Case Summaries
Bankruptcy Law
Commercial Law
Consumer Protection
Dispute Resolution & Arbitration
Bankruptcy Law
[03/08]
Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.
[03/08]
In Re: Ray
District court's judgment affirming the bankruptcy court's dismissal of two Chapter 11 proceedings was correct, but the decision is vacated, as the law firm lacked standing where there is no evidence that one of the law firm's former attorneys ever informed the bankruptcy court that it was appearing on behalf of the firm and the record is devoid of any mention of the firm by the attorney or any other party.
[02/19]
Miller v. LaSalle Bank Nat'l Ass'n
In bankruptcy trustee's adversary proceeding to avoid a creditor's mortgage lien, arising from a purchase of debtors' property with a recorded mortgage containing a technical defect, decision of the district court in favor of the creditor is affirmed as considering, inter alia, a 2008 Amendment that quickly clarified that a provision applied to all mortgages, the legislature likely intended the 2007 Amendment to apply to all mortgages, whenever filed.
[02/15]
In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.
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Commercial Law
[03/09]
Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.
[03/04]
New York v. Golden Feather Smoke Shop, Inc.
In defendants' appeal from a preliminary injunction prohibiting the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use, the Second Circuit certifies the following questions to the New York Court of Appeals: 1) Does N.Y. Tax Law section 471-e, either by itself or in combination with the provisions of section 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?; 2) If the answer to Question 1 is "no," does N.Y. Tax Law section 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation's nation or tribe?
[03/02]
Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.
[03/02]
Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
In an action against Merrill Lynch based on unauthorized transfers from plaintiff's investment account, summary judgment for defendant is affirmed where New York U.C.C. Section 4-A-505, which imposes a one-year statute of repose on certain claims based on electronic funds transfers, bars plaintiffs' common law claims, which had longer limitations periods.
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Consumer Protection
[03/09]
Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.
[03/08]
Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.
[03/02]
Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.
[02/22]
Southwestern Bell Tel. Co. v. Mktg. on Hold Inc.
In an interlocutory appeal of a trial court's class certification order, where the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees, the judgment of the court of appeals is reversed and the class decertified where: 1) the assignments are valid and provide standing; 2) the class representative's claims are typical of the other class members' claims; 3) common questions of law or fact predominate; but 4) the putative class representative failed to establish that it adequately represents the claim.
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Dispute Resolution & Arbitration
[03/09]
San Francisco Hous. Auth. v. SEIU Local 790
Superior court's order vacating an arbitration award in its entirety on the ground that the the award is contrary to layoff provisions of the memorandum of understanding (MOU) between the parties is reversed as the remedy imposed by the arbitrator did not conflict with clear and explicit language of the MOU and it was rationally related to the breach identified.
[03/04]
Pac. Bell Tel. Co. v. Cal. Pub. Utils. Comm.
In a telecommunications company's appeal from (1) the district court's confirmation of an arbitral order affirming the California Public Utilities Commission's (CPUC) requirement that plaintiff lease entrance facilities to competitor local exchange carriers (LECs) at Total Element Long Run Incremental Cost (TELRIC) rates for the purpose of interconnection; and (2) the district court's order vacating the arbitrator's affirmance of CPUC's conclusion that 47 C.F.R. section 51.319(e)(2)(ii)(B) applied only on routes where competitive LECs were not "impaired" as to DS3 transport circuits, the orders are affirmed where: 1) FCC regulations authorized state public utilities commissions to order incumbent LECs to lease entrance facilities to competitive LECs at regulated rates for the purpose of interconnection; and 2) the plain language of the governing regulation, 47 C.F.R. section 51.319(e (2)(ii)(B), limited a competitive LEC to a maximum of ten DS1 circuits along any route regardless of whether the competitive LEC was impaired as to DS3 lines.
[03/01]
Powershare, Inc. v. Syntel, Inc.
In parties' action for breach of a business agreement, a district court's denial of defendant's motion to stay litigation pending arbitration is reversed where: 1) the agreement contains a mandatory arbitration provision; and 2) the standard of review to be employed by a district judge when reviewing a magistrate judge's order on a motion to stay litigation pending the resolution of a parallel arbitration proceeding is under the "clearly erroneous or contrary to law" standard elucidated in Rule 72(a).
[02/26]
Gravillis v. Coldwell Banker Residential Brokerage Co.
In plaintiff's action against his brokers for failing to disclose the structural damage of his home, trial court's decision affirming the arbitrator's award of damages in favor of the plaintiff is affirmed as the arbitration agreement does not explicitly and unambiguously provide for an expanded scope of review.
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