Philadelphia Trial Lawyer Max Kennerly : Business and Commercial Litigation : Civil Attorney : The Beasley Firm : Philadelphia Pennsylvania

The United States District Court for the Eastern District of Pennsylvania punts an easy one:

Counts I and II of the complaint arise under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et seq., Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1639 and Regulation Z of the Federal Reserve Board ("Regulation Z"), 12 C.F.R. §§ 226.1 et seq. Plaintiff seeks rescission of the loan transaction and actual and statutory damages. ...

Under TILA, a borrower has the right to rescind certain consumer credit transactions [either until midnight of the third business day or, if the consumer was not provided the rescission forms, within 3 years or delivery of those forms] ...

Regulation Z requires the creditor to deliver two copies of the notice of right to rescind to each consumer entitled to rescind and specifies the information that the creditor must include in the notice.

...

Defendants believe plaintiff's rescission claim is untimely because the three-day limitations period under 15 U.S.C. § 1635 (a) applies and plaintiff failed to notify them of her intention to rescind until January 9, 2007. Defendants claim to have complied with 12 C.F.R. § 226.23 (b) (1) by delivering to plaintiff two copies of the required rescission form on January 22, 2004. ...

Defendants support their motion for partial summary judgment with evidence that plaintiff received two copies  of the required rescission form. Exhibit C, attached to Defendants' memorandum of law, is a rescission form dated January 22, 2004 and titled "Notice of Right to Cancel." ... Ms. Gonzales' signature appears below the following sentence: "The undersigned each acknowledge receipt of two completed copies of this Notice of Right to Cancel." Plaintiff does not deny it is her signature.

Counsel for plaintiff contends that, contrary to the written acknowledgment, only one copy of the Notice of Right to Cancel "wound up in the hands of Plaintiff, the borrower." (Plaintiff's Memorandum at 13.) TILA addresses the effect of written acknowledgments of receipt, such as the Notice of Right to Cancel  [*7] produced by Defendants:

Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this title ... does no more than create a rebuttable presumption of delivery thereof.

15 U.S.C. § 1635 (c). Plaintiff's written acknowledgment of the Notice of Right to Cancel creates the presumption that plaintiff received two copies of the document. ...

On a motion for summary judgment, the nonmoving party must come forward with evidence setting forth specific facts showing that there is a genuine issue for trial. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Plaintiff has failed present evidence sufficient to rebut the presumption of delivery. Absent from the record is any sworn statement from Ms. Gonzales or other witness that plaintiff received one copy rather than two. Plaintiff relies entirely on the assertions of counsel and the Closing Checklist. No reasonable jury could conclude, on the basis of the Closing Checklist alone, that plaintiff received one copy rather than two. The three-day limitations period under 15 U.S.C. § 1635 (a) applies and commenced on January 22, 2004, the date plaintiff received the Notice of Right to Cancel. Plaintiff is not entitled to rescission because her letter demanding rescission on January 9, 2007 was untimely.

Gonzales v. CIT Group/Consumer Fin., Inc. (E.D.PA, October 30, 2008, Shapiro, J.).

And just like that, the Truth In Lending rescission claim and all the other pendant federal claims are dismissed, with the state law claims remanded back to state court.

The plaintiff's counsel apparently made a complicated argument relying upon words in the agreement itself that arguably reflected their position that the plaintiff had only received one copy.

But there was no need to go down that road: all they needed was an affidavit from the plaintiff saying that she had only received one copy. That's all. At that point, it would've been a fact issue for the jury and would have survived summary judgment.

Federal Rule of Civil Procedure 56(e) provides for exactly this situation:

(e) Affidavits; Further Testimony.

(1) In General.

A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits.

(2) Opposing Party's Obligation to Respond.

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Keep that in mind the next time you get a motion for summary judgment saying the evidence revealed in discovery failed to meet an essential element of your claim: odds are your client or another witness can fill that gap based on their own recollection.

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A Pennsylvania insurance coverage / bad faith question:

I bought my home 5 years ago from estate.  Now, I'm selling my home, the buyer's title insurance company found 3 problems, including a tax lein of 55.00 plus penalties.  My title insurance company offered ademity letter to new title insurance company.  They don't want that, they want problems resolved.  My title insurance company says too bad.  Not worth the money to find my file.  They don't know whether claims are valid or not.  Will not resolve them or see if they need to be resolved.  Won't even look at file!  This seems wrong.  What should I do?  We had a closing date of Sept.29 that will probably have to be moved.  May lose sale.  Do I need a lawyer?

And my response:

You should speak with a plaintiff's attorney experienced in bringing bad faith claims against insurance company.

When an insurance company breaches the terms of the insurance policy the insured can bring a claim for breach of contract and recover the damages resulting from the insurance company's breach. A number of title insurance policies include a requirement that the title insurance company actively work to resolve title issues, and every one I've seen requires the title insurance company at least pay for all damages resulting from such title issues, up to the policy limits. It sure seems like your title insurance company is refusing to do that, which is a breach.

Moreover, in Pennsylvania, every insurance company has a legal duty to promptly and reasonably evaluate and adjust claims in good faith. If they don't, there is a specific legal claim available against them which can include the award of attorneys fees, interest and punitive damages. It does not seem like your claim has been evaluated fairly.
 

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A victory for open governance and consumer safety — there's no good reason to keep this information from the public. Here's the current list:

 

Potential Signals of Serious Risks/New Safety Information Identified by the Adverse Event Reporting System (AERS) January - March 2008

Product Name: Active Ingredient (Trade) or Product Class	Potential Signal of Serious Risk/New Safety Information
Arginine Hydrochloride Injection (R-Gene 10)	Pediatric overdose due to labeling / packaging confusion
Desflurane (Suprane)	Cardiac arrest
Duloxetine (Cymbalta)	Urinary retention
Etravirine (Intelence)	Hemarthrosis
Fluorouracil Cream (Carac) and Ketoconazole Cream (Kuric)	Adverse events due to name confusion
Heparin	Anaphylactic-type reactions
Icodextrin (Extraneal)	Hypoglycemia
Insulin  U-500 (Humulin R)	Dosing confusion
Ivermectin (Stromectol) and Warfarin	Drug interaction
Lapatinib (Tykerb)	Hepatotoxicity
Lenalidomide (Revlimid)	Stevens Johnson Syndrome
Natalizumab (Tysabri)	Skin melanomas
Nitroglycerin (Nitrostat)	Overdose due to labeling confusion
Octreotide Acetate Depot (Sandostatin LAR)	Ileus
Oxycodone Hydrochloride Controlled-Release (Oxycontin)	Drug misuse, abuse and overdose
Perflutren Lipid Microsphere (Definity)	Cardiopulmonary reactions
Phenytoin Injection (Dilantin)	Purple Glove Syndrome
Quetiapine (Seroquel)	Overdose due to sample pack labeling confusion
Telbivudine (Tyzeka)	Peripheral neuropathy
Tumor Necrosis Factor (TNF) Blockers	Cancers in children and young adults

As the FDA says:

 

The table below lists the names of products and potential signals of serious risks/new safety information that were identified for these products during the period January - March 2008 in the AERS database. The appearance of a drug on this list does not mean that FDA has concluded that the drug has the listed risk. It means that FDA has identified a potential safety issue, but does not mean that FDA has identified a causal relationship between the drug and the listed risk. If after further evaluation the FDA determines that the drug is associated with the risk, it may take a variety of actions including requiring changes to the labeling of the drug, requiring development of a Risk Evaluation and Mitigation Strategy (REMS), or gathering additional data to better characterize the risk.

FDA wants to emphasize that the listing of a drug and a potential safety issue on this Web site does not mean that FDA is suggesting prescribers should not prescribe the drug or that patients taking the drug should stop taking the medication. Patients who have questions about their use of the identified drug should contact their health care provider. FDA will complete its evaluation of each potential signal/new safety information and issue additional public communications as appropriate.

So now you know.

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Well, this sounds fair:

Last week, the Senate Judiciary Committee gave the green light to S. 3325, "The Enforcement of Intellectual Property Act of 2008." Among other things, this intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA’s intellectual property rights enforcement work for them—at tax payers’ expense.

We've setup Cause Caller to help you talk to Senators that we believe would be receptive to the message, but you should call your Senators, too.

The bill is already out of committee and could get sign-off from Senators for streamlined passage as soon as today, so we need you to call in now!

The bill is opposed by (at least) the following:

American Association of Law Libraries
American Library Association
Consumer Federation of America
Consumers Union
Digital Future Coalition
Electronic Frontier Foundation
Essential Action
IP Justice
Knowledge Ecology International
Medical Library Association
Public Knowledge
Special Libraries Association

Click the first link to contact your Senator and ask if they'll fund and pursue your personal civil litigation, too, in lieu of catching and convicting child predators, terrorists, gangsters, and pension fund embezzlers. Don't forget to ask the same for me, too.

Or just ask they call the whole thing off.

(via Boing Boing)

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Morales v. Sun Constructors, Inc., 2008 U.S. App. LEXIS 18513 (3d Cir., August 28, 2008) reiterated an important point for non-lawyers to know:

The Supreme Court has observed: “It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained.” Upton v. Tribilcock, 91 U.S. 45, 50, 23 L. Ed. 203 (1875). The “integrity of contracts demands” that this principle “be rigidly enforced by the courts.” 1 Richard A. Lord, Williston on Contracts § 4:19 (4th ed. 2008). As one noted treatise explains:

According to the objective theory of contract formation, what is essential is not assent, but rather what the person to whom a manifestation is made is justified as regarding as assent. Thus, if an offeree, in ignorance of the terms of an offer, so acts or expresses itself as to justify the other party in inferring assent, and this action or expression was of such a character that a reasonable person in the position of the offeree should have known it was calculated to lead the offeror to believe that the offer had been accepted, a contract will be formed in spite of the offeree's ignorance of the terms of the offer. The most common illustration of this principle is the situation when one who is ignorant of the language in which a document is written, or who is illiterate, executes a writing proposed as a contract under a mistake as to its contents. Such a person is bound, in the absence of fraud, if the person does not require the document to be read to him … .

Id. See New York Life Ins. Co. v. Kwetkauskas, 63 F.2d 890, 891 (3d Cir. 1933) (recognizing that “[i]t is true that an illiterate man may bind himself by contract by negligently failing to learn the contents of an instrument which he has executed”); Hoshaw v. Cosgriff, 247 F. 22, 26 (8th Cir. 1917) (holding that every contracting party has the duty “to learn and know the contents of a contract before he signs and delivers it”). Arbitration agreements in the employment context are not exempt from this principle. ...

Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable. ...

Morales is not claiming fraud, see App. 78, 95, and he is not alleging that Sun misrepresented the contents of the Agreement to him. Cf. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 538 (5th Cir. 2003) (recognizing that “[i]t is a widely accepted principle of contracts that one who signs or accepts a written instrument will normally be bound in accordance with its written terms,” and that a defendant,  “illiterate or not, would be bound by the terms of the arbitration agreements,” but remanding for adjudication of a claim of fraud in the inducement); Pimpinello v. Swift & Co., 253 N.Y. 159, 163, 170 N.E. 530 (1930) (stating that “[i]f the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party … unless the signer be negligent, the writing is void”) (emphasis added). Fn1 Further, there is no evidence that Sun tried to hide the arbitration clause; indeed, it comprised about one-half of the Agreement.

Here's Footnote 1:

The dissent analogizes this case to American Heritage Life Insurance Company v. Lang. Unlike Morales, however, the illiterate plaintiff in Lang asked the defendant's agent to explain each of the documents Lang signed, and he submitted evidence that the agent deliberately mislead him as to what he was signing by claiming that the papers were loan or insurance documents rather than an arbitration agreement.

It bears repeating: by and large, only explicit fraud will relieve someone from a material contract condition. If you're going to take someone's word for something, make sure you actually get their word. Silence usually won't work for fraud.

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43(B)log recounts the delicious facts of Pom Wonderful LLC v. Purely Juice, Inc. (C.D. Cal., July 17, 2008).

Apparently there's a law that says your “100% pomegranate juice” that's “all natural” with “NO added sugars or sweeteners” can't be made entirely of corn syrup and fruits other than pomegranate.

Who knew?

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In today's Wall Street Journal there's a great lesson on poor advocacy.

The article's text is indented and italicized.

Bad Legal Argument 1: Rushing Into a Judo Flip

There's a hidden tax imposed on companies that do business in the United States that hinders their international competitiveness and eventually filters down to consumers.

This "tax" takes the form of certain class-action attorneys who, like a roving shadow, look for any opportunity to claim that a business has done something wrong -- for example, provided misleading consumer advertising -- without concern for whether any member of the public actually thinks he or she was harmed. To avoid high legal fees and litigation distractions, corporations very often settle, paying out millions of dollars.

Bolding mine. When choosing themes and images ("if the gloves don't fit..."), always anticipate what happens to your themes and images in your opponent's hands, like so:

There's a hidden tax imposed on customers in the United States ... this "tax" takes the form of the widespread damage caused every year by unsafe, defective or deceptive products. Numerous business, like pickpockets, look for ways to rip off the public in small ways -- for example, providing misleading consumer advertising -- without concern for the cost it imposes upon consomers who are hurt, disappointed, or cheated by these products.To avoid high legal fees and litigation distractions in light of the damages, which are small in individual cases but large in the aggregate, customers usually don't sue even when they have strong claims. That's why class actions are so important.

Bad Legal Argument 2: Failing to Answer "So What?"

What courts often do in these cases [where not all the money is claimed by plaintiffs] is distribute the money, in an ad hoc manner, to people who are not even in the class, who would not have had standing to sue, and who were never even alleged to have been wronged. This alternative remedy is known as cy pres, which translates to "as near as possible," and in theory is supposed to benefit class members.

But often these windfalls go to charities with little or no relationship to what was at issue in the original dispute. A good illustration is a recent California case involving debt collection practices, in which the unclaimed proceeds were designated for distribution to a legal aid society to use in representing or educating consumers .

While a particular fact may bother you to no end -- a completely blank medical record, a deleted email, the defendant blaming an empty chair for what happened -- it doesn't necessarily mean anything to the rest of us. Here's a simple response:

After extensive research, these two litigators, published in the WSJ, couldn't find a more galling example than a legal aid society receiving funds from a wrongful debt collection practices lawsuit. So what? What's wrong with that? What better way to help society prevent the exact wrongdoing that happened in the case?

Bad Legal Argument 3: Getting It Wrong

In our view, this as-near-as-possible remedy in class actions is defective. The Constitution provides for the resolution of "cases" and "controversies" between aggrieved parties. Courts are empowered to resolve those specific disputes, and not to transfer a corporate defendant's assets to an outside organization that has not appeared before the court. The Constitution does not give courts the authority to satisfy notions of "deterrence" by giving institutions like legal aid societies or universities windfalls when those entities are not even parties to the lawsuit.

In most cases, you will have a flash of brilliance where suddenly a difficult issue will become simple and obvious.

When that happens, write your brilliant insight down. Then go to bed and look at it again the next day. If you can, look at it again next week. Or else you get what happened here.

Class actions are, except where Congress has specifically created federal jurisdiction in an attempt to help businesses, state creations. Article III defines the powers and limitations of "the judicial power of the United States."

That's a limitation on federal judicial power. There's no federal limitation on state court power, except where that power violates rights guaranteed by the federal Constitution.

Perhaps that's what the authors meant, that class actions are a due process violation. Except that's not what they said. They said the Constitution didn't empower courts to act that way; well, the Constitution doesn't empower state courts to do anything, the states are sovereign in their own right.

Bad Legal Argument 4: Pretending the Complex is Simple

Let's assume they had done that the right way, and had argued class actions were a due process violation. They would still be open to this attack:

After 232 years of judicial, congressional, presidential and state efforts to interpret the Constitution, including a civil war, these authors have figured it all out in three sentences, without a single reference to anything that transpired before them, not even the hundreds of cases specifically raising their critique, nor the dozens of judicial opinions dismissing that same critique. Do we now decide the law by looking neither to the past nor careful reasoning for guidance, but instead by simply declaring "in our view" before our conclusion?

Perhaps they should have perused the legal scholarship network on SSRN for a little bit before publishing that. "'Class action' AND 'due process'" returns 378 hits.

Whatever else goes your way, I can guarantee that, if you don't put in the time to really prepare and test your argument, something will go wrong. And that's the heart of poor advocacy.

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A great post by f/k/a about the wrongfulness, perhaps even unethical nature, of debt negotiation fees, most of which are excessive in light of the work performed, work that could be done by the client themselves.

If you've ever thought about hiring one of those firms, read this article.

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Drug and Device Law has an exceptionally detailed post about the new voluntary PhRMA guidelines, along with dozens of cases holding that such guidelines don't create negligence per se liability standards, particularly not retroactively.

But what about ordinary, post hoc negligence? Can voluntary industry codes be relevant to the standard of care?

Absolutely! For example, the Eastern District of Pennsylvania case they cited, Knarr v. Chapman Sch. of Seamanship, 2000 U.S. Dist. LEXIS 5351 (E.D.Pa. 2000)(interpreting Florida law), rejected the per se application of ANSI standards, but was happy to cite "Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist.Ct.App.Fl. 1994)(violation of ANSI standards is "merely evidence of negligence.)."

The same is true in Pennsylvania, where evidence of industry standards is clearly relevant to the reasonableness of a manufacturer's conduct, and is thus admissible, except in strict liability cases where reasonableness is irelevant. Lewis v. Coffing Hoist Div., Duff-Norton, 515 Pa. 334, 528 A.2d 590, 594 (Pa. 1987). As you'd expect, if the plaintiff brings in industry standards, so too can the defendant. Daddona v. Thind, 891 A.2d 786, 807 (Pa. Commw. Ct. 2006).

As for whether its plaintiffs or defendants are engaging in what D&D Law calls "foolishness," you can bet your bottom dollar that every PhRMA defendant from here on out will make their compliance with these new standards the centerpiece of future defenses, and that PhRMA took great pains to ensure these codes were easy to comply with and would play well in front of judges and juries.

Seriously, look at these codes and consider the state of the industry in 2008:

Promotional materials should:
(a) be accurate and not misleading;
(b) only make substantiated claims;
(c) reflect the balance between risks & benefits; and
(d) be consistent with all FDA requirements.

...

Decisions regarding the selection or retention of [health care providers] as consultants should be made based on defined criteria such as general medical expertise and reputation, or knowledge and experience regarding a particular therapeutic area.

...

Companies should not use consultant arrangements as inducements or rewards for prescribing a particular medicine or course of treatment.

...

Train representatives to ensure general science and product-specific information so that representatives can provide accurate, up-to-date information, consistent with FDA requirements.

That's voluntary? It should be mandatory. No praise will come from these quarters, I don't consider it a "good deed" to encourage member companies follow FDA requirements. It's the law.

In 2008 we have to remind (it wasn't part of the old code!) pharmaceutical companies not to mislead people with promotional materials. What a shame.

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A Pennsylvania / Federal consumer law question on LawGuru:

My husband & I took our 1st mortgage with [lender1] and our 2nd mortgage with [lender2] and refinanced them into 1 with [lender2] on 4/21/08.  In June we started getting calls that our 2nd mortgage is past due.  We called [lender2] and they said it was a common problem, just ignore it.  We continued getting calls and a letters from an attorney.  WE have the HUD form that says it is paide, but there is an internal problem in the system that says otherwise.  No one knows how to fix it.  We have continued to call [lender2] and they don't return our calls.  WE have to call them back.  We get excuse after excuse.  My husband has lost hours at his job trying to fix them problem, and I, a teacher, have also.  Is there anything ''legally'' that we can do.  I have all calls documented with dates and times, along with several emails.  Four months have almost past. We need help!

My fair debt collection practices response:

You asked about a creditor repeatedly demanding payment of a nonexistent debt.

The Federal Fair Debt Collection Practices Act prohibits creditors from attempting to collect on debts they know are erroneous. As the Federal Trade Commission points out on their website, "A collector may not contact you if, within 30 days after you receive the written notice, you send the collection agency a letter stating you do not owe money. However, a collector can renew collection activities if you are sent proof of the debt, such as a copy of a bill for the amount owed."

In addition to your phone calls, you should send everyone who attempts to collect that debt a written demand they cease all collection activities. If that still doesn't work, you have two options (which you can use simultaneously): sue in Court, where you can receive up to $1,000 for the violation, and/or complain to the FTC at www.ftc.gov.

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Sounds delicious! Oh, wait:

According to CNN, “starting Monday, health inspectors will halt the shipment of ingredients common to Mexican cuisine from Mexico to the United States” – this will include cilantro, jalapeno peppers, Serrano peppers, scallions and bulb onions. I assume that it may still include tomatoes?

As for illnesses, the CDC reports that 943 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 40 states, the District of Columbia, and Canada. Nearly 150 have been hospitalized. The number of ill persons identified in each state is as follows: Alabama (2 persons), Arkansas (10), Arizona (45), California (8), Colorado (12), Connecticut (4), Florida (2), Georgia (24), Idaho (4), Illinois (93), Indiana (14), Iowa (2), Kansas (17), Kentucky (1), Louisiana (1), Maine (1), Maryland (29), Massachusetts (22), Michigan (7), Minnesota (8), Missouri (12), New Hampshire (4), Nevada (11), New Jersey (9), New Mexico (98), New York (28), North Carolina (10), Ohio (7), Oklahoma (23), Oregon (10), Pennsylvania (8), Rhode Island (3), South Carolina (1), Tennessee (8), Texas (356), Utah (2), Virginia (29), Vermont (2), Washington (4), Wisconsin (10), and the District of Columbia (1). One ill person is reported from Ontario, Canada. 

Thanks for ruining everything, Salmonella Blog.

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43(B)log  refers us to a NYT feature on doctors who give consumers incentives to post doctor-created ads as their own contributions to YouTube:

Trouble is, most marketing videos don’t announce that patients are compensated. Take Jiffy Reed, who posed for a video tribute on YouTube about Dr. Daniel Noor, a New York-based cosmetic dentist who straightened her smile with invisible braces. “I was so happy, I would have done anything,” Ms. Reed said. What the video doesn’t mention is that her physician whitened her teeth at no charge; it usually costs about $700.

Exactly right. Although the article quotes a couple physicians who generally object to unseemly nature of such advertisements, the core problem here is not a medical issue, it's a consumer issue. Paid endorsements used for advertising that aren't identified as such are generally illegal, and there is no medical exception to that.

My own view is that this problem, like a number of problems in the medical profession, are the result of lackadaisical enforcement by most state Boards of Medicine. If even just a handful of physicians were reprimanded for using paid endorsements that were made to appear spontaneous, there likely would not be much of a problem anymore.

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