AMERICANS WITH DISABILITIES ACT-“REGARDED AS” THEORY-JURY VERDICT IN CIVIL RIGHTS

April 8th, 2019 by Rieders Travis in Miscellaneous

Robinson v. First State Cmty. Action Agency, 2019 3rd Cir. LEXIS 9503 (April 1, 2019) Fuentes, J.-Tamra Robinson was told by her manager Karen Garrett that her work performance was so poor that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Taking Garrett’s words seriously, Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner, and she was advised to focus on improving her performance. Weeks later, she was fired. During the litigation in the District Court between Robinson and her former employer, First State Community Action Agency, Robinson acknowledged that she could not prove she was dyslexic. She proceeded on a different theory, that she was perceived or regarded as dyslexic by her employer and was therefore entitled to a reasonable accommodation the same way someone who was dyslexic…

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTOR-ENFORCEMENT OF SECURITY INTERESTS

April 1st, 2019 by Rieders Travis in Miscellaneous

Obduskey v. McCarthy & Holthus, LLP, 2019 U.S. LEXIS 2090 (March 20, 2019) Breyer, J.  The Fair Debt Collection Practices Act regulates “debt collector[s].” 15 U.S.C. §1692a(6); see 91 Stat. 874, 15 U.S.C. §1692, et. seq. A “debt collector,” the Act says is “any person … in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). This definition, however, goes on to say that “[f]or the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt collector] also includes any person … in any business the principal purpose of which is the enforcement of security interests.” Ibid. The question before us concerns this last sentence. Does it mean that one principally involved in “the enforcement of security interests” is not a debt collector (except “[f]or the purpose of section 1692f(6)”)? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to §1692f(6) in addition to the Act’s other provisions? This…

UNFAIR TRADE PRACTICES & CONSUMER PROTECTION LAW-SUBSURFACE MINERAL RIGHTS-ATTORNEY GENERAL’S ACTION-ANTI-TRUST LAW

March 28th, 2019 by Rieders Travis in Miscellaneous

Anadarko Petroleum Corp. v. Commonwealth, 2019 Pa. Cmwlth. LEXIS 236 (March 15, 2019) Ceisler, J.-In these combined interlocutory appeals by permission, we address two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (Law or UTPCPL). The first is whether Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), can bring a cause of action against lessees pursuant to the UTPCPL, due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners. The second issue is whether the Attorney General can bring a cause of action against those lessees, pursuant to the UTPCPL, for alleged violations of antitrust law. The Court of Common Pleas of Bradford County (Trial Court) answered both questions in the affirmative; however, after thorough consideration, we affirm in part and reverse in part. We hold that the Attorney General was permitted to file a UTPCPL-based lawsuit against Appellants, but can only pursue antitrust claims through the UTPCPL where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either…

FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003-STANDING

March 28th, 2019 by Rieders Travis in Miscellaneous

Ahmed Kamal v J. Crew Group, Inc.; J. Crew, Inc.; J. Crew Intermediate, LLC; J. Crew International, Inc.; J. Crew Operating Corp.; J. Crew Services, Inc.; Chinos Acquisition Corp.; Chino’s Holdings, Inc., 2019 3rd Cir. 2018 (March 8, 2019) Scirica, J.-Enacted to combat credit card and identity theft, the Fair and Accurate Credit Transactions Act of 203 (FACTA) prohibits anyone who accepts credit or debit cards as payment from printing more than the last five digits of a customer’s credit card number on the receipt. 15 U.S.C. §1681c(g). Plaintiff-Appellant Ahmed Kamal brought this suit after receiving three receipts from Defendants-Appellees J. Crew Group, Inc. (and related entities) that included both the first six and last four digits of his credit card number. The District Court dismissed Kamal’s suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing based on its determination that Kamal did not suffer a concrete injury from the alleged violation. We agree, and we will affirm on that issue. We will vacate and remand, however, for the District Court to dismiss Kamal’s complaint without prejudice.

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTORS-PRINCIPAL PURPOSE

March 1st, 2019 by Rieders Travis in Miscellaneous

Barbato v. Greystone Alliance, LLC, No. 18-1042 (3d Cir. February 22, 2019) Krause, C.J. The Fair Debt Collection Practices Act (“FDCPA”) protects consumers from abusive, deceptive, or otherwise unfair debt collection practices.  15 U.S.C. § 1692(a). It applies to “debt collectors,” defined alternatively as those engaged “in any business the principal purpose of which is the collection of any debts” and those “who regularly collect[]” debts “owed or due another.” Id. § 1692a(6). This appeal concerns only the first definition and requires us to determine whether an entity that acquires debt for the “purpose of . . . collection” but outsources the actual collection activity qualifies as a “debt collector.” The District Court held that it does, and we agree: an entity that otherwise meets the “principal purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting. We therefore will affirm.

CONFLICTS OF LAW-CHOICE OF LAW-FORUM SELECTION CLAUSE-INTENDED THIRD PARTY BENEFICIARY TO THE CONTRACT

November 28th, 2018 by Rieders Travis in Miscellaneous

In re McGraw-Hill Global Educ. Holdings, LLC, 2018 U.S. App. LEXIS 32931 (3d Cir. November 21, 2018) Smith, C.J.  These consolidated mandamus petitions require us to decide whether two professional photographers bringing separate copyright infringement actions are bound by a forum selection clause in contracts they did not sign. We conclude that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Our conclusion means that one District Court got it right, and the other got it wrong. But mandamus is an extraordinary remedy. Because the erring District Court’s mistakes were not clear or indisputable, we decline to issue the writ. A non-signatory may be bound by a contractual forum selection clause if he is an intended third-party beneficiary to the contract. DuPont, 269 F.3d at 195 (citing Coastal Steel Corp., 709 F.2d at 202–04). The New York Court of Appeals has adopted the Restatement (Second) of Contracts for determining third-party beneficiary status. Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (citing Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 485 N.E.2d 208,…

CONDEMNATION-GAS LINES

November 15th, 2018 by Rieders Travis in Miscellaneous

Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres, 3d Cir. 2018 LESIX 30669 (October 30, 2018) Roth, J. Congress may grant eminent domain power to private companies acting in the public interest. This appeal requires us to determine the limits on Congress’s grant of eminent domain power to private companies building gas lines under the Natural Gas Act (NGA), 15 U.S.C. §717f(h). The NGA gives natural gas companies the power to acquire property by eminent domain, but it provides only for standard eminent domain power, not the type of eminent domain called “quick take” that permits immediate possession. The District Court granted a preliminary injunction to Transcontinental Gas Pipe Line Company, which effectively gave the company immediate possession of certain rights of way owned by appellant landowners. The landowners claim that granting immediate possession violated the constitutional principle of separation of powers because the taking of property by eminent domain is a legislative power and the NGA did not grant “quick take.” We disagree and hold that the District Court’s order did not violate the principle of separation of powers because Transcontinental properly sought and obtained the…

PREEMPTION-AIRCRAFT LITIGATION

November 6th, 2018 by Rieders Travis in Miscellaneous

Jill Sikkelee, Individually and PR for Estate of David Sikkelee, deceased v. Precision Airmotive Corp., et al, 2018, 3rd Cir. (October 25, 2018), Shwartz, J.-David Sikkelee died in a plane crash, and his wife, Plaintiff Jill Sikkelee, brought state-law strict liability and negligence claims against the engine’s manufacturer, AVCO Corporation, and its Textron Lycoming Reciprocating Engine Division (“Lycoming”), among other defendants. Sikkelee alleges that the engine has a design defect. We previously held that Sikkelee’s state-law claims are not barred based on the doctrine of field preemption, but we remanded to allow the District Court to consider whether they are barred under conflict preemption. Sikkelee v. Precision Airmotive Corp. (Sikkelee II), 822 F.3d 680 (3d Cir. 2016), cert. denied, AVCO Corp. v Sikkelee, 137 S. Ct. 495 (2016). The District Court concluded the claims are conflict-preempted and that, even if they were not, Lycoming is entitled to summary judgment on Sikkelee’s strict liability and negligence claims based on Pennsylvania law. Sikkelee v. AVCO Corp. (Sikkelee III), 268 F.Supp. 3d 660 (M.D. Pa. 2017). The Court also revisited an earlier ruling and granted summary judgment in favor of Lycoming on Sikkelee’s…

RICO-RACKETEERING ACTIVITY COMMITTED ABROAD

October 17th, 2018 by Rieders Travis in Miscellaneous

Humphrey v. GlaxoSmithKline PLC, 2018 U.S. App. LEXIS 27443 (September 26, 2018) McKee, J.  Section 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, creates a private right of action for a plaintiff that “is injured in his (or her) business or property” as a result of conduct that is proscribed by the statute. In RJR Nabisco, Inc. v. European Community, the Supreme Court determined that, although a litigant may file a civil suit against parties for racketeering activity committed abroad, § 1964(c)’s private right of action is only available to a litigant that can “allege and prove a domestic injury to its business or property.” In this case of first impression for this court, we must decide whether Plaintiffs pled sufficient facts to establish that they suffered a domestic injury under § 1964(c). For the reasons that follow, we will affirm the District Court’s judgment that they have not. 

UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW-NURSING HOMES-MISLEADING STATEMENTS

October 17th, 2018 by Rieders Travis in Miscellaneous

Commonwealth v Golden Gate Nat’l Senior Care, LLC, 2018 Supreme Court of PA LEXIS 5018 (September 25, 2018) Donohue, J. The Office of the Attorney General (“OAG”), on behalf of the Commonwealth, filed suit against more than two dozen nursing homes and their parent companies (collectively, “Appellees), alleging violations of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. §§ 201-1-201-9.3 (“UTPCPL”), and unjust enrichment. Upon consideration of Appellees’ preliminary objections, the Commonwealth Court dismissed the claims and this appeal followed. For the reasons discussed herein, we find that the dismissal of the UTPCPL claim was improper, but the dismissal of the unjust enrichment claim was proper because the claim was filed prematurely. Accordingly, we reverse the Commonwealth Court’s order and remand for further proceedings. Appellees are individual nursing homes located throughout Pennsylvania as well as their affiliated companies and parent entities. On July 1, 2015, the OAG filed a complaint and petition for injunctive relief in the Commonwealth Court’s original jurisdiction alleging violations of the UTPCPL and unjust enrichment. The complaint named the Parent Companies and fourteen Facilities. Following the filing of preliminary objections, the OAG filed…