April 2019 Archives

Nonjudicial Foreclosures are not Subject to the FDCPA, says the Supreme Court

Until the Supreme Court's recent decision in Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019), if you were an entity engaged solely in the enforcement of security interests on loans, such as through nonjudicial foreclosure proceedings, the federal Fair Debt Collection Practices Act (the "FDCPA") would have been applied to you in some states but not others.  That is because the United States Courts of Appeals were divided on the issue, with the Ninth and Tenth Circuits finding that the Act did not apply, and the Third, Fourth, and Sixth Circuits finding that it did apply.  The Supreme Court resolved that Circuit split last month when it found that businesses engaged solely in security-interest enforcement do not qualify as "debt collectors" under the FDCPA.  

First Circuit Interprets the Rights of Receivers under 12 U.S.C. § 1821(d)(2)(A) in the Federal Deposit Insurance Corporation's Favor

In Zucker v. Rodriguez, No. 17-1749 (1st Cir. 2019), the First Circuit interpreted the rights of Receivers under 12 U.S.C. § 1821(d)(2)(A) in the Federal Deposit Insurance Corporation's favor.

United States Supreme Court to Consider Whether Fair Debt Collection Practices Act Subject to the Discovery Rule

The United States Supreme Court has agreed to consider a case that could resolve a split among the United States Courts of Appeals as to whether the discovery rule applies to the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. ("FDCPA").  Rotkiske v. Klemm, et al., No. 18-328 (U.S., certiorari granted Feb. 25, 2019).

Does The Wage Act Apply To Employment In A Foreign Country?

The answer is: it depends.  A Superior Court recently addressed that issue in Lockley v. Studentcity.com (Suffolk Superior Court, No.201801293-BLS2). Ms. Lockley, a resident of Colorado, brought a putative class action lawsuit alleging violation of the Wage Act against Studentcity.com, Inc. ("Student City"), a foreign corporation doing business in Massachusetts.

Massachusetts Federal Court Finds Mediation Privilege Waivable, Applies "Manifest Disregard" Standard In Med-Arb Case

Last month, one defendant's application to vacate a med-arb award brought about two important developments in ADR case law in Massachusetts.

Business Litigation Session Holds That Memorized Information Derived From Employment Can Violate Confidential Information And Non-Solicitation Clauses

In a novel recent decision, the Business Litigation Session of the Superior Court of Massachusetts held that a financial consultant who had left his job and then allegedly prepared a list of his old firm's clients entirely from memory on his first day with his new employer had violated the non-solicitation and confidential information provisions in his employment agreement with the former employer.  

Giving clarity - and teeth - to a surviving spouse's elective share of the decedent's estate.

Described by the Supreme Judicial Court as "unwieldly and perplexing to apply in most instances," the Massachusetts spousal elective share statute, "is intended to prevent spousal disinheritance, either by inadvertence or design," through allowing "a dissatisfied surviving spouse" to "waive the provisions of a deceased spouse's will and take a statutorily prescribed share of the decedent's estate." Ciani v. MacGrath, 481 Mass. 174, 175, 186 n12 (2019). In Ciani, the SJC attempted both to clarify and fortify the statute, holding in part that it allows a dissatisfied surviving spouse to bring an action to realize the value of his or her share of the decedent's real estate. Where the decedent has left issue (i.e., offspring or lineal descendants), the statute entitles a dissatisfied surviving spouse to elect - in lieu of his or her formal bequest (or lack thereof) - to receive a share of the decedent's estate comprising one-third of the decedent's personal property and one third of the decedent's real property. The SJC focused its analysis on situations in which that share exceeds $25,000 in value, reading the elective share statute to allow a dissatisfied surviving spouse to receive (1) the first $25,000 from the decedent's personal property or, if necessary, from the decedent's real property as well; (2) income from the a trust containing the remaining third of the personal property for life; and (3) an ownership interest the remaining third of the decedent's real estate, for life. 

  • Super Lawyers
  • Best Lawyers | Best Law Firms | U.S.News & World Report | 2019
  • Preeminent AV | LexisNexis Martindale-Hubbell Peer Review Rated For Ethical Standards and Legal Ability