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    The Brief: Financial Services Litigation Quarterly Fall 2023
    2023-10-16

    THE BRIEF

    FINANCIAL SERVICES LITIGATION QUARTERLY

    FALL 2023

    1

    TABLE OF CONTENTS

    Were There Underwriting Requirements for PPP Loans After All? The Sound-Value Requirement May Pose Risk for PPP Lenders

    3

    Noteworthy10

    District Court Upholds New ERISA Rules on ESG Investing

    10

    Fourth Circuit Holds That Class-Action Waivers Must Be Addressed Before Class Certification

    12

    Ninth Circuit: Fees for Claims-Made Settlements Must Be Based on Actual Recovery

    13

    Filed under:
    USA, Banking, Company & Commercial, Environment & Climate Change, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Employee Retirement Income Security Act 1974 (USA), Climate change, ESG, Paycheck Protection Program, Consumer Financial Protection Bureau (USA), US Congress, Small Business Administration (USA), Accenture, Telephone Consumer Protection Act 1991 (USA), CARES Act 2020 (USA)
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    This Week At The Ninth: Inaudible Texts and Bankruptcy Fees
    2023-08-11

    This week, the Ninth Circuit addresses whether text messages can violate the Telephone Consumer Protection Act’s prohibition on “prerecorded voice” messages, and it considers whether debtors who paid statutory fees under an unconstitutionally nonuniform bankruptcy provision are entitled to a refund.

    TRIM v. REWARD ZONE USA LLC

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Telecoms, Morrison & Foerster LLP, Telephone Consumer Protection Act 1991 (USA)
    Authors:
    James R. Sigel , Lena H. Hughes
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Would-Be TCPA Plaintiff Cannot Unilaterally Revoke Contractual Consent to be Called
    2020-05-07

    The Eleventh Circuit has joined the Second in holding that consent to be called using an autodialer and/or prerecorded messages, given as part of a contract, cannot be unilaterally withdrawn. Medley v. DISH Network, LLC, 2020 WL 2092594 (11th Cir. May 1, 2020).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Telecoms, Eversheds Sutherland (US) LLP, Personal data, Telephone Consumer Protection Act 1991 (USA)
    Authors:
    Valerie S. Sanders
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    2019 Bankruptcy Year in Review: What We Have Seen and What to Expect in 2020
    2019-12-31

    Over the past year, bankruptcy filings have increased. We are projecting 768,000 filings by the end of the 2019 year — 61% of the filings as chapter 7, 37% as chapter 13, and 2% as chapter 11 and 12 filings. This is a 2% increase from the prior year. Commercial filings are at 5,542 filings compared to 5,108 in 2018.

    Increased Filings in Commercial Sector, Especially Retail, Medical and Transportation

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Telephone Consumer Protection Act 1991 (USA), Fair Debt Collection Practices Act 1977 (USA)
    Authors:
    Alan C. Hochheiser
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Delaware Bankruptcy Court Approves Settlement of Alleged Violation of Massachusetts Telemarketing Laws
    2020-01-06

    On December 17, the United States Bankruptcy Court for the District of Delaware approved a settlement between Starion Energy Inc. and the Commonwealth of Massachusetts in which Starion agreed to pay up to $10 million to resolve claims that it engaged in deceptive business practices and violated state telemarketing laws.

    Starion is a retail provider of electricity and natural gas that offers service to residential and commercial customers in states where energy deregulation permits customers to choose their supplier.

    Filed under:
    USA, Delaware, Massachusetts, Insolvency & Restructuring, Litigation, Telecoms, Troutman Pepper, Telephone Consumer Protection Act 1991 (USA), United States bankruptcy court
    Authors:
    Mark D. Kundmueller , Cindy D. Hanson
    Location:
    USA
    Firm:
    Troutman Pepper
    No Escape: Court Asked to Find TCPA Judgment Against Corporate Officer Non-Dischargeable In Bankruptcy
    2019-09-23

    We’re still a month away from Halloween, but TCPAWorld has just become even scarier.

    I have frequently remarked on the unfairness of individual corporate officers being held individually and personally liable for TCPA violations committed by corporate entities. That sometimes means liability well into the millions of dollars in personal exposure for individuals based upon actions taken by companies these individuals helped run. Well imagine, for a moment, if all that exposure were deemed non-dischargeable in bankruptcy. Horrifying right?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Telecoms, Squire Patton Boggs, Debtor, Telephone Consumer Protection Act 1991 (USA)
    Location:
    USA
    Firm:
    Squire Patton Boggs
    “Birds of Prey” Argument Not Enough to Warrant Sanctions Against Law Firm Engaging in Alleged Serial Filing of TCPA Claims Arising From Bankruptcy Proceedings
    2019-03-14

    A U.S. Bankruptcy Court has denied a creditor’s motion for sanctions against a law firm in the Middle District of Florida which the creditor alleged engaged in serial filings.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Telecoms, Troutman Pepper, Due diligence, Telephone Consumer Protection Act 1991 (USA), United States bankruptcy court
    Authors:
    S. Austin Dunn , Mary C. Zinsner , David N. Anthony
    Location:
    USA
    Firm:
    Troutman Pepper
    “Birds of Prey?”: No Sanctions Over Huge Volume of Lash & Wilcox BK Filings But “Additional Due Diligence” Ordered
    2019-03-07

    It will come as no surprise to avid readers of TCPAWorld.com that some folks may take offense to the tactics of Lash & Wilcox.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Telecoms, Squire Patton Boggs, Due diligence, Debt collection, Telephone Consumer Protection Act 1991 (USA)
    Location:
    USA
    Firm:
    Squire Patton Boggs
    District Court Takes on the Intersection of Bankruptcy and the FDCPA
    2017-05-12

    A New York District Court recently tackled the intersection between bankruptcy and pre-petition FDCPA claims and the application of judicial estoppel to undisclosed claims. In December 2013, Jeziorowski filed a complaint alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act of 1991 (TCPA). Jeziorowski v. Credit Prot. Assn., L.P., 2017 U.S. Dist. LEXIS 66084 (W.D.N.Y. 2017). Shortly after filing suit, Jeziorowski filed bankruptcy pursuant to Chapter 7.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Telecoms, Smith Debnam Narron Drake Saintsing & Myers LLP, Telephone Consumer Protection Act 1991 (USA), Fair Debt Collection Practices Act 1977 (USA)
    Authors:
    Caren Enloe
    Location:
    USA
    Firm:
    Smith Debnam Narron Drake Saintsing & Myers LLP
    MD Fla. Holds Notice of Bankruptcy Sufficient for ‘Actual Knowledge’ of Representation by Counsel Under FCCPA
    2016-10-24

    The U.S. District Court for the Middle District of Florida, Orlando Division recently ruled that debtors’ FCCPA and TCPA claims did not arise out of and were not related to their mortgage to fall under the jury waiver provisions in the mortgage where the claims arose out of attempts to enforce a debt that was discharged in bankruptcy.

    The Court also ruled the debtors sufficiently stated a claim under FCCPA by alleging the creditor received notice of the debtors’ bankruptcy case to constitute actual knowledge the debtors’ were represented by counsel.

    Filed under:
    USA, Florida, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Bankruptcy, Mortgage loan, Telephone Consumer Protection Act 1991 (USA), Fair Debt Collection Practices Act 1977 (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP

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