Consumer Litigation


Learn while you’re on the go. Access the Consumer Litigation Committee’s recordings on this archive page.

Sound Advice

FCRA Litigation: A Review of Top Issues from 2020 and What to Expect in 2021
This panel will discuss the significant developments in Fair Credit Reporting Act litigation from 2020, with a particular focus on cases that involve class action issues. Panel discussion topics will include standing to bring claims under the FCRA, standards for accuracy, dispute handling responsibilities, and punitive damages. We will also predict what 2021 is expected to bring and how litigation may be impacted by a changing political and regulatory landscape. (62:06 min.)

Supreme Court Debates Application of the "Discovery Rule" to FDCPA Limitations Period
In Rotkiske v. Klemm, the Supreme Court is poised to decide whether the FDCPA’s limitations period can be enlarged by the "discovery rule.” The Court’s eventual ruling could have major implications for the FDCPA and beyond. In this Sound Advice, Mark Rooney (Consumer Litigation) and Anna-Rose Mathieson (Appellate Practice) discuss the central issues raised during the Court’s recent oral argument. (9:49 min.)

Fraudulent Joinder
In this program, Donald Pocock reviews fraudulent joinder, a doctrine developed by federal courts to permit removal of diversity cases where a party (plaintiff or defendant) appears to destroy complete diversity. (12:09 min.)

Buried Webpage Disclosures and Presumed Reliance
Jonathan Udell explores the potential for companies to discretely disclose information in places where it is unlikely to be seen, and provides several tips for responding to such disclosure theories in California consumer fraud actions. (10:07 min.)

The Development of California's Choice-of-Law Analysis
This podcast traces the development of California's choice-of-law analysis, from a place-of-the-wrong analysis, to the comparative impairment analysis, back to a place-of-the-wrong analysis, as described by the Ninth Circuit in Mazza v. American Honda Motor Co. (10:49 min.)

Supreme Court Weighs Whether the FDCPA Applies to Non-Judicial Foreclosures
On January 7, 2019, the Supreme Court held oral argument in Obduskey v. McCarthy & Holthus LLP, a case analyzing whether the Fair Debt Collection Practices Act applies to non-judicial foreclosures. In this Sound Advice, Mark Rooney, the Section of Litigation FDCPA & TCPA Subcommittee cochair, discusses the key issues in the case. (10:37 min.)

The Battle for "Natural" in 2018
"Natural" will likely be the most litigated word in food advertising cases this year, but there have been recent developments that might change the landscape. This episode discusses an important recent case and proposed legislation. (12:00 min.)

Standing for Unpurchased Products in Class Actions
This Jonathan Udell discusses when plaintiffs in class actions can bring claims involving products that they did not purchase. In general, some courts examine the similarities between the product that the plaintiff purchased and the other products at issue, while other courts consider if the claims will be resolved identically. (09:23 min.)

The CFPB's Pending Class Action Waiver Rule and What Companies are Doing to Prepare
This program covers the CFPB’s pending rule prohibiting class action waivers in arbitration agreements contained in consumer finance contracts. The speaker discusses the rule and what companies are doing to prepare for it. (12:54 min.)

Developments in Data Privacy Class Action Settlements
Angela Sabbe of Navigant Consulting and Paul Karlsgodt of BakerHostetler discuss recent trends in settlements of class actions arising out of data breaches. The discussion covers key recent statistics, settlement structures, current barriers to settlement, and potential future developments. (15:43 min.)

Tips for New Associates to Ensure a Strong First Year
Tips and best practices for new associates during their first year, with advice on how to lay a strong foundation for their legal careers. (6:43 min.)

Rule 1's Duty of Cooperation after the 2015 Amendments
Learn how to satisfy Rule 1's new duty of cooperation as Kathryn Honecker walks through the procedure. (13:07 min.)

Appellate Jurisdiction
Learn how to get your case into the court of appeals before final judgment as the multiple categories of appellate jurisdiction are explained. (11:27 min.)

How to Make the Most out of Your Clinic Experience
Professor Scott Eichhorn talks with law students Jean Strickland and Kevin Shea about their experience as interns at the University of Miami School of Law Investor Rights Clinic. (10:44 min.)


Supreme Court’s Facebook Decision Upends TCPA Litigation Landscape
The Supreme Court’s recent decision in Facebook v. Duguid finally resolved a split among lower courts over how to interpret a key component of the TCPA’s autodialer prohibitions. After the decision, autodialer liability may only be imposed for calls or texts to cell phones made with technology that uses a random or sequential number generator. Our panel of ABA Section of Litigation leaders will analyze the decision and the longer-term impact it may have on the TCPA litigation landscape. (51:45 min.)

Update on Consumer Arbitration Issues
Arbitration issues are alive and well. Courts have settled into their pandemic-era routines and continue examining and issuing decisions on key aspects of the law governing arbitration. Three Section of Litigation leaders discuss the latest updates in arbitration, including the Supreme Court’s recent cert. denial in Blair v. Rent-a-Center; special issues in contract formation; updates on mass arbitration; best practices in contract drafting; and other topics. (47:09 min.)

Consumer Financial Protection Challenges amid COVID-19
Millions of consumers are suffering negative financial consequences because of the COVID-19 pandemic. Federal, state and local governments are enacting legislation or announcing executive orders to attempt to alleviate the negative economic consequences to consumers caused by COVID-19. This Roundtable discusses rapidly evolving issues under the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the Telephone Consumer Protection Act (TCPA) that have arisen during the pandemic. (56:21 min.)

Hot Topics in Social Media Discovery for Litigators
This Roundtable, featuring Magistrate Judge Dana Douglas, ESI and legal technology expert Tom O'Connor, labor and employment litigator Amy Stewart, and commercial litigator Ashley Heilprin discuss hot topics in social media discovery. The discussion includes an overview of the types of “new” social media/electronic data available that may be relevant to particular cases; data collection tips, including crafting and responding to discovery requests; advising clients regarding preservation, discovery, and social media posts in litigation; and planning ahead for how to "get the dirt in." (50:38 min.)

Hot Topics in TCPA Litigation
Overwhelmed by recent TCPA developments? We’ve got you covered. In this Roundtable, we break down all of the latest updates involving the TCPA including:
1. The Supreme Court’s recent decision to review a First Amendment challenge to the TCPA.
2. Recent court decisions examining the definition of an ATDS, and other recent TCPA case law developments.
3. Enactment of the Pallone-Thune TRACED Act, which expands the FCC’s mandate and enforcement powers under the TCPA.
(55:24 min.)

The Evolving Landscape of Litigation Funding
The use of third-party capital to pay for costs related to litigation in return for a portion of the financial judgment, commonly referred to as Litigation Funding, has been increasing. Join Christine Azar, Catherine Rowsey, and Kevin Skrzysowski for a discussion regarding how Litigation Funding is changing the litigation landscape, the direct and indirect impact on litigants, their counsel, and investors, and criticisms of third-party financing. (59:49 min.)

The Evolving Definition of an Automatic Telephone Dialing System under the TCPA
What is an “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 Telephone Consumer Protection Act (TCPA). Courts are divided as to how to define an ATDS as demonstrated by subsequent decisions in the Ninth and Third Circuits, and various district courts. See Marks v. Crunch San Diego, LLC, 904 F.3d 1041(9th Cir. 2018); Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018). This difference of opinion among the courts prompted the FCC to extend the time period for public comment on what constitutes an ATDS, and has created confusion for industry participants and TCPA practitioners. Our panelists will discuss these and other recent case law developments relating to the definition of an ATDS, the FCC rulemaking process, and the implications for TCPA litigation. (60:54 min.)

What’s Next in Class Actions
A discussion exploring how recent and upcoming Supreme Court rulings change the class action landscape this year and beyond. Among the topics discussed are: the pending case before the Supreme Court on arbitration agreements and class action waivers; settlement offer language; opt-out litigation; how Spokeo is impacting cases, and more. (63:04 min.)

Business Development: Expanding Your Opportunities Through Mentoring Relationships
Our esteemed panel of experts and attorneys discuss the importance for young lawyers to seek out appropriate mentors that can help guide them as they develop plans to generate their own business as well as how more experienced attorneys can effectively mentor junior attorneys in this critical area of practice. (65:53 min.)


The information on “Sound Advice” is for discussion purposes only and does not reflect the opinions of the ABA. The information is not legal advice nor a substitute for legal counsel.