Consumer Class Actions

Consumer Class Actions

How to handle every aspect of a class action, even for small law offices, written by experienced consumer class action litigators.

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Henson v. Santander

The Supreme Court on June 12 in Henson v. Santander Consumer USA Inc., __ U.S. __, 2017 WL 2507342 (June 12, 2017)held that debt buyers are not covered under the FDCPA’s second definition of debt collector because they do not collect debts owed to another. This webpage provides resources to consumer attorneys litigating cases against debt buyers whose principal business is buying defaulted debt.

This webpage will be updated as more materials become available. Please email This email address is being protected from spambots. You need JavaScript enabled to view it. with any submissions of relevant materials.

General Henson Analysis

Model Language for Henson Briefs

  • Model brief by Edelman, Combs, Latturner & Goodwin, LLC attorney Daniel Edelman (doc) (pdf), June 21, 2017

Sample Henson Briefing

Sample Complaints Against Debt Buyers

Additional Resources

  • Henson v. Santander Consumer USA Inc. Supreme Court Decision, June 12, 2017.
  • National Association of Consumer Advocates (NACA) webinar: Henson v. Santander Consumer USA Inc., June 28, 2017.  Cost: $40 (NACA member); $75 (Non-member). Note: Non-members of NACA must be vetted prior to purchasing. Please e-mail This email address is being protected from spambots. You need JavaScript enabled to view it. 
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please donate to NCLC's 2017 Consumer Rights Defense Fund today!

 

 

Spokeo, Inc. v. Robins

On May 16, 2016, the United States Supreme Court issued its decision in the case of Spokeo v. Robins, establishing important parameters for Article III federal jurisdiction in statutory damages litigation. Eleven days later, on May 27, 2016, with the generous assistance of our supporters, NCLC was able to launch a new webpage for consumer advocates and practitioners dedicated to critical analyses of the Spokeo decision and providing access to helpful briefs and model language, relevant court decisions and other useful practice aids. Since that time, we are to proud to have been able to post over 350 separate documents on the webpage which have provided valuable guidance and information regarding the quickly developing law and practice under Spokeo.

This service was considered to be vital because of the large number of cases stayed in the federal District Courts and Courts of Appeal pending the Spokeo outcome. Once the Spokeo opinion was issued there was a flood of new arguments, hearings and appeals that helped to define the application of the Supreme Court's ruling. Providing quick and easy access to the new decisions broken down by the consumer statutes to which they applied helped to inform and educate the consumer advocacy community.

Now, however, there is a wealth of newly published opinions applying Spokeo that generally are indexed and available through traditional research tools and services. Therefore, effective January 1, 2017, NCLC will no longer be posting published Spokeo decisions but, rather, will focus its efforts on Spokeo-related amicus briefs, litigation advice and assistance and the coordination of litigation arguments and strategies.

Spokeo opinions issued before that date still will be available on the NCLC website. In addition, unpublished opinions issued after that date, as well as new briefs and model language, will be posted under a new materials section of the webpage. Advocates are encouraged to continue to submit such materials to NCLC at This email address is being protected from spambots. You need JavaScript enabled to view it.. Finally, NCLC consumer manuals and digital library will be kept up to date and current on significant Spokeo developments, decisions and analyses.

We appreciate the wonderful support and feedback NCLC has received for its Spokeo webpage and look forward to continuing to provide useful resources related to the Spokeo decision for the benefit of the consumer advocacy community.

Robins v. Spokeo, Inc., Case No. 11-56843 (9th Cir.):
  • Plaintiff-Appellant Robins filed a supplemental brief in response to Spokeo’s January 3rd submission on January 7th, 2017
  • Defendant-Appellee Spokeo filed a supplemental brief on January 3rd, 2017, calling the 9th Cir. Court of Appeals' attention to two new cases decided since oral argument (Meyers v. Nicolet Restaurant of De Pere, LLC, --- F.3d ----, 2016 WL 7217581 (7th Cir. Dec. 13, 2016 and Soehnlen v. Fleet Owners Insurance Fund, --- F.3d ----, 2016 WL 7383993 (6th Cir. Dec. 21, 2016)
  • Plaintiff-Appellant Robins filed a supplemental brief in response to Spokeo’s submittal that the pertinent issue in this case is whether Robins suffered a “real-world” harm. Plaintiff-Appellant instead explains that because Spokeo concedes that the violation of a statutory right can be concrete without any further showing, the issue is whether Section 1681e(b) protects a concrete interest. Robins argues that it does.
  • Defendant-Appellee Spokeo filed a supplemental brief arguing that Congress expressed no judgment as to whether the publication of false information in a consumer report automatically constitutes an injury-in-fact, and that Section 1681e(b) does not therefore protect a concrete interest.
  • Upon remand to the U.S. Court of Appeals for the Ninth Circuit, Plaintiff-Appellant, Thomas Robins, filed a supplemental brief in response to the Court’s request for briefing on whether the particular procedural violations of the Fair Credit Reporting Act alleged by Robins entail a degree of risk sufficient to meet the concreteness requirement for Article III standing.
  • Defendant-Appellee, Spokeo Inc., also submitted a supplemental brief, arguing that neither the statutory violations alleged nor the factual allegations of the complaint demonstrate that Robins suffered the required concrete harm or faced a certainly impending risk of harm.
  • The CFPB has filed an unopposed motion for leave to file a brief as amicus curiae in Robins v. Spokeo, Inc. The CFPB writes in support of Plaintiff-Appellant, arguing that Spokeo’s alleged dissemination of an inaccurate consumer report about Robins is a concrete injury under Article III.
  • Experian has filed an unopposed motion for leave to file a brief as amicus curiae in Robins v. Spokeo, Inc.. In its brief, Experian argues that Plaintiff alleges a broad “type” of inaccuracy that cannot without more constitute a concrete harm sufficient to satisfy Article III.

Statute-Specific Spokeo Analyses Excerpted from Updated National Consumer Law Center (NCLC) Legal Treatises

Relevant Spokeo analyses are available below, along with links to the treatises from which they have been extracted.

  • Class Actions Spokeo analysis from Consumer Class Actions (760 pp.; in print and online)
    Ch. 10.3.3: Typicality—Rule 23(a)(3)  PDF || MS Word
  • Fair Credit Reporting Act Spokeo analysis from Fair Credit Reporting (1136 pp. in two vol.; online update)
    Ch. 11.2.1.3.9a PDF || MS Word
  • Fair Debt Collection Practices Act Spokeo analysis from Fair Debt Collection (1416 pp. in two vol.; online update)
    Ch. 6.11a: Article III Constitutional Standing Under Spokeo As Applied to the FDCPA PDF || MS Word
  • Foreclosure
    Ch. 10.4.1.2A Standing PDF || MS Word
  • Mortgage Lending 
    Ch. 7.4.5  PDF || MS Word
  • Real Estate Settlement Procedures Act (mortgage servicing provisions)
    Ch. 3.2.10.7: Spokeo analysis from Foreclosures and Mortgage Servicing PDF || MS Word
  • Truth in Lending Spokeo analysis from Truth in Lending (1650 pp. in two vol.; online update)
    Ch. 11: Standing PDF || MS Word   
  • Telephone Consumer Protection Act Spokeo analysis from Federal Deception Law (496 pp.; online update)
    Ch. 6.9.2a: Article III Standing  PDF || MS Word
NCLC’s full treatises contain additional information concerning litigation issues under these federal statutes. NCLC's 20 consumer law treatises are the most important tool in a consumer lawyer's arsenal. For over 30 years, the treatises have helped new and experienced attorneys around the country win cases involving debt collection, mortgages, other forms of consumer credit, credit reporting, class actions, vehicle sales, and more. Written by legal experts, the treatises are comprehensive and practical.

The treatises are available in print and online. The online versions include additional pleadings and primary source material, and feature frequent updates, full text search, live links, and the ability to copy/paste excerpts, Subscriptions are available as print and online or online-only, and to individual titles or to the complete 20 treatise set. Visit: www.nclc.org/bookstore.

General Spokeo Analyses

Other Practice Aids

Sample motions, model damage allegations for pleadings, and other practice materials are available below. Relevant materials may be submitted to NCLC’s Director of Litigation Stuart Rossman at This email address is being protected from spambots. You need JavaScript enabled to view it.. Please submit a Word version, and, if the document has been filed with the court, a PDF version with the date stamp. Note: NCLC has neither proofread nor edited submitted materials.

Additional Resources

  • Spokeo, Inc. v. Robins Supreme Court Decision, May 16, 2016.
  • National Association of Consumer Advocates (NACA) webinar: What does the Spokeo Decision Mean for Consumer Lawyers, May 18, 2016. Cost: $35 (NACA member); $90 (Non-member) Note: Non-members of NACA must be vetted prior to purchasing. Please e-mail This email address is being protected from spambots. You need JavaScript enabled to view it..
  • Still Standing After Spokeo,  Stuart Rossman, Trial Magazine article, Feb. 2017

NCLC thanks members of the National Association of Consumer Advocates, the National Association of Consumer Bankruptcy Attorneys, and our many others for their generous support for this web content. Additional donations are welcome. Please contact NCLC Director of Litigation Stuart Rossman (This email address is being protected from spambots. You need JavaScript enabled to view it.).

Since 1969, the nonprofit National Consumer Law Center® (NCLC®) has worked for consumer justice and economic security for low-income and other disadvantaged people, including older adults, in the U.S. through its expertise in policy analysis and advocacy, publications, litigation, expert witness services, and training.

Case Index - Closed Cases

Auto Finance Discrimination

As co-counsel in a series of national class action lawsuits brought under the Equal Credit Opportunity Act, NCLC has successfully attacked racially discriminatory lending practices in the used (and new) car business, with settlements valued at well over $100 million. The cases, which were filed against some of the nation’s largest auto finance companies and banks, charged that the defendants maintained policies which permit car dealers to "mark-up" the finance rates on loans based on subjective criteria unrelated to creditworthiness. This mark-up policy has had a disparate impact on African-American and Hispanic customers, who end up paying more for credit than whites with similar credit ratings. The lawsuits, which exposed practices that had operated secretly for over 75 years and had resulted in higher-interest rate car loans for minorities, have transformed car financing practices across the industry.

Debt Collection

  • Fritz v. Resurgent Capital Services and LVNV, Case No. 11–CV–3300 FB VVP in the Eastern District of New York. Memorandum & OrderFinal judgment, Sept. 16, 2016
    This case challenges the practice of debt buyer LVNV filing state court collection suits in the name of Resurent Capital, one of its unlicensed subsidiaries, in order to protect itself from liability. In a ruling on July 24, 2013, the court denied the defendants' Motion to Dismiss in all respects but one. He held that plaintiffs had stated a viable misrepresentation claim under the FDCPA. The court recognized that misrepresenting the owner of the debt was a material violation even though the true owner was a corporate parent because it could confuse and mislead the least sophisticated consumer. Another FDCPA violation that also passed muster was that defendants falsely reported the amount of the debt to CRAs by including state court costs even when they hadn't yet gotten a judgment in their collection action awarding such costs.
    Affirmative defenses of collateral estoppel (due to state court collection judgments), abstention and Noerr Pennington were rejected too. The only claim that was dismissed related to an individual collection letter that also misrepresented ownership of the debt, but was filed beyond the 1 year statute of limitations for such a claim. The decision is reported at 2013 WL 3821479.

Private Child Support Collection Agencie

RAL Cross Lender Debt Collection

Military Pensions

  • Amos v. Advanced Funding, Inc. et al Complaint

Litigation

NCLC represents consumers in cutting-edge litigation that seeks to reform the rules of the marketplace.  We are interested in cases that will have a far-reaching impact and can benefit from our unique legal and policy expertise.  To maximize our limited resources we help bring together strong litigation teams made up of private lawyers, legal aid, and nonprofit groups.

Litigation Project Guidelines || Co-Counseling with NCLC || Case Index || Litigation Tools 
Spokeo, Inc. v. Robins

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Case Index

OPEN CASES

Reverse Mortgages

  • Floyd v Nationstar Mortgage, LLC, Case No. 16-CV-00835-CRC in the U.S. District Court for the District of Columbia. Complaint || Press Release
    The National Consumer Law Center, the Consumer Fraud & Financial Abuse Unit of Legal Counsel for the Elderly in Washington, D.C. (AARP) and the law firm of Tycko & Zavareei have filed a class action suit in the United States District Court for the District of Columbia on behalf of Retha Floyd and other similarly situated homeowners who have Home Equity Conversion (HECM) loans with Nationstar Mortgage d/b/a Champion Mortgage Company. The putative class consists of all U.S. residents who had a HECM loan with Champion Mortgage and whose accounts were assessed fees for property inspections more than once in a 30-day period.

Student Loans

  • Case against the United States Department of Education
    The National Consumer Law Center is co-counsel in a Freedom of Information Act suit requesting public records of the U.S. Department of Education regarding race and debt collection practices of third-party debt collectors hired by the Department. 
    Complaint, Exhibit 1 (FOIA request, May 7, 2015), Exhibit 2, Exhibit 3, and Exhibit 4, and press release

Debt Collection

  • Baker v. Ross Press Release || Complaint - The innovative class action lawsuit was filed by the Public Interest Law Center, Chimicles & Tikellis LLP, and the National Consumer Law Center, on behalf of a low-income tenant named Cassandra Baker and others like her. The complaint alleges her landlord’s collection lawyer, like many landlord lawyers, used misleading debt collection practices while attempting to evict her and force her to pay rent she did not owe, and that those practices violated federal law.
  • Lannan v. Levy & White, Case No. 14 cv 13866 - Partial summary judgment as to liability and class certification were granted in an FDCPA and MA Ch. 93A suit against an attorney debt collector who misrepresented the amount owed by persons receiving ambulance services when he calculated prejudgment interest from the date the services were provided, rather than from the date a demand for payment was sent to the patient. In addition, as a separate violation, in his small claims complaints, the attorney lumped prejudgment interest that hadn't yet been awarded into the amount claimed to already be due at the time of filing of the complaint. The court found this could be confusing to an unsophisticated consumer deciding how to respond to the complaint. Complaint || Order 
  • Kulig v. Midland Funding, Case No. 13 CV 4715, US District Court (EDNY) - suit for systematically filing time-barred lawsuits against hundreds of New York consumers who fell behind on their credit card payments. The suit covers New York consumers whose credit card was issued by a Delaware bank. Under NY law, these collection suits must be filed within 3 years of default on the account, but Midland routinely sues long after that.
  • Clawson, appellant v. Midland Funding et al - Opinion of Court of Appeals Decision, Feb. 26, 2013
    The Sixth Circuit Court of Appeals reversed approval of a nationwide settlement affecting 1.44 million victims of a debt buyer's "predatory practices" in using robosigned affidavits to obtain state court collection judgments. The Court found that the original settlement was unfair, unreasonable, and inadequate, that the district court abused its discretion in certifying the nationwide settlement class, and that the notice to prospective class members did not satisfy due process. This step allows all of the other robo-signing cases brought against Midland around the United States to proceed. NCLC represented one of the appellants in the case.
  • Blake v. Riddle & Wood, Second Amended Class Action Complaint
  • Tammaro v. Direct Federal Credit Union, First Amended Class Action Complaint

ERISA

Fair Credit Reporting

  • White v. Experian/TransUnion/Equifax 
    The National Consumer Law Center is co-counsel for the plaintiffs in class action lawsuit against TransUnion LLC, Experian Information Solutions, Inc., and Equifax Information Services LLC ("Defendants"). The suit claims that the Defendants violated the Fair Credit Reporting Act ("FCRA") and state laws when reporting debts that had been discharged in bankruptcy as not discharged, failed to conduct proper investigations of consumer disputes regarding such debts and caused damage to consumers as a result. A proposed settlement ("Settlement") has been reached which, if finally approved by the Court, will provide payments of damage awards from a $45 million settlement fund. Notices regarding the Settlement recently have been sent to the members of the Settlement class.

Foreclosure and Mortgage

  • Wilborn v. Bank One, Class Action Complaint

This lawsuit challenged provisions in mortgages that allow reinstatement of a loan after default only if the homeowner brings all payments current and also pays the attorney's fees incurred by the lender attempting to foreclose. NCLC and our co-counsel argued that these provisions were contrary to Ohio's public policy that creditors cannot collect attorney's fees from borrowers in debt collection actions. The Ohio Supreme Court found that because the right to reinstate was contractual, not statutory, the requirement to pay attorney's fees was an enforceable part of the bargain. However, the Court distinguished reinstatement from other circumstances such as redemption or paying off a home equity line of credit, where the borrower pays the entire debt and no contractual relationship remains – in those circumstances, the lender cannot collect its attorney's fees. The Ohio Supreme Court remanded the remaining portion of the case which it distinguished for trial in the Court of Common Pleas, and that the matter remains pending there for those class members who did not have their debts reinstated.

Fraud in the Foreclosure Process

Mortgage Securitization Discrimination

Mortgage Servicing Litigation

High Cost Small Loans

  • In re: Chase Bank USA, N.A. “Check Loan” Contract Litigation, Master Class Action Complaint

Overdraft Loans

  • Yourke v. Bank of America, Complaint
    (Appendix A, Appendix B, Appendix C-1 and C-2, Appendix D, Appendix E, Appendices F-G)

Subprime Mortgage Discrimination

National class action cases brought under the Fair Housing Act and the Equal Credit Opportunity Act against certain subprime mortgage lenders:

Military Pensions

  • Henry v. Structured Investments Co. et al ComplaintTrial Decision (Class-action lawsuit regarding assignment of pension rights in exchange for lump sum payments)


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CLOSED CASES