroes.org.  Any amounts pledged or donated now will be applied to the 2016 drive.

About ARMing Heroes

ARMing Heroes was founded and began operating in March, 2009.  The organization’s mission is to serve the needs of U.S. military veterans, including their spouse and children. ARMing Heroes fills a charitable niche by linking people identified with employment, credit, and financial counseling needs with the accounts receivable management industry, an industry uniquely poised to help in these areas.  Persons interested in volunteering their time and others interested in applying for benefits or pledging other forms of support are encouraged to contact the organization at www.armingheroes.org.

What Can I Do Right Now to Help?

  • Visit www.armingheroes.org and donate now.
  • Make ARMing Heroes your designated charity through the AmazonSmile program.
  • Like the ARMing Heroes page and post this article to your page on Facebook.
  • Tweet about this article on Twitter.
  • Join our group on LinkedIn, the ARMing Heroes Veterans Charity Supporter / Assistance Center.
  • Forward this article via email to your key contacts.
  • Print this article and fax it to your local congressional office and ask them to post our website on theirs as a resource for vets.

Vets Charity Tells Story of Leopoldo Nunez to Kick Off 2016 Grant Application Drive
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American Coradius Partners with VECI to Employ Veterans

July 3, 2016 By Leave a Comment

AMHERST, N.Y. — American Coradius International LLC (ACI) is pleased to announce a partnership with the Veterans Economic Communities Initiative (VECI) to employ 30 veterans within the next year.  The VECI aims to support the economic success of Veterans and their families by bringing together community partners to coordinate meaningful employment and career opportunities at the local level.

This program gives Veterans access to resources and support that empowers Veterans and their families to return enormous value to their communities.  This not only creates stability and opportunity for Veterans, but also boosts the community’s economy and ability to attract more Veteran’s to its workforce.

ACI understands that a career is a vital piece of transitioning from military to civilian life for a veteran and ACI is here to help. “We feel strongly as an organization that we  have a responsibility  to honor our local veterans and their families for their service and sacrifice. We are excited to work with the VECI to collectively help those who are making the transition from military to civilian life,” says Robert Duggan, Vice President and Chief Operating Officer at American Coradius International.

For more information about ACI’s Commitment, please visit (in “Search” box type “Coradius”): www.vets.gov/employment/commitments

American Coradius Partners with VECI to Employ Veterans
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