The Third Circuit issued four precedential opinions today, all unanimous affirmances — three civil, one criminal:
Tepper v. Amos Financial — civil / FDCPA — affirmance — Ambro
The Third Circuit held today that debt collectors who purchase consumers’ debts from creditors (instead of being hired by the creditors to collect the debts) are subject to the Fair Debt Collection Practices Act. Said the court, “Those entities whose principal business is to collect the defaulted debts they purchase seek to avoid the Act’s reach. We believe such an entity is what it is—a debt collector.”
Joining Ambro were Jordan and Vanaskie. Arguing counsel were Erik Helbing for the consumers and John Jacko III of Fellheimer & Eichen for the debt collector.
St. Pierre v. Retrieval Masters Creditors — civil / FDCPA — affirmance — Krause
In an issue of first circuit impression, the Third Circuit held that collecting unpaid highway-tolls bills falls outside the scope of the FDCPA, distinguishing prior circuit caselaw that collecting unpaid water and sewer bills falls within its scope. The opinion announced a three-part test for deciding what constitutes a “debt” subject to the FDCPA.
Joining Krause were Greenaway and Jones MDPA by designation. Arguing counsel were Michael Quirk of Berezofsky Law Group for the consumer and Joel Bertocchi of Chicago for the debt collector.
Reading Health Systems v. Bear Stearns — civil / arbitration — affirmance — Roth
Here is the first paragraph of today’s opinion:
In this case, we address an emerging trend in the brokerage industry. Ordinarily, broker-dealers, as members of the Financial Industry Regulatory Authority (FINRA), are required by FINRA Rule 12200 to arbitrate all claims brought against them by a customer. Seeking to avoid this obligation to arbitrate, broker-dealers have begun inserting forum selection clauses in their customer agreements, without mentioning the customer’s right to arbitrate. This practice, which has been condoned by several of our sister circuits, deprives investors of the benefits associated with using FINRA’s arbitral forum to resolve brokerage-related disputes.
“[C]ondoned by several of our sister circuits,” perhaps, but not condoned by the Third. Affirming the district court’s order compelling J.P. Morgan to submit to FINRA arbitration, the court expressly split with the Second and Ninth Circuits while siding with the Fourth Circuit.
Joining Roth were Shwartz and Pappert EDPA even though the appeal arose from the EDPA. Arguing counsel were Jonathan Youngwood of Simpson Thacher for the appellant and Mark Strauss of New York for the appellee.
US v. Johnson — criminal — affirmance — Fisher
The Third Circuit rejected a series of challenges to a criminal defendant’s conviction and sentence arising from a series of bank robberies. Proceeding after a Supreme Court GVR, the court held that the district court’s failure to instruct the jury on an element of the crime was Alleyne error but that reversal was not warranted under plain error review. The court also held that a prior federal bank-robbery conviction under 18 USC § 2113(d) was a crime of violence under the § 924(c) federal gun-enhancement statute.
Interestingly, the court firmly rejected the government’s argument that the defendant forfeited some of his claims by failing to raise them prior to the Supreme Court’s remand.