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GOOD FAITH AND THE RESTATEMENT OF THE LAW OF CONSUMER CONTRACTS.
Today in the American Law Institute Meeting of Advisers and Members Consultative Group, we will be discussing "good faith" in the Preliminary Draft No. 4 (October 2021) of the Restatement of the Law, Consumer Contracts.
The ALI Reporters wrote the current Preliminary Draft of the Consumer Contracts Restatement to follow the Uniform Commercial Code § 1-201(b)(20), in which the term, "good faith," is defined as "honesty in fact and the observance of reasonable commercial standards of fair dealing." This statute has been enacted without substantive change in many jurisdictions, including in Florida in this link provided by the Florida Legislature, Fla. Stat. § 671.201(20).
The Reporters of the Consumer Contracts Restatement wrote that this definition is not intended to change the meaning of the implied covenant of good faith and fair dealing. That being said, it is still open to question what role this definition may play in cases of consumer insurance contracts.
Please read the disclaimer. ©2021 Dennis J. Wall. All rights reserved.
Posted by Dennis Wall on November 11, 2021 at 10:28 AM in American Law Institute, Consumer Protection, Contract, Good Faith | Permalink | Comments (0)
Tags: #ConsumerContractsRestatement, #GoodFaithAndFairDealing, #HonestyInFact, #ReasonableCommercialStandardsOfFairDealing, #UCCSection1-201(20)
IT'S NATIONAL CONSUMER PROTECTION WEEK!
Consumer Rights and Responsibilities (Gridview_imagefull / Florida Department of Agriculture and Consumer Services)
Check out National Consumer Protection Week events by copying and pasting this link into your browser: https://uspirgedfund.org/blogs/blog/usp/national-consumer-protection-week-2021:
Mon Report on CFPB.
Tues ID theft and fraud
Wed Filing taxes
Thurs Robocalls
Fri Auto loans
Sat Price gouging
U.S. PIRG Education Fund identifies as an independent, nonpartisan 501(c)(3) organization.
Posted by Dennis Wall on March 01, 2021 at 10:47 AM in Consumer Protection | Permalink | Comments (0)
Tags: #CFPB, #NationalConsumerProtectionWeek, #PIRG
ASKING LIFE INSURANCE COMPANIES FOR GOOD FAITH IN A PANDEMIC.
(Image via Consumer Federation of America)
There is a reported contagion spreading throughout Europe. It is not the coronavirus itself, but it is a phenomenon directly related to Covid. It is the reported behavior of some life insurance companies delaying or denying people life insurance coverage based on their having contracted Covid or on being suspected in some way of having contracted Covid.
In the United States, more than 25 million people have tested positive for the coronavirus as of this writing. In the face of these developments, the Consumer Federation of America has not waited for the disease of denials to spread to the United States.
The CFA has issued a letter to the National Association of Insurance Commissioners calling for a new model rule. Faced with the contagion spreading from Europe in which life insurance companies have denied claims and applications from people with Covid-related issues, the CFA is urging reasonable behavior from life insurers in the United States.
"We understand reasonable precautions are needed, but to harm COVID patients and their families again is unacceptable. State regulators need to step in and issue a rule to protect consumers from arbitrary insurance company practices. Transparency and reasonableness in underwriting must be the standard," said J. Robert Hunter, CFA's Director of Insurance and former Texas Insurance Commissioner, who is quoted by the CFA in its press release. Press release, Recovered COVID-19 Patients Facing New Life Insurance Hurdles in Europe, Protections Needed for American Consumers /
CFA Urges the National Association of Insurance Commissioners to Adopt Model Rule for Life Underwriters Denying Coverage to Applicants Who Had COVID-19; Group Calls on Insurers to Take Voluntary Action (February 1, 2021), https://consumerfed.org/press_release/recovered-covid-19-patients-facing-new-life-insurance-hurdles-in-europe-protections-needed-for-american-consumers/.
In issuing its request for a rule of reasonableness, the Consumer Federation of America is essentially asking that life insurance companies in the United States act in good faith. Dealing fairly with applicants and policyholders is the essence of good faith -- and the surest way to avoid the dreaded extracontractual risk of lawsuits for "bad faith."
Posted by Dennis Wall on February 08, 2021 at 05:58 AM in Consumer Protection, Coronavirus Pandemic Response, Good Faith, Life Insurance, National Association of Insurance Commissioners ("NAIC") | Permalink | Comments (0)
Tags: #CoronavirusPandemic, #COVID19, #PandemicResponse
CONSUMER PROTECTION CLAIMS OVER AARP'S MARKETING OF MEDIGAP INSURANCE POLICIES: ....
THE FILED RATE DOCTRINE IS NO BAR, EVEN ASSUMING THAT IT APPLIES TO INSURANCE CASES.
A 2-to-1 decision last year by a panel of the Eleventh Circuit Court of Appeals, Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314 (11th Cir. 2018), may not mean what you think it does.
The Patel panel decision has often been put into an argument that goes something like this: Courts have no business changing filed rates that have been approved by authorized regulatory agencies. The federal filed rate doctrine forbids it. Insurance claims are regulated by states, so the filed rate doctrine bars claims that involve filed insurance rates approved by state insurance commissioners authorized to approve them.
That is not what Patel stands for.
On St. Patrick's Day 2019, the Chief Judge of a U.S. District Court pointed out that Patel stands only for applying a filed rate doctrine where the complaints at issue challenge the amount of the approved insurance rate (assuming for purposes of decision that the state recognizes a filed insurance rate doctrine):
In reaching this conclusion, the Eleventh Circuit focused on "[t]he most obvious basis," id. at 1325, namely, "the fact that the plaintiffs repeatedly state that they are challenging [the insurance company's] premiums," id. at 1325–26, using language targeting "artificially inflated premiums," "unreasonably high force-placed insurance premiums," and "amounts charged for insurance coverage," id.at 1326, such that "[t]he plain language of the complaints therefore shows that the plaintiffs are challenging the reasonableness of [the insurance company's] premiums; and since these premiums are based upon rates filed with state regulators, plaintiffs are directly attacking those rates as being unreasonable as well," id. The court described these claims "directly challenging the rates ... filed with state regulators" as "textbook examples of the sort of claims that we have previously held are barred by the nonjusticiability principle." Id.
The other circuit cases on which the defendants rely are distinguishable from the plaintiff's claims for precisely the reason Patel is: in each case, the plaintiffs directly challenged the filed rate.
Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *12-*13 (D.D.C. March 17, 2019) (Howell, Chief Judge).
In Krukas in contrast, "the Complaint at issue does not challenge the amount of the Medigap insurance rate or the amount collected by the insurance provider [UnitedHealth] that has been approved by state insurance agencies." Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *13 (D.D.C. March 17, 2019). Other courts in other cases filed over AARP's collection of what it calls a "royalty" and plaintiffs call an unauthorized "commission" have reached different results over whether a filed rate doctrine applies, "but closer scrutiny shows this is due to differences in the claims asserted." Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *13 (D.D.C. March 17, 2019).
Even assuming that the District of Columbia would impose a filed rate doctrine in insurance cases (an open question), the District Court had little problem in refusing to apply a filed rate doctrine in this case against AARP, and in which the insurance provider that charged and collected an apparently approved rate was not even made a party:
This reasoning is easily distinguishable since the instant suit is not filed against UnitedHealth and does not challenge the legality of the approved rates charged by UnitedHealth. Rather, the plaintiff's claims challenge AARP's practices and disclosures regarding the defendants' retention of a portion of the rates UnitedHealth filed.
Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *14 (D.D.C. March 17, 2019).
Parenthetically, I say "apparently approved," because as the Court itself noted in the Krukas case, it would not consider exhibits proffered by the defendants at the motion-to-dismiss stage which "would be premature." Neither the defendants nor the Court wanted to treat the defendants' motion to dismiss as a motion for summary judgment "without a full record" regarding the information filed by the carrier with the insurance regulator. Instead, at the motion-to-dismiss stage "the Court looks only to the plaintiff's Complaint" in that case. Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *11 (D.D.C. March 17, 2019).
In sum, the filed rate doctrine is not in our stars, so to speak, it is in the claims that are alleged. The filed rate doctrine does not apply to conduct and practices that "are independent of any approved rates." The FRD does not exist when "resolution of these claims ... does not necessitate any determination about the reasonableness of the rate." Krukas v. AARP, Inc., ___ F. Supp. 3d ___, No. 18-1124 (BAH), 2019 WL 1243864, at *15 (D.D.C. March 17, 2019). So take a look at what is alleged and what is proffered before a Court rules on the filed rate doctrine.
Posted by Dennis Wall on March 21, 2019 at 09:15 AM in Consumer Protection, Market Performance, Medigap insurance | Permalink | Comments (0)
Tags: #AARP marketing Medigap insurance policies, #agency procedure and rate determinations, #challenged the filed rate, #challenging behavior independent of the filed rate, #consumer protection claims against AARP, #consumer protection claims and Medigap policies, #D.D.C., #District of Columbia, #filed insurance rate doctrine, #filed rate doctrine, #Florida, #Patel v. Specialized Loan Servicing LLC, #UnitedHealth issuing Medigap insurance policies
THE VOLKSWAGEN "DEFEAT DEVICES" ENORMOUS MDL CLAIMS.
This is the beginning of a triolgy of articles that will end our continuing series taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen. In this installment and in the next two articles after this one, we will bring the series to a close by taking a look at the Volkswagen "pollution defeat device" MDL. Our special focus will be trained on the secrecy involved in this huge lawsuit, secrecy that is built into multi-district litigation and similar huge lawsuits. To a great extent secrecy is a major reason such lawsuits exist in the first place.
The VW defeat device MDL comes from a family of similar claims. At the time the VW defeat device MDL was put together, there were other large lawsuits aggregating or combining many claims of many people against other car manufacturers besides Volkswagen. These include:
Defeat device claims against Fiat Chrysler which mimicked VW's defeat devices, alternatively labeled as "illegal engine-control software" claims alleged by the United States concerning Fiat Chrysler Automobiles;
Claims for inflated mileage against Hyundai and Kia;
A class-action lawsuit against General Motors over alleged programming designed to cheat diesel emissions tests for pollution on some lines of pickup trucks; and
Demands from the Federal Trade Commission in the first months of 2017 for the "policies, practices and procedures" used by a finance company regarding "technologies to track the location of borrowers' vehicles in case they need to repossess them," including "installing devices that enable them to remotely disable a car's ignition after a borrower misses a payment."[1]
It is worth mentioning here that in a multidistrict litigation lawsuit against Hyundai and Kia, consisting apparently of plaintiffs who did not settle their claims with Hyundai and Kia the first time around, there are some 566 entries for pleadings and orders on the docket, and that many of the materials filed in the case concern sealing the evidence. I reviewed all 566 entries and although I may have missed one or more, it appeared that the trial judge granted every motion to seal that was ever filed in that case.[2]
TOMORROW: THE VW MDL: ANOTHER STIPULATED PROTECTIVE ORDER.
[1] Fiat Chrysler Defeat Device claims: The United States and the State of California sued Fiat Chrysler over defeat devices that basically mimicked VW's defeat devices. The suits were settled in January 2019 with the Federal Government and the State of California for a combined total of some $330 Million in lieu of civil penalties alone (figures mine), on top of an additional maximum estimate of $185 Million in recall costs. See Neal E. Boudette, How Fiat Chrysler Overtook the Pack, New York Times, p. B3, January 15, 2019; Neal E. Boudette, Fiat Chrysler's Penalties Reflect Limits of Diesel, New York Times, p. B5, January 11, 2019.
"Illegal engine-control software" claims alleged by the United States against Fiat Chrysler Automobiles: See Neal E. Boudette, "Business Day Section / U.S. Sues Fiat Chrysler, Accusing It of Using Software to Pass Emissions Tests" (New York Times Online, May 23, 2017), available at https://nyti.ms/2qSYYuH.
Hyundai, Kia inflated mileage claims: After settling regulators' claims for $100 million, Hyundai Motor America and its related corporation Kia Motors America settled for an additional $400 million most of a lawsuit that was brought based on allegations of inflated fuel economy claims for their cars. See, e.g., Jerry Hirsch, "Hyundai, Kia Reach $400-Million Settlement Over Inflated MPG Claims" (Los Angeles Times Online, December 23, 2013), available at http://articles.latimes.com/print/2013/dec/23/autos/la-fi-hy-hyundai-kia-settle-mpg-lawsuit-20131223. It was reported four days after the lawsuit settlement was announced, or on December 27, 2013, that the president and CEO of Hyundai Motors America was stepping down and would be replaced when his contract ended on December 31, 2013. Ronald D. White, "Hyundai Motor America Chief John Krafcik to Step Down" (Los Angeles Times Online, December 27, 2013), available at http://articles.latimes.com/print/2013/dec/27/business/la-fi-hyundai-chief-resigning-20131228.
A class-action lawsuit against General Motors over alleged programming designed to cheat diesel emissions tests: See Neal E. Boudette, "G.M. Accused in Lawsuit of Deceit on Diesel Truck Emissions" (New York Times Online, May 25, 2017).
Demands from the Federal Trade Commission in the first months of 2017 for the "policies, practices and procedures" used by a finance company: See Michael Corkery and Jessica Silver-Greenberg, "DealBook / Federal Agency Begins Inquiry Into Auto Lenders' Use of GPS Tracking" (New York Times Online, February 19, 2017), available at https://nyti.ms/2lwZFaA.
[2] See Jerry Hirsch, "Hyundai, Kia Sued Again Over Inflated Mileage Claims" (Los Angeles Times Online, November 8, 2012), available at http://articles.latimes.com/print/2012/nov/08/business/la-fi-mo-autos-hyundai-fuel-economy-lawsuit-20121108.
Since an appellate court decision on January 23, 2018, that MDL continues still. The appellate court reversed the trial judge's approval of settlement in that case and sent it back for further proceedings. In re Hyundai and Kia Fuel Economy Litigation, 881 F.3d 679 (9th Cir. 2018), rehearing en banc granted (vacated as precedent in the Ninth Circuit pending rehearing en banc), 897 F.3d 1003 (9th Cir. 2018).
Posted by Dennis Wall on January 29, 2019 at 05:41 AM in Catastrophe Claims, Consumer Protection, Current Affairs, Discovery, Evidence, Good Cause, Good Faith, Secrecy, Stipulated Protective Orders, Umbrella Protective Orders | Permalink | Comments (0)
Tags: #confidential, #disclosure, #evidence, #lawsuit, #MDLs, #multi-district litigation, #public interest, #stipulated protective orders
FILED RATE DOCTRINE DID NOT BAR STATUTORY UNFAIR PRACTICE CLAIMS.
In Washington State as elsewhere, the filed rate doctrine is a defense under certain circumstances. In basic and general terms as laid out by a federal court in the case of Harvey v. Centene Mgt. Co. LLC, No. 2:18-CV-00012-SMJ, 2018 WL 6112407, at *5 n.1 (E.D. Wash. Nov. 21, 2018), it is Washington State law that the "filed rate doctrine" was made by courts to cover cases involving regulated utilities. The effect is to shelter the appropriately filed rate from attack, whether directly or indirectly. In other words, the reasonableness of a rate filed with a governing regulatory administrative agency and approved by that agency is a settled issue, not subject to dispute.
The Harvey case is an insurance case. Specifically, that case involves health insurance policies.
In the Harvey case, the plaintiff alleged that the defendants breached contracts and violated Washington's Unfair Business Practices and Consumer Protection Statutes by failing to deliver the benefits of their "Ambetter health insurance policy" which they allegedly promised and represented that they would deliver. The plaintiff alleged these claims on behalf of a putative class of Ambetter policyholders. Harvey v. Centene Mgt. Co. LLC, No. 2:18-CV-00012-SMJ, 2018 WL 6112407, at *1 (E.D. Wash. Nov. 21, 2018).
In part here pertinent, the federal judge in Washington held in accordance with the concisely phrased headings of his rulings that "1. The filed rate doctrine does not apply to claims that are merely incidental to and do not directly attack Insurance Commissioner-approved health insurance premiums," Harvey v. Centene Mgt. Co. LLC, No. 2:18-CV-00012-SMJ, 2018 WL 6112407, at *5 (E.D. Wash. Nov. 21, 2018), and "2. Harvey's claims are merely incidental to and do not directly attack Insurance Commissioner-approved health insurance premiums." Harvey v. Centene Mgt. Co. LLC, No. 2:18-CV-00012-SMJ, 2018 WL 6112407, at *6 (E.D. Wash. Nov. 21, 2018). In short, claims based on allegations that the defendants did not deliver the insurance benefits they sold were not barred by the filed rate doctrine.
Even if the Court had not been completely convinced of this ruling, the Court went further in Harvey and stated that this decision was based on a motion to dismiss and "'the better practice'" in any case is to address the filed rate doctrine either on a motion or motions for summary judgment, or at trial. Harvey v. Centene Mgt. Co. LLC, No. 2:18-CV-00012-SMJ, 2018 WL 6112407, at *7 (E.D. Wash. Nov. 21, 2018).
Posted by Dennis Wall on December 27, 2018 at 06:23 AM in Consumer Protection, Contract, Filed Rate Doctrine, Health Insurance, Premiums, Unfair and Deceptive Practices | Permalink | Comments (0)
Tags: #allegations, #consumer protection, #contract, #filed rate doctrine, #health insurance, #insurance, #statutory claims, #unfair business practices, #Washington
"THE INFLICTION OF STIPULATIONS ON LITIGATION OF FACTS AND ON SETTLEMENTS"
PART TWO OF TWO PARTS COMPLETED WITH ALL FOOTNOTES REPRINTED HERE ON THURSDAY, NOVEMBER 29, 2018.
The following reprint from the book, Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters, is with the permission of Thomson Reuters West, the publisher, and Dennis J. Wall, the author of the reprinted selection. This selection, Section 2:19 (2018, Thomson Reuters), is reprinted here with permission of Thomson Reuters. Any further reproduction without the consent of the publisher is expressly prohibited.
Note: Access to hyperlinked citations are restricted by Thomson Reuters West in this publication; subscription may be required by Thomson Reuters West to access the hyperlinked citations that appear below.
Continued from the end of Part One on Tuesday, November 27, 2018:
In addition to the Ursomano case, there are as noted two other decisions which have been found to be on point at this time. In one of the two other available decisions which have been located on point in addition to Ursomano, a Federal Court in Oklahoma stayed an alleged lender force-placed insurance class action because the Court in Oklahoma was advised by the defendants that the defendants were negotiating settlement with the parties in the Florida case. On the strength of that representation alone, and without requiring any proof or a written order or even a briefing on the res judicata affirmative defense, the Federal Court in Oklahoma swiftly entered its order staying the proceedings in Utah unless the plaintiffs in Oklahoma could prove that their claims are not barred by the Fladell proceedings in Florida, proceedings to which the Oklahoma plaintiffs are not parties. The Oklahoma Federal Court's decision is in the case of Ali v. Wells Fargo Bank, N.A.17
In the other case which has been located as being on point here, a Federal Court in the State of Washington conditionally enjoined a foreclosure proceeding and refused to immediately dismiss an alleged LFPI class action. However, the Federal Court in Washington State required the plaintiffs in that case, none of whom it seems are plaintiffs in the Fladell case in Florida, to prove that their claims are not barred by the settlement to which they are not parties. The Federal Court's decision in Washington State is in the case of Keller v. Wells Fargo Bank, N.A.18
Beyond the three cases which have just been discussed, each decision coming from a different Federal Court and a different jurisdiction, Ursomano from California, Ali from Oklahoma, and Keller from Washington State, there are many other lender force-placed insurance class action cases and many other types of cases which are pending and others which are likely to be filed in the future. Some of those class actions will involve the same defendants as in cases which have settled and in which a "class" has been "certified for settlement purposes," as in the Fladell case. Orders in those cases will be used in defense in other cases, whether or not they contain expressions of res judicata, preclusive effect as does the stipulated settlement order in Fladell.
Although the Fladell case was ultimately settled by a stipulated agreement which the Court approved in that case, it is interesting to note the several objections which the Fladell defendants raised to class certification when they were against it and before they were for it.
The Court never addressed any of the defendants' objections, and it did not adjudicate them, either. What follows is taken mainly from the defendants' own Response in Opposition to Plaintiff's' Motion for Class Certification in Fladell, which the defendants filed in December 2013.19
In the Fladell case, the defendants pointed out in their opposition that the plaintiffs were seeking limited certification. According to the Fladell defendants, the plaintiffs requested certification of a national class on three Federal claims but not of their Florida law claims, for which the plaintiffs requested certification "of a Florida-only class."20 That statement obviously contradicts the position taken afterward by the same defendants in other legal proceedings, that the Fladell class settlement bars all lender force-placed insurance claims in all other cases in the nation.
In approving the Fladell parties' settlement agreement, the parties and the Federal Judge said that the Florida class action settlement complied with Federal Rules 23(a) and 23(b). Rule 23 requires among other things that the proposed class action procedure be a superior means of adjudicating the alleged claims and that the current named plaintiffs are adequate to represent the alleged classes in pursuing those claims.
When the defendants opposed the class certification motion, and before they were in favor of it, they objected that the proposed class action was an inferior means by which to adjudicate the plaintiffs' claims:
Plaintiffs are not adequately representing borrowers in every state other than Florida, and this action is an inferior way for them to litigate.21
Of even greater significance here, however, the defendants objected to certification in Fladell because of the potential danger that other Courts might preclude the potential claims of other people in other lawsuits who did not participate in the Fladell settlement agreement:
Plaintiffs seek national certification only on federal-law claims, which are, at best, highly dubious. If those claims are certified but fail on the merits, res judicata may prevent borrowers residing in 49 other states from bringing the more substantial state-law claims that Plaintiffs assert only for the proposed class of Florida borrowers. This is not a superior method of adjudication, nor adequate representation of those absent borrowers.22
In this same vein, it bears repeating that, as the Fladell defendants pointed out, the Fladell plaintiffs requested certification "of a Florida-only class" of Florida claims, and those Florida claims were four in number: "contract, implied covenant, unjust enrichment, and fiduciary duty."23 Yet, the defendants argue now, in other cases, that they tried to settle and the Federal Court purportedly approved their settlement in the Fladell case in Florida of every claim in every State in the nation involving also allegations of "alleged tortious interference," alleged compliance with "disclosure" laws, "the receipt or non-disclosure of any benefit," the making or failure to make any "communications" concerning LFPI insurance anywhere, and last but not least, "the regulatory approval or non-approval of any insurance policy, or the premium thereon, placed or charged by the Wells Fargo Defendants."24
It is noteworthy but perhaps not entirely surprising that District Judges often make their secrecy decisions in unreported Orders. Being unreported, they are much harder to find than reported decisions. In one such secrecy Order, captioned "ORDER RE: ADMINISTRATIVE MOTIONS TO SEAL,"25 a District Court treated a motion for class certification as a nondispositive motion even though disposition of the motion for class certification was at the heart of the plaintiffs' collective claims. The parties once again stipulated to secrecy, in this instance, to request that exhibits filed in connection with the motion for class certification should be kept secret. Applying an explicitly lesser standard for sealing documents and parts of documents when they are exhibits concerning "nondispositive" motions as opposed to dispositive motions, the District Court entered its Order granting the parties' stipulation to "file all documents sought to be sealed in redacted form consistent with their joint submission."26 In other words, the holding that a motion to certify a class in a case in which the reason for the lawsuit's existence lies in class certification -- and few if any putative class action lawsuits fit into any other category -- drove the decision to keep documents secret which probably and almost certainly would support the plaintiffs' substantive claims in the case.
In sum, stipulations have recently taken over much of litigation both in lieu of discovery which keep the evidence secret, and in settlement stipulations in which parties try to provide by agreement what they could not obtain by litigation. The most glaring example of the latter conduct is in the recent attempts by defendants to write and propose settlement stipulations for class actions that attempt to dispense with the requirements of class actions, and which will stand as res judicata determinations of those requirements if the same allegations are raised in other cases against the defendants. The effects of all of these stipulations remain to be worked out in each individual case, but until then, practitioners and their clients should be aware of the possibilities which they may face in presenting their catastrophic claims. In particular, these stipulations have not confronted the public policy sometimes embodied in statutes tending to prohibit public harm caused by secret agreements.27
© 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Houston Cas. Co. v. Charter Oak Fire Ins. Co., No. 1:16-cv-535-LJO-EPG, 2017 WL 35500 at *1 (E.D. Cal. January 3, 2017).
Cabrera v. Government Emp's Ins. Co., 2014 WL 2999206 (S.D. Fla. July 3, 2014) (Seltzer, Chief U.S.M.J.).
Cabrera v. Government Emp's Ins. Co., 2014 WL 2999206 *9 (S.D. Fla. July 3, 2014) (Seltzer, Chief U.S.M.J.).
See Cabrera v. Government Emp's Ins. Co., 2014 WL 2999206 *9 (S.D. Fla. July 3, 2014) (Seltzer, Chief U.S.M.J.).
See generally Dennis J. Wall, "Conditional and Other 'Nonspecific' Objections to Discovery Are No Objections at All in an Insurance (or in Any Other Case)," 33 Ins. Lit. Rptr. 437 (2011).
Floyd Norris, "High & Low Finance / Failed Bank's Broken Vows Mean Little" p. B1, col. 1 (New York Times Nat'l ed., "Business Day" Section, Friday, September 19, 2014). The order of the Federal Court in North Carolina can be found in FDIC v. Rippy, Order of September 10, 2014 granting defendants' summary judgment motion, Dkt. No. 124 (E.D.N.C. Case No. 7-11-cv-00165-BO).
FDIC v. Rippy, Dkt. No. 124, Order of September 10, 2014 granting defendants' summary judgment motion, at p. 3 (E.D.N.C. Case No. 7-11-cv-00165-BO).
FDIC v. Rippy, Dkt. No. 71, May 21, 2013 Amended Stipulated Protected Order and Non-Waiver Agreement, at p. 2 (E.D.N.C. Case No. 7-11-cv-00165-BO).
Fed. R. Civ. P. 26.
In addition to the clear language of Rule 26, the Advisory Committee Notes to the present enactment of Rule 26(c) in 1970, provide:
The new reference to trade secrets and other confidential commercial information reflects existing law. The courts have not given trade secrets automatic and complete immunity against disclosure, but have in each case weighed their claim to privacy against the need for disclosure.
An alternative to secrecy stipulations pursued in the cases, is to settle the class action case and provide for secrecy in the settlement agreement which the Court is then requested to approve. This method of obtaining secrecy is at work in the class action lawsuit filed against the high-profile corporations of Silicon Valley who allegedly conspired to limit their workers' "mobility and incomes." David Streitfeld, "New Accord is Expected in Hiring Ban," p. B1, col. 5 (New York Times Nat'l ed., "Business Day" Section, Thursday, January 15, 2015). As explained in this Times report, a second settlement agreement was reached in the case and presented to the Court for approval "[t]o head off a trial and the exposure of reams of incriminating emails." The Federal District Judge already rejected one settlement because the amount was too low to be "'within the range of reasonableness,'" i.e., the original settlement amount presented for the Court's approval was unreasonably low. Although the second attempt at a settlement agreement contains more money, "[t]he settlement money is pocket change to the companies, which include some of the world's wealthiest. If they let the case go to trial, however, it might corrode their image as forward-thinking, worker-friendly benevolent empires." David Streitfeld, "New Accord is Expected in Hiring Ban," p. B1, col. 5 (New York Times Nat'l ed., "Business Day" Section, Thursday, January 15, 2015).
Fladell, et al., Plaintiffs v. Wells Fargo Bank, N.A., et al., Defendants (S.D. Fla. Case No. 13-cv-60721), app. dismissed (unreported) (11th Cir. August 4, 2015).
Ursomano v. Wells Fargo Bank, N.A., No. C-13-4381, 2014 WL 644340 *1-*2 (N.D. Cal. February 19, 2014).
Ursomano v. Wells Fargo Bank, N.A., No. C-13-4381, 2014 WL 644340 *2 (N.D. Cal. February 19, 2014).
Ursomano v. Wells Fargo Bank, N.A., No. C-13-4381, 2014 WL 644340 *2 (N.D. Cal. February 19, 2014). [Emphasis added.]
Fladell v. Wells Fargo Bank, N.A., No. 13-cv-60721-FAM, 2014 WL 5488167 (S.D. Fla. October 29, 2014), app. dismissed (unreported) (11th Cir. August 4, 2015). The appeal to the Eleventh Circuit Court of Appeals was filed in Fladell after several plaintiffs objected to the attorney's fees award in that case of $19 Million "payable pursuant to the terms of the settlement agreement."
Ursomano v. Wells Fargo Bank, N.A., No. C-13-4381, Dkt. No. 74 filed on Nov. 12, 2014 (N.D. Cal. Case No. C-13-4381).
Ali v. Wells Fargo Bank, N.A., No. CIV-13-876-D, 2014 WL 819385, at *2 (W.D. Okla. March 3, 2014) (granting defendants' motion to stay lender force-placed insurance claims of plaintiffs who were not parties in the Florida case, unless those plaintiffs could prove that their claims were not settled in Fladell). The Ali case was distinguished when the same issue was raised, with a different result, in the case of Valdez v. Saxon Mort. Serv's, Inc., No. 2:14-cv-03595-CAS(MANx), 2015 WL 93387, at *2 (C.D. Cal. January 6, 2015): "Here, in contrast, the Lee settlement [the asserted fact of which was relied on in Ali] will not resolve all of plaintiffs' claims; rather, as moving defendants argue, the Lee settlement 'if approved, will resolve claims against Ocwen [] and Deutsche Bank [] ….' Mot. Stay at 1."]
See, e.g., Keller v. Wells Fargo Bank, N.A., No. C14-422, 2014 WL 6684895 *2-*3 (W.D. Wash. November 25, 2014) ("limited injunction" ultimately granted against defendants foreclosing on plaintiffs' home so as to allow the plaintiffs to prove that their case is not included in the Fladell settlement).
Fladell v. Wells Fargo Bank, N.A., No. 13-cv-60721-FAM, Dkt. No. 108 [hereinafter "DE 108"], filed December, 2013 (S.D. Fla. Case No. 13-cv-60721-FAM), app. dismissed (unreported) (11th Cir. August 4, 2015).
DE 108 at page 1.
DE 108 at page 19.
DE 108 at pages 2-3. [Emphasis added.]
Fladell v. Wells Fargo Bank, N.A., 2014 WL 5488167 *7 (S.D. Fla. Oct. 29, 2014), app. dismissed (unreported)(11th Cir. August 4, 2015).
Stitt v. Citibank, N.A., ORDER RE: ADMINISTRATIVE MOTIONS TO SEAL, Dkt. No. 152 Filed December 17, 2015 (N.D. Cal. No. 4:12-cv-032892-YGR).
Stitt v. Citibank, N.A., ORDER RE: ADMINISTRATIVE MOTIONS TO SEAL, Dkt. No. 152, at p.2, Filed December 17, 2015 (N.D. Cal. No. 4:12-cv-032892-YGR).
See, e.g., 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 3:107, "Settlement of third-party bad faith claims: Confidentiality (protected) or concealment (void)" (3d Edition and 2017 Supplement, Thomson Reuters West); 2 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 9:28, "Settlement of first party bad faith claims: Confidentiality (protected) or concealment (void)" (3d Edition and 2017 Supplement, Thomson Reuters West), examining among other things, Florida Statute Section 69.081.
End of Document
© 2018 Thomson Reuters. No claim to original U.S. Government Works
The above reprint from the book, Catastrophe Claims: Insurance Coverage for Natural and Man-Made Disasters, is with the permission of Thomson Reuters West, the publisher, and Dennis J. Wall, the author. This selection, Section 2:19 (2018, Thomson Reuters), is reprinted here in its entirety with permission of Thomson Reuters. Any further reproduction without the consent of the publisher is expressly prohibited.
Posted by Dennis Wall on November 29, 2018 at 06:01 AM in Class Action Settlements, Consumer Protection, Force Placed Insurance, Secrecy, Umbrella Protective Orders | Permalink | Comments (0)
Tags: #Ali, #California, #catastrophe, #certification, #claims, #class action, #confidential, #coverage, #disasters, #disclosure, #evidence , #Fladell, #Florida, #insurance, #interest, #Keller, #lawsuit, #natural and man-made, #Oklahoma, #orders, #protective orders, #public, #secrecy, #settlements, #Southern District of Florida, #stipulated, #stipulated agreement, #stipulated settlement order, #umbrella, #Ursomano, #Washington
NEW: "INJURY IN FACT": WHAT HAPPENS TO INSURER BAD FAITH STATUTES?
FROM THE 2018 SUPPLEMENT:
Litig. & Prev. Ins. Bad Faith § 9:14.50 (3rd ed.)
Litigation and Prevention of Insurer Bad Faith, Third Edition
A pdf of this new section can be accessed here or on my website at www.dennisjwall.com.
July 2018 Update
Dennis J. Wall
Part III. First-Party Claims
Chapter 9. Standards of Insurer Conduct
9:14.50. "Injury in Fact": What happens to bad faith statutes?
Claims handling and penalties statutes regulating the business of insurance may not any longer provide causes of action to many policyholders and claimants.
In 2016, the Roberts Court grafted a requirement onto the U.S. Constitution which is not found in it—standing — but which is instead found in the Court's cases. Cases decided in lower courts since the Roberts Court raised standing to a constitutional prerogative are divided over whether Congress and State Legislatures can provide standing by providing remedies for statutory violations.
In Spokeo, Inc. v. Robins,1 the Court raised the judge-made doctrine of standing to constitutional status. "Standing to sue," the Court recognized, "is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law," said the Court in Spokeo, Inc. v. Robins.2
One of the elements of standing is "injury in fact," which the Spokeo Court raised to "a constitutional requirement" which bars legislatures from conferring standing on people and organizations in most cases. To establish injury in fact, a person invoking a statutory remedy now must meet a newly-found constitutional requirement that she or he had a legally protected interest that is concrete and individualized to her or him, and that the harm is "actual" or "imminent," not "conjectural" or "hypothetical."3The Spokeo case itself was presented when Mr. Thomas Robins filed a lawsuit claiming an alleged violation of the Fair Credit Reporting Act by an internet search engine service which incorrectly provided information to the world about him. The Roberts Court remanded for a determination of whether Robins adequately alleged an injury in fact in his complaint.
As it has done by replacing "ultimate facts" pleading with "plausibility" pleading, in which allegations of fact in a complaint must be weighed by each individual judge who must dismiss the complaints that he or she does not think are "plausible," the Roberts Court has laid down another obstacle to filing lawsuits in Federal Courts.4 It is fundamental to its process to note how many times the Court would have people believe that its work has consisted for several years now of finding procedural and constitutional limitations which other Courts somehow must have overlooked.
In an interesting application of the Spokeo "standing-means-injury—in-fact" requirement, the District Court in Stromberg v. Ocwen Loan Servicing, LLC4.10 was confronted with a lawsuit filed as an alleged class action by "Plaintiff Bonnie Lynne Stromberg [who] asserts a California state law claim against two mortgage lenders and a mortgage loan servicing company for failing to reconvey a deed of trust on real property within thirty days after repayment of her home loan."4.20 The Court rejected the mortgage lenders' and mortgage servicer's challenges to Ms. Stromberg's standing to sue them by ruling that she had sufficiently alleged "injury in fact" through these "conclusory" allegations (which she handily supported with an affidavit and which the Court considered together with the allegations in her complaint):
The Court does not need to decide whether a bare procedural violation of California's analogous prompt-recording statute constitutes a concrete injury-in-fact for standing purposes because Stromberg has not alleged "a bare procedural violation, divorced from any concrete harm." Spokeo, 136 S. Ct. at 1549. To the contrary, she has alleged "additional harm beyond the one [the legislature] has identified." Spokeo, at 1549–50 (emphasis in original). In her complaint, Stromberg alleges that she "suffered injury in the form of slander of title, incurred costs, impaired credit and incomplete and inaccurate public records respecting her financial obligations and credit worthiness." Compl. ECF No. 58 ¶ 43. Even if this allegation regarding injury is, as Defendants contend, too conclusory by itself to establish an injury-in-fact, Stromberg has also submitted an affidavit that includes further factual support for her standing. ECF No. 101-1, Ex. A.4.30
Other Courts have found Spokeo standing to assert Fair Debt Collection Practices Act claims,4.40 Telephone Consumer Protection Act claims,4.50 Fair Credit Reporting Act claims alleged by a pro se plaintiff,4.60 and products liability claims in multi-district litigation which include allegations of noncompliance with standards set under regulations issued by the federal Environmental Protection Agency and by the California Air Resources Board.4.70
As an example of lower federal courts actively seeking situations in which people simply cannot sue for alleged violations of State statutes, even though States have provided the statutory remedies alleged in the given case, the Eleventh Circuit Court of Appeals held after Spokeo that a borrower-mortgagor in New York State could not bring that particular lawsuit for an alleged violation of New York Real Property Law because now the United States Constitution forbids such a suit.5 The Eleventh Circuit's decision in this case has been rejected by name in other Circuits,6 and it has been distinguished in the Eleventh Circuit based, perhaps ironically, on other Eleventh Circuit case law.7
However, this decision is by no means alone.8 In Spokeo itself, the Court deciding that case remanded for a determination of "plausibility," in effect, of whether Thomas Robins and persons like him had alleged injury in fact as the U.S. Constitution now apparently requires.
The following case did not directly involve the Spokeo "injury in fact" directive, but it does illustrate the relative probabilities of success of any statutory action under a "Consumer Protection Act" by whatever name. In Fat Bullies Farm, LLC v. Devenport,9 potential sellers of real property brought a New Hampshire Consumer Protection Act ("CPA") claim against prospective purchasers on account of the alleged conduct of the prospective purchasers. To describe the attitude of the New Hampshire Supreme Court in rejecting a New Hampshire CPA claim in this case as hostile, is to put it mildly. It is nonetheless instructive:
Viewing Fat Bullies and Simmons's [the prospective purchasers'] misrepresentation in conjunction with the remainder of their course of conduct does not alter our determination. Even taken together, the acts of showing up unannounced with an attorney and an option agreement, not recommending that the Devenports [the potential sellers of the real property] obtain legal counsel, attempting to negotiate price, not explaining the meaning of the language contained in the draft agreement, threatening and attempting to enforce an option agreement, and pursuing a contentious litigation strategy would not "raise an eyebrow of someone inured to the rough and tumble of the world of commerce." (Citations omitted.) We cannot conclude that the subject conduct offends established public policy, is immoral, unethical, oppressive, or unscrupulous, or causes substantial injury. (Citation omitted.)
For these reasons, we reverse the trial court's ruling on the Devenports' CPA claim and its award of attorney's fees to the Devenports as damages under the CPA.10
If the idea of "injury in fact" has been elevated surreptitiously from standing to the U.S. Constitution, it can certainly have an effect on claims based on State statutes providing remedies to 'private attorneys general' that the States rely on to enforce the laws. Time will tell whether State Unfair Claim Handling Practices Acts and Penalties Statutes governing the business of insurance will feel the effects and, if so, how.
Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Spokeo, Inc. v. Robins, U.S. , 136 S. Ct. 1540 (2016).
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016).
See, e.g., Klika v. Capital One Bank, N.A., No. C15-0107RSL, 2016 WL 4544373 at *1 (W.D. Wash. June 30, 2016), and "PLAUSIBILITY AS A STANDARD? DON'T BELIEVE IT," published on Insurance Claims and Issues Blog on Monday, May 1, 2017, at http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2017/05/plausibility-as-a-standard-dont-believe-it-its-just-another-way-of-saying-theres-nothing-left-to-lose-with-apologies-to-m.html.
Stromberg v. Ocwen Loan Servicing, LLC, No.15-cv-04719-JST, 2017 WL 2686540 (N.D. Cal. June 22, 2017).
Stromberg v. Ocwen Loan Servicing, LLC, No.15-cv-04719-JST, 2017 WL 2686540at*1 (N.D. Cal. June 22, 2017).
E.g., Ferrell v. HSI Fin. Serv's, LLC, No. 1:16-cv-04624-RWS-AJB, 2017 WL 8186795 at *4 (N.D. Ga. December 22, 2017) ("After careful consideration of the pleadings and the rapidly expanding catalogue of case law interpreting and applying Spokeo, the undersigned is persuaded that Plaintiff's pleadings are sufficient to establish standing. The Court finds Defendant's motion unavailing on several grounds."); Abraham v. Ocwen Loan Servicing, LLC, 321 F.R.D. 125, 166 (E.D. Pa. 2017) ("Numerous courts have applying Spokeo found a sufficient 'injury in fact' to support a FDCPA claim from allegations that a plaintiff suffered an 'informational injury' because the character of a debt had been misrepresented.").
Progressive Health & Rehab Corp. v. Strategy Anesthesia, LLC, 271 F. Supp. 3d 941 (S.D. Ohio 2017) ("Indeed, as Plaintiff points out, the overwhelming number of courts that have addressed standing in a TCPA case subsequent to Spokeo have found standing.") (pinpoint page references not available in April 2018).
Lovess v. Embrace Home Loans, Inc., No. JKB-17-2212, 2017 WL 4745452 at *2 (D. Md. October 20, 2017) ("This case is very close to Spokeo, but not quite there. Plaintiff is similarly alleging a procedural violation of FCRA and claiming that she is harmed by potential future consequences. But she has also alleged actual damages in the amount of $100,000 stemming from emotional distress and mental anguish, and therefore this is not a 'bare' procedural violation of the type at issue in Spokeo.").
In re Chrysler-Dodge-Jeep Ecodiesel Marketing, Sales Practices, & Prod's Liab. Lit., No. 17-md-02777-EMC, 2018 WL 1335901 at *6 (N.D. Cal. March 15, 2018)("Because Plaintiffs allege a financial injury, Spokeo does not support dismissal of their case.").
Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1002-03 (11th Cir. 2016).
See, e.g., Weldon v. MTAG Services, LL, No. 3:16-cv-783 (JCH), 2017 WL 776648 at *6 (D. Conn. Feb. 28, 2017).
See Tillman v. Ally Fin. Inc., No. 2:16-cv-313-FtM-99CM, 2016 WL 6996113 at *4 n.7 (M.D. Fla. Nov. 30, 2016).
See also Michael G. McLellan, "Finding a Leg to Stand On: Spokeo, Inc. v. Robins and Statutory Standing in Consumer Litigation," 31 Antitrust 49 (Summer 2017).
Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 28, 164 A.3d 990 (2017).
Fat Bullies Farm, LLC v. Devenport, 170 N.H. 17, 164 A.3d 990, 998–99 (2017).
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
Reprinted from Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith, Third Edition (Thomson Reuters). Further reproduction of this article without the express consent of the publisher is prohibited.
Posted by Dennis Wall on August 14, 2018 at 08:12 AM in Bad Faith, Consumer Protection, Defenses in Insurer Bad Faith Actions, First Party Bad Faith, Statutory Bad Faith, Unfair and Deceptive Practices | Permalink | Comments (0)
Tags: Act, Agency, Air, allegations, bad, Board, California, claim, claims, Collection, constitution, constitutional, Consumer, Credit, Debt, Environmental, fact, Fair, faith, federal, handling, injury, liability, litigation, multi-district, noncompliance, Practices, products, Protection, Protection, regulations, Reporting, Resources, Robins, Spokeo, standards, standing, statutory, Fair, Telephone
MAYDAY, MAYDAY! INSURANCE ADJUSTERS LIABLE UNDER WASHINGTON CONSUMER PROTECTION ACT!
In Washington State, a motorist was injured in an accident. The injured motorist brought an action against the adjuster for the at-fault motorcyclist's automobile insurance company. The injured motorist sued for bad faith and for alleged violation of the Washington Consumer Protection Act.
The Superior Court, King County, Washington, Case No. 15-2-18663-9, John P. Erlick, J., dismissed the injured motorist's action but certified the case for discretionary review, which was granted.
On appeal, the Washington Court of Appeals held that:
the duty of good faith imposed by Washington statutes on "all persons" involved in insurance applies equally to individuals and corporations acting as insurance adjusters, and
individual insurance adjusters can be liable for a violation of the Washington Consumer Protection Act.
"Thus, we hold that an individual insurance adjuster may be liable for bad faith and CPA violations." Holding of the appellate court: Reversed and remanded.
The case in the appellate court is published at Keodalah v. Allstate Ins. Co., 413 P.3d 1059 (Wash. Ct. App., Div. 1, 2018).
Please Read The Disclaimer. © 2018 Dennis J. Wall. All Rights Reserved.
Posted by Dennis Wall on May 01, 2018 at 05:55 AM in Bad Faith, Claims Handling, Consumer Protection, Individual Liability of Claim Adjusters, Statutory Bad Faith, Unfair and Deceptive Practices | Permalink | Comments (0)
Tags: acts, adjusters, bad, claims, claims, consumer, faith, faith, good, handling, individual, insurance, liability, practices, protection, settlement, statutes, statutory, unfair, Washington
WELLS FARGO CONSENTS TO CONSUMER FINANCIAL PROTECTION BUREAU ORDER.
Wells Fargo has consented to "pay a civil money penalty of $100 million to the [Consumer Financial Protection] Bureau." The Consent Order is available here: Download CFPB CONSENT ORDER WITH WELLS FARGO.092016_cfpb_WFBconsentorder, or through a link made available by the CFPB on its website at http://files.consumerfinance.gov/f/documents/092016_cfpb_WFBconsentorder.pdf. The quoted material is from Paragraph 57 on page 17 of 26. The Order was signed on September 4, 2016 (and so that is its "Effective Date," by its terms), and filed on September 8, 2016.
Wells Fargo consented to other things as well, including reserving or depositing into a special deposit account "an amount not less than $5 million," within "10 days of the Effective Date," for the purpose of securing its promise to provide "redress to Affected Consumers." (Id., paragraph 49 on page 14.)
Parenthetically, Wells Fargo also agreed to pay a totally separate amount of "$50,000,000 in civil penalties" in an earlier settlement stipulation with the City Attorney of the City of Los Angeles entered on September 1, 2016 available through this hyperlink provided on the City Attorney's website. That settlement stipulation awaits the entry of Final Judgment in a pending action in the Los Angeles County Superior Court.
These developments are being reported on the day that this article is written. The developments are so new and so related to bad faith that I could not help but make this information and these documents available to my readers. As is often the case, however, there are unanswered questions arising from these developments.
First, there are four (4) areas of apparent misconduct referenced in Wells Fargo's Consent Order with the CFPB, but the press only mentions the first two at this time:
Unauthorized Deposit Accounts;
Unauthorized Credit Cards;
Unauthorized Enrollment into Online-Banking Services; and
Unauthorized Debit Cards.
So, the first question is, why?
The answer to the first question may be related to some or all of the remaining questions. The CFPB's Consent Order relied on "an analysis" that Wells Fargo "performed" to "assess" improper sales practices by its employees, which it may or may not have induced, between May, 2011 and July, 2015. (Id., paragraph 15 on page 5.) What "analysis?" No documents resembling an analysis were made available by Wells or by the CFPB, and it even appears that the CFPB did not request any documents.
Whatever the Wells "analysis" may be, Wells attached numbers to two things in the Consent Order as a result.
First, the "Unauthorized Deposit Accounts" were opened by Wells Fargo employees, according to Wells Fargo itself, 1,534,280 times during the period. Further, "roughly 85,000 of those accounts incurred about $2 million in fees, which [Wells Fargo] is in the process of refunding," it said. (Id., paragraph 16 on page 5.)
Second, Wells Fargo concluded that its employees applied for "Unauthorized Credit Cards" in the names of Wells Fargo customers another 565,443 times during the same period of May, 2011 through July, 2015. Wells further "determined that roughly 14,000 of those accounts incurred $403,145 in fees, which [Wells Fargo] is in the process of refunding." (Id., paragraph 23 on page 7.)
Perhaps these two areas of apparent misconduct were the only ones mentioned in press reports because they are the only ones provided with numbers in the CFPB Consent Order.
In any event, how did the CFPB come to publish the numbers provided by a Respondent as part of the CFPB's own "Findings and Conclusions" in this Consent Order? If the CFPB performed its own investigation -- and there is no indication that it did -- then the CFPB certainly remained quiet about it.
So, what we end up with are quite a few questions about exactly what went on in this "bad faith" matter. And answers provided only by the accused party, it seems.
This may be the moral equivalent of a stipulated final judgment of bad faith in which the company was willing to stipulate that it did nothing wrong and, such as in this case, the company is paying for the misdeeds of more than 5,300 bad apples or "rogue employees."
Please Read The Disclaimer. ©by Dennis J. Wall. All Rights Reserved.
VIDEO: Elizabeth Warren's brutal takedown of Wells Fargo's CEO is something out of a horror movie! | Daily Mail
Scandal, Sham Accounts At Wells Fargo
Posted by Dennis Wall on September 22, 2016 at 05:49 AM in Consumer Protection, Current Affairs, Secrecy | Permalink | Comments (0)
Tags: Angeles, apples, Attorney, bad, bureau, City, consumer, employees, Fargo, financial, fines, Los, penalties, protection, rogue, Wells
SYSTEMIC BAD FAITH.
The problem of systemic or institutional bad faith is pervasive. It goes well beyond the insurance industry.
The numbers show this clearly. For just one telling statistic among many available, "40% of the population … must rely on payday loans". Mehrsa Baradaran, How the Other Half Banks 76 (2015).
Please Read The Disclaimer. ©2016 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with Supplements). All rights reserved.
MODELS IN INSURANCE.
Posted by Dennis Wall on February 28, 2016 at 02:59 PM in Bad Faith: Do you want Coverage with that?, Consumer Protection, Current Affairs | Permalink | Comments (0)
Tags: bad faith, institutional, payday loans, systemic
ONCE "ACTING," ONCE "CONFIRMED" PENNSYLVANIA "ACTING" INSURANCE COMMISSIONER OVERRULED.
A Pennsylvania Court has overruled a decision promulgated by one-time Pennsylvania "Acting Insurance Commissioner" Teresa D. Miller. It appears that Ms. Miller, then the PIA, later the CIA (Confirmed Insurance Commissioner), approved business transactions between one Erie Insurance Exchange and Erie Indemnity Company through which Indemnity received, or kept, money paid as "installment and other service charges from Exchange subscribers.'" Ms. Miller administratively ruled that these exchanges did not violate "the [Pennsylvania] Insurance Holding Companies Act (IHCA)." The Pennsylvania Court vacated the Commissioner's decision. Erie Ins. Exch. v. Pennsylvania Ins. Dep't, No. 872 C.D.2015, 2016 WL 324682, at *1 (Pa. Commw. January 27, 2016).
Attorney's fees, costs, whatever. Sometimes people keep on paying for someone else's decisions.
While PIA, Ms. Miller previously decided, too, that fracking does not cause earthquakes. As a result of that decision, homeowner's insurance companies in Pennsylvania cannot issue homeowner's insurance policies with an exclusion for earthquake damages caused by fracking, because fracking does not cause earthquakes she said. See the articles posted on Insurance Claims and Issues Blog on April 20, 2015 and April 22, 2015, which contain links to other articles on the subject.
Please Read the Disclaimer. ©2016 by Dennis J. Wall. All rights reserved.
No Coverage, No Bad Faith Under Pennsylvania Law.
Pennsylvania Supreme Court: "Yes" to Assigning Statutory Bad Faith Claim.
Texas Drilling Damage in Pennsylvania: All Risks Property Coverage?
Posted by Dennis Wall on January 31, 2016 at 08:30 PM in Consumer Protection | Permalink | Comments (0)
Tags: Commissioner, earthquake, fracking, Insurance, Pennsylvania
FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT PREEMPTED.
"By its express terms," said the Court, the Florida Deceptive and Unfair Trade Practices Act "'does not apply to ... [b]anks and loan associations regulated by federal agencies.'" Wilson v. Everbank, N.A., 77 F. Supp. 3d 1202, (S.D. Fla. 2015), quoting Fla. Stat. Section 501.212(4)(c). The Court accordingly granted a federally regulated savings and loan association's motion to dismiss a FDUTPA claim with prejudice in that lender force-placed insurance practices case.
However, the Court entertained a cornucopia of claims allegedly arising under Florida, New York, or Illinois law, some of which it left standing, including claims based on the Truth-in-Lending Act, and alleged breaches of contract and of the implied covenant of good faith and fair dealing.
Please Read The Disclaimer. Copyright 2015 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). Listen to the author's most recent Thomson Reuters Legal Current podcast. All Rights Reserved.
Federal Loan Modification Program Another Profit Center for Predatory Lending.
Only Homeowners Are Barred From Negotiating in Mortgages.
Posted by Dennis Wall on August 30, 2015 at 01:46 PM in Consumer Protection, Force Placed Insurance, Fraud, Unfair and Deceptive Practices | Permalink | Comments (0)
Tags: bank, deceptive, federal, Florida, practices, preemption, regulated, savings and loan association, trade, unfair
CLASS ACTION SETTLEMENTS BECOME LEGALIZED WEAPONS OF MASS DESTRUCTION.
This article is an adaptation of a much longer article (Wall, 2015).
A possible defense of res judicata arises as a result of recent class action settlement agreements: Can a party obtain the right to raise res judicata in other cases because of a Court-approved class action settlement in one action, that the party could not have obtained unless the Court approved a settlement because the Court never otherwise certified a class in that action?
Based on the case law, the answer clearly appears to be "yes."
Not only that, but the case law also features parties raising the settlement agreement who in the end did not have to do anything more than talk about it in order to convince a Federal Judge to bar other claims.
As a starting point, the focus of attention was a Federal case in Florida in which the Federal Court approved a nation-wide class action settlement of lender force-placed insurance ("LFPI") claims. The settlement agreement in that Florida case included the LFPI claims, if any, which are or might be held by absent persons. The "Order Granting Final Approval to Class Action Settlement" in that case is reported at Fladell v. Wells Fargo Bank, N.A.1 The author's research has turned up three cases in which the mere fact of a class action settlement in Florida in the Fladell case was raised as a bar to prosecuting the civil actions of other persons in other jurisdictions.
In one case, on the strength of a representation that two weeks earlier the parties in the Florida Fladell case had reached a settlement agreement, although no agreement was available to look at because it was an agreement only in principle at that point, a Federal Court in California stayed an alleged LFPI class action involving California homeowners. The Federal Court in California expressed concern that a settlement in Florida in Fladell might preclude the LFPI class action alleged in the complaint which was filed in California long before the settlement "in principle" in Florida.2
In another case, the Fladell class action settlement was raised as a bar even before the agreement was approved by the Fladell Court, with a similar result. In that case, too, a Federal Court this time in Oklahoma stayed an alleged LFPI class action because the Oklahoma Court was advised that the defendants in the Florida case were negotiating a settlement.3
In the remaining case, a Federal Court in the State of Washington bucked the trend by enjoining a foreclosure proceeding, on one condition, and denying a motion to dismiss an alleged LFPI class action, basically on the same condition.FN4 In both of these cases, the case in Oklahoma and the case in Washington State, the Federal Courts declared that the Fladell settlement would bar the claims in their Courts unless the plaintiffs in their Courts could show that they are not bound by the settlement agreement and, ultimately, by the Court Order in Florida approving the Fladell settlement.5
This turns the affirmative defense of res judicata or claim preclusion on its head in several ways. One way is that at least three District Judges were confronted with representations by lawyers that the claims alleged by people in a case at bar should be halted because they, the lawyers, knew about a settlement of allegedly similar claims in a class action in a different State. Further, the burden of proof on affirmative defenses lies with the party raising them, rather than on the parties opposing the defenses.
The efforts at barring claims of people in many jurisdictions through the use of Court-approved class action settlements in one jurisdiction, are being mimicked by at least one insurance company which provides force-placed insurance, American Security Insurance Company, or "ASIC."6 Following in the footsteps of investment bank-lenders in this regard, ASIC has participated in a settlement and immunity order in one case pending in the United States District Court for the Southern District of Florida, Lee v. Ocwen Loan Servicing.7
In Lee as in Fladell, the Court entered orders proposed by the parties after the parties settled their alleged class action in an LFPI case. The Court Orders purportedly provide immunity, i.e., res judicata, to preclude every LFPI claim in every other lawsuit filed against the insurance company and the other settling defendants anywhere in the United States.8 The settlement class certified in Lee is for all intents and purposes a purported class of "all borrowers within the United States."9
There seem on the face of it to be possible questions about the adequacy of representation of the named plaintiffs and questions about whether there are legally sufficient common questions of law or fact in Lee to permit any order in Lee to bar other claims by other people in other jurisdictions outside of Miami. For instance, as good as the Lee plaintiffs' counsel of record must be as lawyers, they are only from 3 States: New Jersey, New York, and Florida. Their clients, the plaintiffs in the Lee lawsuit in Miami, are only from 7 States: Florida, Massachusetts, Illinois, New Jersey, New York, Texas, and Virginia, at least according to the First Amended Complaint that was filed in Lee.10
Among the claims alleged in Lee are claims for damages for Florida unjust enrichment and tortious interference, breach of fiduciary duty, violation of the implied covenant of good faith and fair dealing, and alleged violations as well of the Florida Deceptive and Unfair Trade Practices Act.
Claims alleged for unjust enrichment under Florida law and the law of other States, together with alleged violations of Florida's implied covenant of good faith and fair dealing, were previously held in binding Southern District of Florida precedent to make a nationwide class of lender force-placed insurance plaintiffs, i.e., homeowners-mortgagors, uncertifiable as a matter of law.11
The same holding has been followed concerning claims alleged under the Florida Deceptive and Unfair Trade Practice Act in the Southern District in another earlier case, although that case did not involve lender force-placed insurance practices. 12
In determining the settlement class in Lee, the Magistrate Judge cited a precedent which held that the Court is not endorsing any evidence or arguments in that process. However in actuality the Magistrate Judge also purported to make determinations that the settlement class in Lee should be certified in part because "[t]here are questions of law or fact common to the members of the Settlement Class." The Court in Lee made this determination without ever mentioning what those common questions are, let alone making any attempt to identify even one of them as "predominant".
The Magistrate Judge also certified the settlement class in Lee in part because "Plaintiffs' claims are typical of the claims of the other members of the Settlement Class."13 The claims of the Lee plaintiffs do not at all seem typical of the claims of the other members of the settlement class, and neither the named plaintiffs nor their settlement class attorneys can possibly represent the claims of the other members of the class under the laws of the 40+ States if only because they cannot invoke those laws.14
In sum, the preliminary settlement order submitted by the parties and signed by the Magistrate Judge in Lee contemplates that objections to the settlement and to the Preliminary Order approving the settlement will be considered at the Final Approval Hearing. The final hearing, now rescheduled by Court Order,15 is due to be held as of this writing, in Miami on June 11, 2015. Objections presented in compliance with the Court's preliminary Order are due to be entertained at that time.
FN1 Fladell v. Wells Fargo Bank, N.A., No. 0:13-cv-60721, 2014 WL 54881677 (S.D. Fla. October 29, 2014). Many notices of appeal were filed from this order. Their dates and dispositions are available on PACER. Several appeals are still pending as of this writing. See also Dennis J. Wall, "Class Action Settlements Have Consequences, From Florida to the State of Washington," 69 NWLawyer 27 (April/May 2015).
2 Ursomano v. Wells Fargo Bank, N.A.,No. C-13-4381 EMC, 2014 WL 644340 *1-*2 (N.D. Cal. February 19, 2014). The Ursomano case was dismissed by the Court's own Order on October 30, 2014 and again on November 13, 2014 by Court Order approving the parties' stipulation of dismissal, which expressly stated that it did not affect claims of absent persons who would not fall within the class in Fladell.
3 Ali v. Wells Fargo Bank, N.A., No. CIV-13-876-D, 2014 WL 819385 *2 (W.D. Okla. March 3, 2014).
4 Keller v. Wells Fargo Bank, N.A., No. C14-422 RAJ, 2014 WL 6684895 *2-*3 (W.D. Wash. November 25, 2014). In this decision, the District Judge in the Keller case allowed Mr. and Mrs. Keller, the plaintiffs, "an opportunity to come forward with evidence or argument that demonstrates that they opted out of the [Fladell Florida] settlement or that their claims are somehow not covered by the settlement." The District Judge dismissed the Kellers' case with prejudice after the defendant notified the Court that it was informed that the Kellers would not contest dismissal, and incidentally, that the Kellers had twice filed for bankruptcy already.
5 In their settlement stipulation for dismissal which the Ursomano Court approved after the Court entered its sua sponte Order of dismissal, the parties pointed out to the Federal Court that their alleged classes were never certified in Ursomano. The plaintiffs were careful to obtain the defendants' agreement that "the parties have reached a settlement of Plaintiffs' individual claims against Defendants in which the Plaintiffs' individual claims will be dismissed with prejudice and the members of any putative class will be dismissed without prejudice," and, moreover, that while all individual claims of the individual claims were settled and should be dismissed with prejudice, under this stipulation "[a]ll claims and allegations of any putative class members are hereby dismissed without prejudice." [Emphases added.]
The presiding District Judge in the Ursomano case approved this stipulation without issuing a written Order, according to PACER.
6 These efforts are also joined by unrelated third parties such as mortgage servicers and their related affiliates and subsidiaries and partners. Among mortgage servicers, one, Ocwen, is prominent.
7 Lee v. Ocwen Loan Servicing, No. 0:14-cv-60649, 2015 WL 178220 (S.D. Fla. Report and Recommendations of U.S. Magistrate Judge Goodman, January 13, 2015), report and recommendations adopted on appeal, 2015 WL 309441 (S.D. Fla. January 23, 2015 Order by USMJ Goodman sitting by consent of the parties after his report and recommendations were made 10 days earlier).
8 Lee v. Ocwen Loan Servicing, No. 0:14-cv-60649, 2015 WL 178220, *4 (S.D. Fla. Report and Recommendations of U.S. Magistrate Judge Jonathan Goodman, January 13, 2015), report and recommendations adopted, 2015 WL 309441 (S.D. Fla. January 23, 2015; USMJ Jonathan Goodman).
9 Lee v. Ocwen Loan Servicing, No. 0:14-cv-60649, 2015 WL 178220, *3 (S.D. Fla. January 13, 2015 Report and Recommendations of U.S. Magistrate Judge Jonathan Goodman), report and recommendations adopted, 2015 WL 309441 (S.D. Fla. January 23, 2015; USMJ Jonathan Goodman).
10 Lee v. Ocwen Loan Servicing, Docket No. 106 filed 12.01.14 (S.D. Fla. Case No. 0:14-cv-60649).
11 This holding was reached in an earlier lender force-placed insurance practices case in the same Southern District of Florida: Kunzelmann v. Wells Fargo Bank, N.A., No. 9:11-cv-81373-DMM, 2013 WL 139913, *7-*10 (S.D. Fla. January 10, 2013).
12 Karhu v. Vital Pharmaceuticals, Inc., No. 13-60768-CIV, 2014 WL 815253, *10 (S.D. Fla. March 3, 2014)(the Court in the Karhu case also held, for the same reasons, that the putative class action plaintiff did not meet his burden of establishing that common issues predominate "with regard to the unjust enrichment claims of the Proposed Classes"), dismissed without prejudice by Order filed on March 27, 2014 (unreported), notice of appeal filed on April 15, 2014 regarding denial of class certification and dismissal (assigned 11th Cir. Case No. 14-11648-E according to PACER, the Public Access to [Federal] Court Electronic Records). (As of this writing, the appeal in Karhu is still pending.)
13 Lee v. Ocwen Loan Servicing, No. 0:14-cv-60649, 2015 WL 178220, at p. *3, ¶ 5 (S.D. Fla. January 13, 2015 Report and Recommendations of Goodman, USMJ), adopted, 2015 WL 309441 (S.D. Fla. January 23, 2015; Goodman, USMJ).
14 See, e.g., Karhu v. Vital Pharmaceuticals, Inc., No. 13-60768-CIV, 2014 WL 815253, *10 (S.D. Fla. March 3, 2014), dismissed on March 27, 2014 and appeal filed on April 15, 2014 (both unreported); Kunzelmann v. Wells Fargo Bank, N.A., No. 9:11-cv-81373-DMM, 2013 WL 139913, *7-*10 (S.D. Fla. January 10, 2013).
15 Lee v. Ocwen Loan Servicing, Docket No. 127 (S.D. Fla. Case No. 0:14-cv-60649).
Please Read The Disclaimer. Copyright 2015 by Dennis J. Wall, author of "Lender Force-Placed Insurance Practices" (American Bar Association 2015). www.lenderforceplacedinsurance.com All Rights Reserved. No Claim to Original U.S. Government Works.
Posted by Dennis Wall on May 21, 2015 at 07:46 AM in Class Action Settlements, Consumer Protection, Force Placed Insurance | Permalink
ROBOSIGNING VIOLATES LAW, SO DOJ REQUIRES ... PAY MONEY, NO SANCTIONS.
FAILING TO OBEY EVEN COURT RULES WOULD NOT RESULT IN SANCTIONS IMPOSED BY COURT.
The United States Department of Justice has a history of settling claims against large financial institutions rather than trying them. Moreover, it is apparent that the DOJ also has a policy not to accuse individuals at large financial institutions of wrongdoing.
These strains of policy came together in a matter involving the U.S. Trustee Program and the Bankruptcy Courts of the United States. The inappropriate result in this case is the central focus of this article.
The Trustee Program took certain "actions ... in districts around the country concerning [J.P. Morgan] Chase's improper practices in bankruptcy cases, including robo-signing." This is the DOJ's description in a press release announcing that the DOJ has settled the U.S. Trustee Program's "actions." Press Release, Department of Justice Office of Public Affairs, Tuesday, March 3, 2015. These actions and the announced "robo-signing" deserve a little closer look.
First, the announced offense. Statutes and Court Rules require that affidavits and declarations under oath shall be submitted to Judges based on the declarant's personal knowledge, if they are supposed to be considered by the Courts as evidence. "Robosigning" means that the persons testifying to their personal knowledge actually did not have personal knowledge. It means that these same persons had no idea what was in the documents that they swore they knew all about.
"Robosigning" never involves what might be called schoolyard bragging. The robosigned affidavits and declarations -- so-called because they are signed so fast that the declarants swear and sign them like robots -- are always submitted as evidence. Otherwise there is no purpose to them.
Chase "acknowledged," i.e., admitted , according to the DOJ's press release, "that it filed in bankruptcy courts around the country more than 50,000 payment change notices that were improperly signed, under penalty of perjury, by persons who had not reviewed the accuracy of the notices." [Emphasis added.] Chase even outsourced some of the 'signings' to "individuals employed by a third party vender on matters unrelated to checking the accuracy of the filings."
So, the United States Department of Justice was presented with a case in which 50,000 persons allegedly committed perjury. These 50,000 people signed false or incomplete papers which falsely declared that persons in bankruptcy should be subjected to payments for mortgage debts, so-called "payment change notices."
Not one of the 50,000 people involved in this practice faces any sanctions, or at least the DOJ does not mention any in its press release. The only thing achieved in this perjury settlement is that Chase will pay some money.
That is not enough.
That is not sufficient to maintain the integrity of the Courts including the Bankruptcy Courts of the United States. No-one should ever be permitted to declare the truth of something under oath which they know not to be true. Declarants committing perjury should still suffer the consequences of their perjury for the sake of preserving the integrity of the judicial system -- and for preserving the willing obedience of every member of society to the rules and rulings of the Courts. This settlement does not even come close to serving that purpose.
The DOJ's settlement on behalf of the U.S. Trustee Program has reportedly been submitted for approval to the United States Bankruptcy Court in the U.S. District Court, Eastern District of Michigan. The DOJ press release does not provide the case number. An Internet Search by the author does not reveal it either, although the author's search did turn up many places in which the terms of the DOJ's press release are either repeated or summarized.
Here is the contact information for the National Association of Bankruptcy Trustees. These people should be able to provide that missing case number so that the Court Files can be accessed and objections can be filed:
NABT HEADQUARTERS
One Windsor Cove, Suite 305 Columbia, SC 29223
(803) 252-5646 • 800-445-8629 Fax (803) 765-0860
• info@nabt.com
The readers of this column are invited to register their comments in accordance with the rules of the Court.
PRAYER FOR RELIEF. The Court in that case is respectfully requested to impose sanctions and require more than the payment of money in this settlement, which is all that the Department of Justice was content to require, if this settlement proceeds at all.
JP Morgan settles with DOJ over robo-signing
Secret Insurance Bad Faith: Presumptions, Rebuttals and ... Stipulations.
Posted by Dennis Wall on March 10, 2015 at 01:06 PM in Consumer Protection, Current Affairs, Evidence, Foreclosures, Penalties | Permalink
Tags: bankruptcy, Chase, DOJ, robosigning, Trustees
AMERICAN BANKERS ASSOCIATION REQUESTS CLARIFICATIONS: MORTGAGE SERVICING, CONSUMER FINANCIAL PROTECTION.
The American Bankers Association has requested "clarification" of mortgage servicing and consumer financial protection rules from the Consumer Financial Protection Bureau ("CFPB"). The Association has written to the Bureau to advise that "legal and regulatory uncertainty" should not be "additional factors that encourage banks to scale back their mortgage servicing activities." Letter to Ms. Kelly Cochran, Assistant Director for Regulations at the CFPB, from Mr. Robert R. Davis, Executive Vice President for Mortgage Markets, Financial Management & Public Policy at the American Bankers Association, dated October 24, 2014. (This letter is referenced by the CFPB in its call for Comments to Amended 2013 Mortgage Rules Under RESPA, the Real Estate Settlement Procedures Act, and Under the Truth in Lending Act, which you can access here and leave your own comments in response to the Bureau's invitation. The CFPB's citation of the Association's October 24, 2014 can be found in nn. 70, 299, and 316. The Association's October 24, 2014 letter is accessible here: Download American Bankers Association Letter Rolling Delinquencies.102414.)
What the American Bankers Association's letter does not mention is that banks are "scaling back their mortgage servicing activities" because that business is no longer as profitable as it once was.
No Class Certified, But Court Approves Class Action Settlement Agreement ...
Morning Scan: Crackdown on Payday Lenders
CFPB Issues Proposed Rules for Prepaid Products
CFPB To Launch Plain Language Common Sense Mortgaging
Posted by Dennis Wall on January 08, 2015 at 05:56 AM in Consumer Protection, Force Placed Insurance, Foreclosures, Market Performance | Permalink


text: The Gathered website

redpajama_set_name: RedPajamaGithub


Businessman Keith Hull lost his family, his career and most of his friends when he became Stephanie Anne Lloyd. But, with the help of business partner Raiko Ristic and the financial backing of businessman David Booth, Stephanie achieved her ambition of opening the country's first ever transvestite store.
She and David fell in love and were married on Valentine's Day in Sri Lanka. It should have been a fairy tale start to her living happily ever after. However, as an outspoken campaigner on behalf of TVs and TSs, she wasn't allowed to get away so lightly.
The police raid came as a complete shock. The Manchester shop, TMC offices and Stephanie's home were all hit simultaneously in a huge operation that must have been months in the planning.
The mass invaders searched wherever, whatever and whoever they chose – including Stephanie herself – and took away boxes and boxes of videos and goods for "further examination". The nightmare had begun.
Stephanie had known for a long time that the authorities would go to almost any lengths to drive her out of business. Her open support of transvestites and transsexuals – whom the powers that be regarded as perverts – had really got them worked up. There had been constant skirmishes with the likes of the local council, who tried to impose regulations against Transformation that didn't apply anywhere else. Stephanie had always stood her ground, and had always eventually won.
The raid proved to be different though. The squads of police that invaded her that day did find a little nugget to hold on to amongst all the goods they seized. Some of the videos didn't have the proper paperwork – and for that both Stephanie and Raiko were to b e sent to prison on a charge that normally brought no more than a £500 fine.
The paperwork in question was a certificate from the British Board of Film Classification. Stephanie and Raiko had tried to cut a corner on the overheads to widen their product range. It was an economy they were soon to regret. "Looking back, it was a silly thing to do, but we just hadn't realised what the consequences could be," said Stephanie.
"It wasn't as if the videos were pornographic – some were information films for TVs; others were TV fantasy fiction that was available in books at that time, but not on film. The only videos around elsewhere were mostly crude and in poor taste, we thought.
"We wanted to do better for our customers by producing films ourselves and be able to sell them in our shops at an affordable price. If we had had to pay the high fees for having each film certified, it would have been impossible.
The police had ensured that the trial centred on the 'perversion' of transvestism, based on their hardened belief that all TVs were gay and worse besides. As a convicted promoter of such perversions, Stephanie was sent to a remand centre and put in with a group of mentally ill inmates.
Risley Remand Centre at Warrington – known as 'Grisly Risley' – is a hideous place wherever you are, but the most depressing and claustrophobic section of all is the basement, where Stephanie was locked away with just a mattress on the floor and a plastic pot in the corner. Here was a sophisticated and intelligent business woman, who had been expecting to be dining out with her husband that night, the court case behind her. Instead, she was trapped behind bars with a group of women who were, to say the least, mentally unstable.
"It's hard to describe how awful it was to be locked up in that place. I was in total and utter shock" she said.
Stephanie was kept there for three days, the longest and most tortured 72 hours of her life, before being moved to a women's open prison near York. Open prisons often have the reputation of being little more than just holiday camps – at least amongst those who have never had to be in one. The reality is very far from that.
Stephanie found herself suddenly having to share her days and nights with convicted murderers, thieves and drug dealers. She had never come across illegal drugs of any kind before, but in prison they were rife, as was violence and intimidation amongst some of the inmates. She kept herself to herself as much as possible. She was different to the others, partly because hers was a technical offence that hadn't harmed anyone, but mostly because of her history. She was the only prisoner there who hadn't been born a woman.


Water is the beginning. It is where everything starts, it is your playground, your land, your battlefield. arena DNA is forged in water, generation after generation of swimmers, designed by champions for champions and for everybody who loves water sports. This is arena, this is "Water Instinct".


text:
Kingdom of Lego Expanded Military Force: Threat to Region?
Kingdom of Lego Prime Minister Rito Wingo at the launch of the Avenger armoured vehicles for the Legos army.
The Kingdom of Lego has expanded its military forces since the end of the First Regional War.
The Kingdom now has some 600,000 troops, with 350,000 of them in reserve units. It has also acquired or developed new tanks and warplanes.
The expansion of the Royal Armed Forces of Lego (RAFL) was undertaken by the previous Royal Party Government, but the expansion gained momentum with the election victory of the right wing party led by Rito Wingo.
The army now has some 2,500 tanks and 4,000 armoured vehicles, along with between 300-400 artillery pieces.
The air force has about 450 warplanes currently, but it is receiving some 180 new 5th generation warplanes with stealth capability.
As the Kingdom of Lego has the most powerful military force in the region, it has used its military muscle to exert pressure on regional countries.
Prime Minister Wingo has already demanded Equanter and Suva to pay $10 billion Brick Dollars to the Kingdom of Lego to cover the cost of the first regional war. In addition, Wingo has demanded both countries to spend more on defence, especially in buying weapons from the Kingdom of Lego.
Reports indicate that the Kingdom of Lego is working on a demand for war reparation from Malatia amounting to some $25 billion Bricks Dollars. Malatia has rejected such demands, stating that it has lost some 20% of its territory which was annexed by NARTO countries.

redpajama_set_name: RedPajamaCommonCrawl


text:
Home//Local Coverage//Business
Buoyed by early results, Boston and Worcester push to extend free public transit
Darryl C. MurphyTwitter
Riders board the 23 Ruggles bus at Ashmont Station, one of the three bus routes included in the expansion plans for fare-free bus service in Boston. (Jesse Costa/WBUR)
This article is more than 1 year old.
The Worcester Regional Transit Authority has extended its COVID-19 fare suspension policy through 2022.
The extension gives the WRTA time to decide whether to make the policy permanent or revert to fare collection.
Board Chair Gary Rosen said the extension is "the right move," but warned the city must consider the longer-term implications of the policy. Thus far, Worcester has offset the lost fare revenue with federal stimulus funds. The city stands to get more from the new infrastructure package, but Rosen warned a big financial challenge lies ahead.
"We got to be careful," he said. "We need a sustainable source of revenue. The federal funds that we are pleased and lucky to have... won't last us forever."
In October, Boston Indicators reported that the WRTA's bus service had reached more than 90% of its pre-pandemic ridership. The research group said the recovery was likely due to the fare suspension.
The Worcester board also voted to overhaul its fare payment system and policy, and to purchase a new mobile payment system, which can be used to collect data.
The WRTA's move comes on the heels of Boston Mayor Michelle Wu's request to set aside $8 million of federal funds to provide fare free bus service on the MBTA's 23, 28, and 29 bus routes, which serve Dorchester, Mattapan, and Roxbury. The request, which must be approved by the Boston City Council, would cover free service for two years.
Wu's proposal would build on the success of a pilot led by former acting Mayor Kim Janey, which made fares free on the T's 26 route. The city credited the pilot with boosting ridership from 47,000 to 70,000 weekly rides.
Rodney Gerald said he rides the 28 bus to get to work, and the pilot has been a big help.
"It has been helpful for a lot of people around here," he said. "Because a lot of times you don't have enough change to get on the bus … It's amazing. About time they try to do something for us."
Wu visited Ashmont Station in Dorchester on Thursday to talk about the plan. Flanked by supporters, the new mayor said the expansion of fare-free transit in Boston is an issue of climate, racial, and economic justice.
"Each of these bus lines serves a ridership that reflects Boston," Wu said. "By taking this action we truly will connect our communities and supercharge our recovery, putting these federal recovery funds to good use by supporting and investing in communities who have been hardest hit by this pandemic."
The council could vote on the request as soon as Dec. 1. Boston city councilor Andrea Campbell expressed concern that the city may have overpaid for the route 28 pilot. She also said the public should be allowed to weigh in on the program. Still, Campbell said, Wu's request is bound to be passed after a council hearing.
"This will indeed get through the council," Campbell said. "There are just some questions I had, but it will indeed pass the council. I am sure of it."
Free transit had benefits but may not be sustainable, Worcester study concludes
Boston Mayor Michelle Wu wants to expand free bus rides
Janey Launches Pilot Program To Make One Of The T's Bus Routes Free
Darryl C. Murphy Twitter Host
Darryl C. Murphy is the host of WBUR's daily news and culture podcast, "The Common."


New York, NY – Returning to BET Networks for the sixth consecutive year on February 2, 2019, The 20th Annual Super Bowl Gospel Celebration will be hosted by National radio and TV personality Rickey Smiley. The annual NFL-Sanctioned event will take place during Super Bowl LIII week, filming in front of a live audience on Thursday, January 31, 2019 at Atlanta Symphony Hall.
Jan 24 Thelma Houston Receives A New GRAMMY® Award That was Destroyed in the Northridge Earthquake for Her Hit Song "Don't Leave Me This Way"


This Rough Guide features coverage of Malaysia's pristine beaches and age-old ruins, Singapore's glittering malls and culinary delights, and the unique attractions of oil-rich Brunei, such as the spectacular Omar Ali Saifuddien Mosque. Exhaustive listings for both modernized city centers and the kampung (village) areas cover everything from five-star hotels and restaurants to budget guest houses and noodle stalls. The authors also give you the lowdown on each nation's popular culture, traditional arts, religious feasts and history.
Mark Lewis, CCIE® No. 6280, is technical director of MJL Network Solutions (www.mjlnet.com), a leading provider of internetworking solutions that focuses on helping enterprise and service provider customers to implement leading-edge technologies. Mark specializes in next-generation network technologies and has extensive experience designing, deploying, and migrating large-scale IP/MPLS networks. He is an active participant in the IETF, a member of the IEEE, and a certified Cisco Systems® instructor. Mark is the author of Troubleshooting Virtual Private Networks, published by Cisco Press.


Since the early days of programmatic, the tire kickers have loudly voiced concerns over its safety and effectiveness. They bemoaned the lack of transparency and the quality, among other complaints.
Several years later, programmatic is going strong, yet it still seems to suffer from a similar – though less existential – crisis in confidence. But do we really want to go back to the antiquated or older forms of direct-like sales? The old way is broken in so many ways, including terrible optimization and small panel-based planning, to name a few.
While it may appear that confidence in programmatic is wavering, programmatic is growing fast. It's not just display, it's digital radio, TV, mobile, video and more. Mobile display is gigantic. EMarketer predicts that by next year, more than 80% of US digital display dollars will flow through automated platforms.
On the publishing side, programmatic is leading sales to such an extent that publishers are merging their direct and programmatic teams. The New York Times, BuzzFeed, Pandora and others have pulled these teams together because programmatic has become such an integral part of their revenue growth. In many cases, a single rep offers buyers both direct and programmatic inventory. Many companies that never offered programmatic have crumbled.
Surely there will be standouts and outliers that won't need it – and good for them. But, for most publishers out there, it makes good business sense.
At agencies, programmatic is being fully integrated into many traditional teams. Automated buying used to be outsourced to trading desks, demand-side platforms or another agency altogether, but it's now at the heart of the agency. Programmatic specialists work alongside strategy and planning teams.
Even brands are building in-house programmatic capabilities. More than a third of companies have expanded programmatic in-house, according to an ANA study, and reduced their partnerships with outside agencies. That number grew 14% compared to 2016, and I expect it will continue to grow.
Publishers have listened carefully to the market's concerns and taken more responsibility for the inventory they're selling programmatically. Few, if any, publishers can say today that they don't know where their inventory is featured. That wasn't the case just a few years ago.
Publishers are also leading efforts to clean up the marketplace and reduce the number of partners that come between their ad inventory and customers. Many have limited their partners, which has, in turn, helped reduce the bloat in the middle of the display advertising Lumascape.
Even ad tech is changing, thanks to calls for transparency and marketplace cleanup from the likes of new customer data platforms, supply-path optimization, Ads.txt, Digitrust and other players and developments helping things to improve quickly. It's sometimes hard to see all the good things happening in the marketplace when the headlines seem to suggest otherwise, but we need the positivity to come through because it's true.
Actions speak louder than words, and the market's actions show that programmatic is not only here to stay, it's quickly becoming the underpinning of the digital advertising industry.


A novel surface restoral system based on passive stereo vision principle and active raster projection is introduced in this paper. The key techniques of image pre-processing methods in this system are described in detail. Especially, the Local Weighted Image Smoothness (LWIS) and the Selective Image Enhancement (SIE) techniques proposed here are discussed to help the three dimensional data acquisition from the grid stereo images in the surface restoral system. The experiment results prove the efficiency of these image processing methods.


These days, music truly lives online, with an infinite number of websites dedicated to hosting tunes for the laptop-wielding masses. However, the web's bottomless pit of blogs isn't the only place to troll for mp3 treasures—some of the newest and most exciting (Internet-friendly) artists can be sought out via Soundcloud, the online stage that allows musicians to promote and distribute their music to fans and friends across the globe. In this weekly column, expert Internet sleuth Alex Chapman goes into the depths of the music-sharing site, in hopes of shedding light on emerging acts, as well as sharing some digital diamonds in the rough. 2013 has seen its fair share of Internet-trending subgenres, but none has proved its longevity and legitimacy quite like the Sad Boy movement, an effort associated with an array of rappers and producers that create music for hip-hop's more sensitive souls. Check out three of the key acts involved via the tracks we've selected below—feel free to cry your eyes out in the process.
Who: One of the Sad Boy pioneers and an artist many see as a focal point for the movement, Little Pain is a talented rapper whose songs delve into some deep, dark places. His most recent effort, a notably consistent mixtape entitled When Thugz Cry, has Pain waxing on everything from his dead dog to his mom kicking him out of the house to suicide attempts. Pain no doubt embodies gloom and doom, but as his mixtape title and soundcloud name ("Rapgamewarrensapp") imply, he also has a perfectly understated sense of humor.
Current Project: Be sure to download When Thugz Cry for free here.
Who: A testament to sad rap's international presence, 16-year-old Swedish rapper Yung Lean is perhaps the poster child for the movement, his psychedelic cyber videos for tracks like "Hurt" and "Ginseng Strip 2002" helping catapult the artist to Internet fame. The Arizona Iced Tea-loving lyricist's flow is impressive, a surprise to hear and see such conceptual work produced by someone with such a small amount of years under their belt.
Song: Rapping over the wistful work of Sad Boys member Yung Gud, Lean's flow sits in an echo chamber, slightly auto-tuned as he navigates through the beat, barely ever stopping. A lot of it is unabashedly indecipherable upon first listen, but the blend of vocals and production is all part of the package, creating a melancholic and extremely distinct sound. Current Project: Lean recently released a visual for "Kyoto." Check out more on the rapper via his Facebook page.
Who: A member of Yung Lean's Sad Boy crew, Yung Sherman is responsible for much of Lean's beats (along with Gud). Incorporating eccentric, melancholy and sometimes even obscurely exultant sounds with the types of bass and snare big producers would die for, Sherman is important to the movement and an artist to watch in his own right.Song: Sitting somewhere between the soundtrack for an ancient arcade game and the chiptune sounds of artists like Unicornkid, Sherman creates a crazy EDM-inclined track that should make you want to dance and sob simultaneously.
Current Project: Sherman doesn't have a Facebook page or any obvious base of operations, but if you stay up to speed with Lean's Facebook page, you're likely to get news about all the other Sad Boys as well.