Jessica Ring Amunson

No Circuit Split Yet on Constitutionality of CFPB

By Jessica Ring Amunson

New-Development-IconIn a highly anticipated decision, the Ninth Circuit recently held that the target of a civil investigative demand from the Consumer Financial Protection Bureau (CFPB) could not avoid responding to the demand on the grounds that the CFPB itself is unconstitutional.  The Ninth Circuit thus joined the en banc DC Circuit in upholding the constitutionality of CFPB’s single-director, for-cause removal structure.  However, a circuit split may yet emerge with cases still pending before both the Second and Fifth Circuits raising the same issue.

In CFPB v. Seila Law LLC, the CFPB issued a civil investigative demand seeking to determine whether Seila violated the Telemarketing Sales Rule in the course of providing debt-relief service to its clients.  Seila refused to comply, arguing that the civil investigative demand was invalid because the CFPB is unconstitutionally structured.  According to Seila, not only was the civil investigative demand unlawful, but everything the agency has done is also unlawful because the agency’s structure violates the separation of powers.  The agency is headed by a single director who can be removed by the President only for cause.

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Turning the Tide on the TCCWNA?

Supreme Court iStock_000017257808LargeBy Jessica R. Amunson

In recent years, a 35-year-old New Jersey statute known as the Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”) has soared in popularity with plaintiff’s lawyers bringing putative class actions.  These class actions target retailers’ online terms and conditions and often focus on minor technical problems that plaintiffs claim run afoul of the TCCWNA.  With a $100 penalty provided by the statute for each violation, commentators have found that in the TCCWNA, “[c]lass action lawyers … may have struck gold.”  A report from the New Jersey Civil Justice Institute describes the dramatic increase in new cases filed under the TCCWNA.  However, the tide may be turning as several recent decisions from federal district courts question whether plaintiffs have suffered any harm from purported violations of the TCCWNA and whether plaintiffs can therefore meet the Article III standing requirements as recently articulated by the Supreme Court in Spokeo, Inc. v. Robins, 578 U.S. ___ (2016). 

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Ninth Circuit Affirms Denial of Class Cert in Printer Suit

New-Update-IconBy Jessica Ring Amunson

On April 19, 2016, the Ninth Circuit affirmed the denial of class certification in a suit brought by consumers alleging that Epson misled purchasers of its inkjet color printers.  The consumers alleged that Epson had represented that a user need only replace the color that was empty when it ran out of ink, but that the entire printer cartridge actually needed to be replaced as the printer would not print black and white copies after any color ran out.  The putative class consisted of everyone who had purchased the printers in question since 2005, and the complaint alleged causes of action under California’s Unfair Competition Law and False Advertising Law.  The district court refused to certify the class, finding that common questions of law and fact did not predominate.  In a summary opinion, the Ninth Circuit affirmed, holding that in a “case of this nature, one based on product labeling, advertising, and the like, it is critical that the misrepresentations be made to all of the class members.”  The court noted that the evidence did not support a finding that all members of class saw or otherwise received misrepresentations regarding the replacement of color cartridges. Indeed, the record showed that some consumers who bought the printers online would only have seen the alleged misrepresentation when the package later arrived in the mail, and therefore there was no causal connection between the purchase of the printer and the alleged misrepresentation.  The court also rejected the plaintiff’s claim that it should have sua sponte redefined the proposed class, holding that “the burden of proposing a narrower class was [the plaintiff’s], and not that of the district court.”  Finally, the court held that although the district court erred in characterizing the failure of proof as a lack of standing rather than a lack of causation, it would nonetheless affirm the decision to deny class certification because the decision was otherwise correct.  The case, which was filed more than five years ago, returns again to the district court.

Gisele Rogers et al. v. Epson America Inc. et al.,  Case No. 11-57016 (9th Cir. 2016)