Showing 7 posts from August 2015.

NYC Permitted to Regulate Legal Professionals Performing Debt Collection

The Second Circuit recently issued an opinion in Eric M. Berman, P.C. and Lacy Katzen, LLP v. City of New York, et al., stating that district court erred in ruling that New York State’s authority to regulate attorney conduct preempted a New York City law regulating certain debt collection activities of attorneys (“Local Law 15”). Local Law 15 amended Local Law 65 to add language regarding attorneys and the regulation of debt collection in NYC. See N.Y.C. Admin. Code § 20‐489(a)(5). More ›

If you think it, please don't say it!

In New York, an attorney who asked a female attorney if she was "going through menopause" during a deposition was ordered to pay legal fees to the other attorney in the amount of $1,000 and ordered to complete a continuing legal education course on attorney professionalism and professional conduct. The Judge stated that the attorney's comment was intended to humiliate the female attorney on the basis of her age and gender. The Judge also stated that "when an attorney engages in discriminatory behavior, it reflects not only on the attorney's lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice. This conduct is adverse to the goals of justice and cannot be permitted to find a safe haven in the practice of law." More ›

So you Think you know the Federal Rules of Civil Procedure? ... Think Again.

If you practice in federal court, the time has come to review the Rules. Recently, amendments to the Federal Rules of Civil Procedure, which have been adopted and approved by the U.S. Supreme Court, were submitted to Congress for its consideration. Absent contrary Congressional action, the amendments to the Federal Rules of Civil Procedure will take effect on December 1, 2015. 

Below are some highlights of the changes you should expect to see later this year regarding Federal Rules of Civil Procedure 4, 16, 26, 33, 34, and 37.     More ›

Court Holds that Transactional Lawyers have a Duty to Volunteer Proactive Advice

In Peterson v Katten Muchin Rosenman, LLP, 2015 WL 4092323 (7th Cir. July 7, 2015) the Seventh Circuit Court of Appeals reversed the dismissal of a legal malpractice case brought by a bankruptcy trustee. Rejecting what has sometimes been referred to as the "limited engagement defense", the Court held the firm had an affirmative duty to advise on the risks of entering a purportedly securitized factoring relationship without sufficient security agreements to both verify and collect against the underlying collateral.   More ›

AMEX Judge Rejects Class Settlement and Class Counsel's Fee Motion

Last week, the New York federal judge in the AMEX antitrust class action litigation rejected the Class Plaintiffs' Motion for Final Approval of the Class Settlement Agreement with AMEX, stating that the conduct of co-lead Plaintiffs' Class Counsel F, "smacks of blatant collusion." More ›

Federal Encroachment on Lawyer Regulation (cont.)

Only two weeks after the Miljkovic decision, the U.S. District Court for the Northern District of Georgia relied upon Miljkovic in support of its 70-page ruling denying a motion to dismiss in Consumer Financial Protection Bureau v Frederick J. Hanna & Associates, P.C. et al, __ F. Supp. 3d ___, 2015 WL 4282252 (N.D. Ga. July 14, 2015). The Hanna case is important, not only for the debt collection industry and debt collection lawyers, but also more broadly for such things as States Rights, separation of powers, federal regulatory oversight over lawyers, as well as how expansive is the oversight and regulatory reach of the CFPB — the UBER Consumer Rights Regulator.   More ›

Federal Legislative Encroachment of Lawyer Regulation: Who will stop the Increasing Oversight of Debt Collector Lawyers, and Properly Apply Litigation Immunity?

On June 30, 2015, the Eleventh Circuit Court of Appeals published an expansive ruling interpreting the Fair Debt Collection Practices Act (“FDCPA”).  See  Miljkovic v. Sharfritz and Dinkin, P.A., Case No. 14–13715, 2015 WL 3956570 (11th Cir. 2015) (attorney’s sworn reply filed in state court garnishment proceeding can be actionable as a violation of the FDCPA). In short, the court held that the FDCPA civil liability sections 1692d (harassing, abusive or oppressive conduct), 1692e (false or misleading misrepresentations) and 1692f (unfair and unconscionable practices) can be triggered through the filing of pleadings and papers in court — even if they are only communications with a consumer’s lawyer and not the consumer. That may be a somewhat unremarkable proposition by itself, even if it does run counter to state laws interpreting litigation privilege and immunity, such as applied under Florida law. See and compare Heintz v. Jenkins, 514 U.S. 291, 294 (1995); Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007); Trent v. Mortgage Electronic. Registration Systems, Inc., 288 Fed. Appx. 571, 572 (11th Cir. 2008); and Gaisser v. Portfolio Recovery Associates, LLC, 571 F.Supp. 2d 1273 (S.D. Fl. 2008).   More ›

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