| The Missouri Supreme Court affirms that amendments to RSMo Sect. 537.065 requiring a valid Sect. 537.065 contract between a plaintiff and a tortfeasor limiting recovery to insurance and notice to insurers for an opportunity to defend do not apply retroactively to cases where the contract was entered into prior to the effective date of the amended statute.
| While Missouri is finally permitting applications for marijuana-related businesses ("MRBs"), the tension between Missouri's Amendment 2 and federal controlled substance schedules presents a conundrum for MRBs, their banks, and their counsel.
| The U.S. Supreme Court holds that a third-party defendant is not entitled to remove because neither the General Removal Statute nor the Class Action Fairness Act permits a third-party counterclaim defendant to do so.
| SECOND UPDATE: Missouri Governor Mike Parson signs Senate Bill 7, which amends venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| Even with asbestos litigation on the slow decline, Madison County and St. Clair County, Illinois remain the top venues for asbestos litigation.
| Missouri has continued to hold that arbitration agreements are not unconscionable when they are shown to have valid mutual assent and are not self-serving.
| Due to a recent spike in ADA filings pertaining to businesses' websites, all financial institutions should work with their counsel and web designers to ensure that their websites and mobile applications follow current accessibility guidelines.
| UPDATE: House Passes Senate Bill 7, in which the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| The Illinois Appellate Court, First District, held that a party may timely withdraw a previously disclosed testifying expert and redesignate said expert as a Rule 201(b)(3) consultant entitled to the consultant's privilege against disclosure absent exceptional circumstances.
| In Senate Bill 7, the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| The CFPB, under new director Kathleen Kraninger, has submitted a Notice of Proposed Rulemaking seeking to rescind the underwriting requirements set forth in the CFPB's 2017 Rule regarding payday loans, on the basis that there was inadequate support for these requirements in the first place. The proposal is open for comment through early May.
| Illinois Supreme Court has held that no damages beyond the statutory violation itself are required to state a claim for the improper collection, retention, or dissemination of biometric identifiers under Illinois' Biometric Information Privacy Act.
| The Illinois Supreme Court recently held that a subcontractor hired by a general contractor cannot be liable to a purchaser of a newly constructed home for breach of an implied warranty of habitability absent a direct contractual relationship with the homeowner.
| Applying Missouri Law, the Eighth Circuit confirms that when a company guarantees customer satisfaction, only to leave the customer unsatisfied, it risks not only its business reputation, but also its legal right to collect payment.
| Defense attorneys beware. The 2018-2019 American Tort Reform Foundation's (ATRF) Judicial Hellholes Report is out, and the City of St. Louis landed fourth on this list because of its massive verdicts, forum shopping, and legislative failures.
| In an action under the FDCPA, the Fifth Circuit Court of Appeals recently upheld the trial court's decision to deny an award of attorney's fees, in spite of express statutory language stating that fees are recoverable, where the fees were found to be unreasonable and where plaintiff and her counsel acted in bad faith.
| In a blow to the enforceability of arbitration clauses found in many existing consumer contracts, the Missouri Supreme Court declines to appoint a substitute arbitration provider after the agreed-upon arbitration forum's "sudden and unforeseen departure" from the scene.
| More than a year after the highly publicized Equifax data breach, a U.S. Representative has introduced H.R. 6743 as a measure to amend the Gramm-Leach-Bliley Act to require a national level of uniformity in reporting and addressing data breaches. But not everyone is in agreement that this should be governed at a national level.
| The Missouri long-arm statute provides that an out-of-state defendant can be subject to personal jurisdiction in Missouri when it commits a tortious act within Missouri. The issue of what constitutes a tortious act within Missouri is not always evident, especially when...
| Cryptocurrency investor Michael Terpin filed an action against AT&T seeking $24 million in actual damages and $200 million in punitive damages in what could be a landmark case for the standard of care required for data and phone service providers in the realm of cryptocurrency.
| 4 years after the CFPB brought an action asserting several claims against a Kansas City based payday lender, the parties have entered into a consent order that will result in the defendant paying a $1 fine.
| Missouri's Western District has held 2017 amendments to 537.065 mandating insurers have notice and an opportunity to intervene as of right when an insured enters into a 537.065 agreement apply prospectively only to agreements executed after the effective date of the amendment, August 28, 2017.
| Promptly after the House approved S. 2155, The Economic Growth, Regulatory Relief and Consumer Protection Act, President Trump signed it into law, signifying what could be the most substantial change in law in the financial services industry since the inception of Dodd-Frank in 2010.
| Declining to follow previous rulings on the subject from the Fourth and Ninth Circuits, the Third Circuit Court of Appeals recently held that the statute of limitations for violations under the FDCPA begins to run when the violation allegedly occurs, rather than when it is discovered by the claimant.
| The U.S. Senate is expected to vote any day now on an expansive bipartisan bill that would have the biggest regulatory impact on the financial services market since the Dodd-Frank Act passed in 2010.
| For those wondering if Director Cordray’s retirement would truly bring about as much change as anticipated, the CFPB’s first actions in 2018, under the leadership of acting director Mick Mulvaney, have demonstrated a stark change in philosophy from the days of Cordray.
| Its appeal is undeniable. Users can transfer funds internationally, anonymously, and efficiently. Its value has continued to grow faster than anyone ever expected. But the pressure to regulate Bitcoin is coming to a head, as regulators and financial institutions grow increasingly concerned of the potential for criminal activity and financial instability. 2018 may ring in the first substantial efforts in the U.S. for oversight of this controversial cryptocurrency.
| Following the issuance of the CFPB’s Rule prohibiting arbitration clauses for waiver of consumer class action rights, the U.S. Senate wasted no time in passing legislation to overturn the CFPB rule. The law passed by the Senate restores law regarding arbitration provisions to the status quo.
| After conducting a study, which spanned several years, on the prevalence of mandatory arbitration clauses in consumer financial products, the CFPB has issues a new rule that will prohibit financial institutions from including mandatory arbitration clauses that prohibit a consumer from joining in class action litigation against the bank.
| A unanimous Supreme Court upheld the Fourth Circuit's holding in Henson v. Santander Consumer USA Inc., in which the Circuit Court held that, although Santander was the purchaser of a debt that was in default, it was not a "debt collector" under the FDCPA, and thus, was not subject to its stringent requirements for collection activities.
| The Financial Choice Act was introduced in 2016, and its revamped successor, referred to as “CHOICE Act 2.0,” was reported to the House of Representatives for consideration in early May. Today, the House passed the bill, bringing the United States one step closer to substantial financial regulation reform.
| The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
| The Missouri Court of Appeals for the Western District promptly affirmed the trial court’s holding that a local bank’s overdraft fee was not “interest,” and, therefore, was not subject to the state’s usury cap.
| Standing in a foreclosure case requires possession of an enforceable note at the time the foreclosure is filed. A mortgage and note may be later reunited and be enforceable.
| Often overlooked by legislators are the detrimental consequences of broad sweeping banking regulations on smaller community banks. At a recent convention, ICBA President Camden R. Fine called for continued efforts by community banks to fight for practical regulation reform.
| Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| The CFPB recently filed its complaint against Navient, the nation’s largest servicer of federal and private student loans for alleged failures in servicing those loans. Filed in the United States District Court for the Middle District of Pennsylvania, the Complaint contains allegations that Navient violated the Consumer Financial Protection Act, the Fair Credit Reporting Act, and the FDPCA and seeks millions in restitution.
| In a ruling favorable to home loan mortgage servicers, the Florida Supreme Court held that the trial court’s dismissal of a previous foreclosure action caused the loan to decelerate, thus recommencing the 5-year statute of limitations period for acceleration of the loan.
| While the very concept of an electronic mortgage is not new, the adoption of e-mortgages as the new "normal" remains a hot topic in the mortgage servicing realm. Despite the technology behind electronic document execution, delays in e-notarization laws prevent e-mortgages from fully replacing traditional home loan transactions.
| On October 25, 2016, FinCEN issued an Advisory outlining recommendations and requirements for financial institutions to report suspicious activity in compliance with the Bank Secrecy Act, clarifying these institutions' obligation to report cyber-events, even where no financial transaction was completed.
| In a long-awaited opinion, the D.C. Circuit Court held that the structure of the CFPB, as it exists currently, is unconstitutional. The Court also rejected the Director’s argument that the applicable statute of limitations does not apply to a CFPB administrative action.
| The results of the November 8, 2016 election have unmistakably cast doubt on the future of the CFPB, particularly as it exists today. With Donald Trump as President-elect, along with a Republican-held House and Senate, it is likely that some of the preceding years’ regulations and consumer protections will be undone.
| In a recent decision, a unanimous three-judge panel of the Missouri Court of Appeals sided with consumers asserting deceptive labeling practice claims against merchants under the Missouri Merchandising Practices Act (MMPA).
| A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
| In McNearney v. LTF Club Operations Company, Inc., the Missouri Court of Appeals for the Eastern District recently affirmed a trial court ruling granting summary judgment in favor of the Defendant fitness club from claims by the Plaintiff that it was negligent and reckless in allowing her to become injured while participating in a boot camp exercise class.
| On May 23, 2016, the U.S. Supreme Court decided the case of Green v. Brennan in order to resolve a split among the Circuits on whether, in an action for constructive discharge, the 45-day limitation period for the employee to initiate contact with the EEOC begins to run after the employer's last discriminatory act, or at the time of the employee's resignation.
| In its first 4-4 decision since the death of Justice Antonin Scalia, the United States Supreme Court issued a ruling that resulted in affirmation of the 8th Circuit Court of Appeals’ opinion in favor of a Missouri bank in a dispute concerning the Equal Credit Opportunity Act.
| The Kansas Court of Appeals recently held that, even where a debt collector delayed its motion to compel arbitration until 2 years after the litigation was commenced, the trial court did not have the authority to decide that the delay was, in effect, a waiver of arbitration.
| In its current state, the MMPA has allowed consumers to collect substantial verdicts in cases that have strayed from the original intent of lawmakers. SB793 hopes to restore a balance that requires not only that businesses act fairly, but also that consumers act reasonably.
| While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
| The Eighth Circuit recently analyzed the application of the “outside sales” and “administrative” exemptions under the Fair Labor Standards Act in the context of promotional workers. Also, the Court was asked to decide, for the first time, what constitutes a valid waiver of an employee’s rights under the FLSA.
| An agent may recover attorney's fees when enforcing a principal's contract if: the agent is granted the express authority to enforce the contract in the contract itself, the contract contains an attorney's fees provision, and the agent is the prevailing party.
| A defendant removing a case to federal court under the Class Action Fairness Act need not provide evidence proving the jurisdictional amount in controversy in the notice of removal. A "short and plain statement of the grounds for removal" is sufficient.
| Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
| A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
| A man who sued his former employer, alleging he was discharged in retaliation for filing a workers' compensation claim, appealed on the basis that the trial court used a jury instruction with the wrong standard. In a 5-2 decision written by Judge George W. Draper III, the Missouri Supreme Court rejected the 'exclusive causation' standard and replaced it with the "contributing factor" standard. On remand and in future cases, the jury must determine whether the plaintiff's filing of a workers' compensation claim was a "contributing factor" to his or her discharge.
| Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
| The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
| In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.