Balch & Bingham LLP

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…
Last month, the Eleventh Circuit revisited the U.S. Supreme Court’s controversial decision in Spokeo, Inc. v. Robins, and appears to have set a low bar for plaintiffs to clear in establishing standing. The case, Muransky v. Godiva Chocolatier, Inc., Case No. 16-16486 (11th Cir. October 3, 2018) came before the Eleventh Circuit on appeal from the United States District Court for the Southern District of Florida after the district court approved a settlement plan…
Earlier this month, the United States Court of Appeals for the Eleventh Circuit issued a decision that could make it easier for manufacturers to force consumers into arbitration via “shrinkwrap” agreements—packaged contracts which bind consumers by merely opening and keeping a product.  In Dye v. Tamko Building Products, Inc., Case No. 17-14052 (11th Cir. Nov. 2, 2018), the Eleventh Circuit considered an appeal of a district court’s order compelling arbitration and dismissing a lawsuit by…
Georgia regulates the small loan industry with usury laws like the Payday Lending Act and Industrial Loan Act. But, as the Georgia Supreme Court recently held, these Acts can reach only as far as their texts allow. In Ruth v. Cherokee Funding, LLC, the Georgia Supreme Court held money advanced by a litigation finance company is not a “loan” under either the PLA or the ILA where the litigant’s obligation to repay depends on the…
The Alabama Civil Court of Appeals recently issued a decision, International Management Group, Inc. v. Bryant Bank, No. 2170744, which, among other things, limits the potential for summary judgment in fraudulent transfer cases, especially where actual fraud must be proven. In this case, Bryant Bank sued International Management Group (“IMG”) following its alleged insolvency, seeking to void a series of insider transfers of mortgages securing promissory notes to Bryant Bank. IMG’s principal, Michael Carter had…
With the 2016 employer mandate tax assessment letters hitting employer desks this week, it seems like a good time to summarize our experience with the 2015 ESRP process.  We can’t identify clients or disclose specifics of any 2015 Employer Shared Responsibility Payment matter that we have handled; this is just our overall view. The IRS occasionally got something wrong, but employers usually got 2015 Letter 226J because the employers or their AIR Transmitters reported something incorrectly or incompletely…
On October 19, 2018, the Alabama Court of Civil Appeals issued an opinion in Chandler v. Branch Banking & Trust Company (No. 2160999), holding that a joint owner of property at issue in an ejectment action is a necessary and indispensable party, even where the non-party property owner’s interests are closely aligned with a named party. Practically, this ruling emphasizes the importance of joining all necessary parties to an ejectment action when it is filed.…
In Patel, et al v. Specialized Loan Servicing LLC, et al, No. 16-12100 (11th Cir. 2018), the Eleventh Circuit held that claims against a loan servicer for “artificially inflated” force-placed insurance premiums were barred by the filed rate doctrine. In Patel, the plaintiff alleged that loan servicers and insurance companies breached implied covenants of good faith and fair dealing, as well as various deceptive and unfair trade practice statutes, by purchasing force-placed insurance for…