Balch & Bingham LLP

In Obduskey v. McCarthy & Holthus LLP, No. 17-1307 (Sup. Ct. Mar. 20, 2019), the Supreme Court ruled unanimously that non-judicial foreclosure actions required by state law are not generally considered debt collection, and therefore are not subject to regulation under the FDCPA. The majority opinion, written by Justice Breyer, held that the firm’s foreclosure activities to enforce a valid mortgage security interest neither fell within the purview of section 1692f(6), which provides a limited…
In our Southeast Financial Litigation Monitor, our own Lindsey Catlett posts about a recent opinion in Southern Independent Bank vs. Fred’s Inc., in which the Middle District of Alabama denied class certification following a data breach which allegedly affected over 2,000 financial institutions across the country. Southern Independent, a community bank located in south Alabama, brought a class action complaint against Fred’s in response to a data breach in which hackers, using malware installed on…
Last week, the U.S. District Court for the Middle District of Alabama denied Southern Independent Bank’s (“Southern Independent’s”) motion for class certification following a data breach which allegedly affected over 2,000 financial institutions across the country. Southern Independent, a community bank located in south Alabama, brought a class action complaint against Fred’s in response to a data breach in which hackers, using malware installed on servers, harvested payment data from consumer debit cards used at…
The plaintiff in Mollberg v. Advanced Call Center Technologies, Inc., No. 18-1210, 2019 WL 288128 (E.D.Wis. Jan. 22, 2019) received a letter from Advanced Call Center Technologies (which I’ll refer to as ACCT) that attempted to collect a debt owed to Synchrony Bank.  The letter said that the “Total Account Balance” was $1,113.00 and that the “Amount Now Due” was $234.00.  Even though the letter didn’t itemize it, the “Amount Now Due” was the sum of the…
In Reyes v. Steeg Law, LLC, 2019 WL 258068, (5th Cir. Jan. 17, 2019), the Fifth Circuit considered whether a law firm was a debt collector under the FDCPA. Under the FDCPA, attorneys qualify as debt collectors when they regularly engage in consumer debt collection, including but not limited to litigation on behalf of a creditor client. The Fifth Circuit affirmed the District Court’s holding that Steeg Law, which specialized in real estate and condominium…
In an opinion issued today (January 25, 2019), the Illinois Supreme Court found that a Six Flags season pass holder can claim a violation of the state’s biometric privacy law by collecting the thumbprint of plaintiff Stacy Rosenbach’s son without permission, even without alleging any actual harm.  This is an important ruling that could impact hundreds of similar pending cases. In a unanimous decision, the court wrote that Rosenbach’s son can be considered an “aggrieved…
On January 21, 2019, the French Data Protection Authority, the Commission Nationale de L’Informatique et de Libertés (“CNIL”) announced a sanction of 50 million euros against Google.  On May 25 and 28, 2018, the CNIL received complaints from two different associations, asserting that Google did not have a valid legal basis for the processing of personal data of the users of its services, particularly with respect to ad personalization.  The complaints were brought by “None…
The least sophisticated consumer doesn’t need everything spelled out for him.  Or at least that’s what the Eleventh Circuit held recently in Conde v. Webcollex, LLC, No. 18-12551 — another case where a court finds that something means exactly what it says. The plaintiff in Conde filed suit after he got a validation letter from Webcollex telling him that: Unless you notify this office within 30 days after receiving this notice that you dispute the validity…
Few things under the Telephone Consumer Protection Act (TCPA) are subject to as much uncertainty as the definition of “automatic telephone dialing system” (ATDS). This year’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) seems to have raised more questions than it answered as courts and the FCC continue to grapple with this definitional component of the TCPA.  Courts are divided as to how to define an ATDS as demonstrated by…