Consumer Lawsuits: Practical Defense Tips

By Stephen J. Torline, Kyle P. Seelbach and Sean D. Tassi, Husch Blackwell LLP

Neighborhood financial services providers have become prime targets of plaintiffs’ lawyers across the country. Armed with favorable consumer-protection statutes, plaintiffs’ lawyers are challenging the industry’s business practices by filing class-action lawsuits in which they seek millions of dollars in cash, debt forgiveness and attorney’s fees.

Your company, however, is not defenseless. Although lawsuits cannot be prevented, proper corporate structuring and the use of arbitration agreements containing class-waiver clauses are two tools that can help your company limit its exposure to class-action suits.

Deter Forum Shopping

With careful planning, a company can structure itself in a way that makes it more difficult for plaintiffs (and those hoping to serve as class representatives) to force the company to defend a nationwide class action in a venue chosen by the plaintiff’s counsel.

In 2005, Congress enacted the Class Action Fairness Act to combat the problem of plaintiffs’ lawyers being free to select the jurisdiction in which they file a lawsuit. Once certain criteria have been shown, CAFA affords a defendant the right to remove a lawsuit filed in state court to federal court.
Although dependent upon the circumstances, defending against class-action claims in federal court is usually preferable to defending against those same claims in state court, primarily because the federal courts are often better equipped to handle class litigation.

Although your ability to utilize CAFA will depend on the specific facts of the case, where your company is incorporated and where your company chooses to maintain its principal place of business will directly impact its ability to invoke CAFA. That is because the threshold question of CAFA jurisdiction compares the citizenship of the plaintiff(s) with the citizenship of the defendant(s).

CAFA can only be invoked in lawsuits where a substantial majority of the plaintiffs of the proposed class and the defendants are “citizens” of different states.

By structuring your company so that its citizenship is different than the citizenship of your typical customer (this is commonly referred to as “diversity”), you will increase the likelihood of satisfying the threshold element of CAFA.

As a general example to illustrate this point, if you intend to operate stores in Missouri, your company could incorporate under the laws of Delaware and maintain its principal place of business in Kansas. Your company would then be a citizen of Delaware and a citizen of Kansas for purposes of CAFA.

Since your stores will primarily service individuals who reside in Missouri, the substantial majority of your customers should be citizens of Missouri.
If a customer brings a class-action suit against your company in Missouri, your company should then be in a better position to invoke CAFA jurisdiction and remove the lawsuit to federal court, since the substantial majority of the plaintiffs and your company would be considered citizens of a different state.

While the availability of CAFA jurisdiction in any specific case will depend on numerous factors, and not just your company’s citizenship, structuring your company such that it is diverse from your typical customer will greatly increase your company’s chances of invoking CAFA jurisdiction if your company is forced to defend against a class-action lawsuit filed in state court.
You should consult your lawyer for legal advice relating to the specific circumstances involved with your company.

Include a Class-Waiver Clause

Arbitration is a contractual agreement between two parties whereby they agree to waive their right to litigate certain disputes in the courts and instead agree to allow a third party (the arbitrator) to decide their claims.

Although arbitration can be preferable to litigation for several reasons, the primary advantage of arbitration is that the parties may be able to set the rules by which they agree to arbitrate.

Submitting any potential disputes to individual arbitration — as opposed to allowing class arbitration — is one such rule that can be incorporated into an arbitration agreement that will also help protect your company from exposure to class action cases.

A class-waiver provision basically prevents either party from serving as a class representative or from joining a class-action lawsuit filed against the opposing party. Instead, both parties agree to only bring their claims on an individual basis.

Requiring customers to pursue individual claims is advantageous, as a practical matter, because individual claims are less expensive to defend and they greatly reduce your overall exposure.

The United States Supreme Court recently held in AT&T Mobility LLC v. Concepcion that such class-waiver provisions are enforceable when incorporated into an otherwise valid arbitration agreement.

Specifically, the court held that the Federal Arbitration Act prohibits states from conditioning the enforcement of arbitration agreements on the availability of class action procedures. Creating a valid and enforceable arbitration agreement is therefore critical to utilizing the benefits provided by class-waiver provisions.

Some courts are undoubtedly reluctant to enforce arbitration agreements because most of those arbitration agreements are found in form contacts, e.g., form loan agreements.

Enforceable Agreement

Although you should consult your lawyer for advice relating to the circumstances involved with your company, there are several principles that may help you create a valid and enforceable arbitration agreement.

• Introduce the arbitration agreement with conspicuous language expressly stating that the loan agreement contains a contract to arbitrate. Utilize all caps and bold font to introduce the various headings of the arbitration agreement, and use the same size font as the font used in the other portions of the agreement. Following these practices makes it difficult for your customers to later argue that the arbitration agreement was buried in the fine print of the loan agreement.
• Provide a mechanism by which your customers can choose to opt out of the arbitration agreement contained in their loan agreements. Regardless of the mechanism you create, clearly explain the opt-out process in the arbitration agreement and give your customers a reasonable time to make their decision. (60 days is usually considered reasonable). These opt-out provisions make it difficult for your customers to later argue that they were forced into or under duress when they contracted to arbitrate.
• Agree to advance the costs associated with arbitration, e.g., filing costs, arbitrator fees, etc., until the case is resolved. These provisions make it difficult for your customer to later claim that the expense of arbitration serves as a barrier to them pursuing their merit-based claims.
• Allow the customer to recover in arbitration any remedy that would otherwise be available in court. For example, your arbitration agreement should expressly state that the customer can recover attorney’s fees, statutory damages and punitive damages in arbitration if those remedies would be otherwise available in a court of law. These provisions make it difficult for your customer to later contend that the purpose of the arbitration agreement is to essentially immunize your company from liability.
• Carve out an exception to the arbitration agreement so that your customers are permitted to file suit against your company in small claims court. Small claims court serve as an effective means of quickly resolving disputes concerning relatively small amounts of damages. Allowing customers to utilize these tribunals makes it difficult for them to later allege that the real purpose of the arbitration agreement is to delay resolution of the dispute, making it futile to file their claims.

Vital Provisions

The foregoing are examples of provisions that may increase the probability of a court enforcing an arbitration provision included in your loan agreement.
Although your company cannot prevent lawsuits, by consulting your lawyer to obtain legal advice regarding these issues, you can take steps to limit the exposure your company may face from class-action lawsuits.

This article provides a general discussion of a legal topic and should not be interpreted as legal advice. Please consult a licensed attorney to discuss how the concepts discussed in this article may apply to any particular situation. The opinions expressed herein are solely those of the authors and not necessarily those of Husch Blackwell LLP.


Latecomers’ Guide to the Gold Business

By BILL KUNKEL

 

While the expression “gold rush” used to bring to mind the ‘49ers, Sutters Mill and striking it rich, today it might make you think of unwanted jewelry, increased traffic and, well, striking it rich.

Maybe so far you have missed out on the rush to buy gold on the part of every retailer from liquor stores to pawnshops to other check cashers and PDLs. It looked like a risky business, perhaps, and now you’re wondering if there’s any gold meat left on the bone or if you simply missed the window of opportunity for this particular profit center.

The good news is that while gold has almost tripled in value over the past half-decade, experts insist that buying the magnificent metal is still quite viable as a supplemental income source for PDLs and check cashers.

Steven Owen of EZ Gold Exchange (www.ezgoldexchange.com), a partnership program that works extensively with PDLs and check cashers, sees the market for precious metals as an ongoing growth sector.

“Gold and silver purchases at our client partner locations continue to grow,” he says. “With gold near record highs, consumers still in need of cash, and inflationary pressures increasing as a result of monetary and fiscal policies around the world, I believe that gold and silver still have considerable upside in the longer term.

In fact, gold would need to approach close to $2,200 per ounce to match gold’s previous historic high — on an inflation adjusted basis — in the 1980s.”

Owen also believes there is a large supply of consumer gold and silver in that has yet to be tapped into. The heyday of selling gold by mail has passed, he says, and consumers are more likely to sell to a local retail store. However, while the going remains good right now, speed to market is of the essence.

Instrinsic Value

Terry Hanlon, president of Dillon Gage Metals (www.dillongage.com), one of the largest dealers in precious metals in the United States, agrees with that assessment.

He notes that gold is among the rare financial assets that possesses intrinsic value as opposed to those that depend on an issuer’s promise to pay.

“Gold is less volatile than most commodities and many equity indices, and it tends to behave more like a currency that’s trending in price,” Hanlon says.

Low-volatility assets like gold represent a source of guaranteed value in long-term savings or investment portfolios. Moreover, its value is determined on the basis of supply and demand.

Although there is plenty of gold laying about above the ground in the form of coins, artifacts and jewelry, production of newly-mined gold has been on the decline for decades. This trend is expected to continue on a global basis as gold deposits are being depleted while ore grades simultaneously decline. Reports of diminishing yields from major gold suppliers such as South Africa and Russia tend to support that outlook.
Hanlon chalks this diminution of mined gold supply to several sources, noting: “Lead times in gold mining tend to be long, meaning production is relatively ‘price inelastic’ or slow to respond to higher prices.” Thus, despite the growth in gold prices, there hasn’t been an increase in gold production.

With financial crises afflicting both the United States and Europe, gold looks consistently better in comparison to currency. Given world economics, demand for the stability offered by gold is not likely to wane.

What to Look At

If you make the decision to work with a partner, Owen offers several points to consider.

“Testing and buying gold are just a small part of rolling out an entirely new business,” he says.

Make sure that your partner is providing you with a business solution, not just equipment and gold testing training. Consider what other services the partner is offering, such as ongoing support, software, operational/logistics management, quality control, marketing, sales training, insurance, regulatory assistance and the like.

“Also, make sure that your partner is using the most accurate testing tools and procedures, not those most convenient for them, because bad purchases — purchase of non-gold items — can significantly eat away at profits,” Owen says.

Quality control, store feedback loop, and value assessment — independent from a refiner — are critical.

“Finally, reviewing items and providing feedback helps minimize bad purchases and mitigates or catches employee theft, and a value estimate, independent from a refiner, helps ensure that the refiner is paying you the true value of your precious metals,” Owen says.

Choosing the Partner Route

Dylan White, who owns 30 CashMax stores in Texas and five Federal Cash Advance locations in Oklahoma, liked the package EZ Gold offers. Like many payday lenders and check cashers who dabble in gold buying, he initially tried doing it himself.

“I ruined my girlfriend’s jewelry,” he says. “And I got into trouble. That was what convinced me not to do it myself. I thought heck, if I can’t do it, I certainly can’t train other people to do it.”

White had been eyeing the business as a potential income stream when he made his first attempts at buying gold. “I had looked at the gold buying business to the point where I knew it was going to be harder than some of [my potential partners] had explained to me. When Steven [Owen] came along the November before last, that’s when I became serious about buying gold.”

White soon found himself both pleased and surprised by the way gold buying worked out for his stores.

“It’s actually been a repeat business issue for us,” he says. “Getting into the business, I thought buying gold was going to be a one-time deal. But the average customer transaction is actually 1.5, so half the people come back to sell to us again.”

But what White likes most about his partnership is that he still doesn’t know how to buy gold. “EZ Gold made it such a turnkey process that I haven’t had to take the time to sit down and learn it; I don’t have to deal with it since they’re pretty much a one-stop shop.”

White has also found ways to motivate employees with regard to buying gold. “The way we get our employees excited about it is that their gold buying gets added into the store revenue, and they get bonuses based on that,” he says.

He adds that some 85 to 90 percent of the people who come into the stores to sell gold have never taken out a loan with his company. “I thought, getting into it, that I’d just be buying gold from my regular customers and I didn’t see a lot of money in that,” White says. “But this is bringing new customers into our stores and once they get to meet us, they find out we do title loans, for example, and they’re interested. I really didn’t expect that.”

Potential Partners

Other operations also partner with retail businesses to facilitate their expansion into the purchase and sale of precious metals.

National Gold Buyers specializes in the purchase of gold and platinum jewelry and, as a FiSCA Affiliate Member, partners with many PDLs and check cashers. Their site (nationalgoldbuyers.net) contains detailed information on partnerships.

New York Gold Refiners (ny
goldrefiners.com) is another gold dealer that specializes in partnerships with retailers. It says the following elements are necessary perquisites for retailers who are considering entry into the precious metals market:
• Brick and mortar location(s) should generate a high volume of foot traffic. They emphasize that their most successful partners have been those that “already deal in financial transactions such as check cashing.”
• You must be licensed, as required by state law, and have proper equipment (an accurate scale that weighs grams, testing equipment to determine the purity of the gold being purchased as well as employee training in the use of that equipment).
• Post appropriate signage letting customers know that you’re buying gold and/or other precious metals.

Retail Gold Brokers (retailgoldbrokers.com) specializes in providing the necessary equipment (except for scales) and training in its use. Training is provided by way of webinar and teleconference formats.

Data Age Business Systems (727-582-9100), meanwhile, provides software containing the information required to get in the business.
“In general, [buying gold and precious metals] is a lucrative business to be in, and one that is ideally suited and synergistic for check cashing and payday loan companies,” Owen says.

“Check cashiers and payday loan stores already have the retail locations and the human resources. If done right, gold-buying can be quickly rolled out in those locations with limited investment, time, and resources and with minimal distraction to their core business. It provides a valuable service that is in demand from their customers.”


Court Slams Door On Forger’s Delays

By RICHARD WEATHERINGTON

A forger who gets caught red-handed passing a bad check and can’t successfully argue against the facts presented will often attack the court’s rulings.

Although the old adage “Justice delayed is justice denied” is often associated with the right to a speedy trial, if a forger unnecessarily tries to delay the proceedings, the check casher can end up being victimized a second time.

Recently, a forger who tried to pass a second bad check at the same check cashing store cried foul after the court refused to allow any further continuances in the her trial.

Known Customer

In March 2007, a woman whose first name was Cheryl, visited a California check cashing business where she cashed a check, made out to her, from another person’s checking account, for $3,240.

The check casher’s manager knew Cheryl as a regular customer and therefore did not question the validity of the check.

The check was returned to the manager from the company’s corporate office a few days later, with a notation that the check was fraudulent.
A senior fraud investigator for the bank from which the check had supposedly been issued verified that the check had been drawn from a nonexistent account. The manager then followed standard collection procedures, but she was unable to contact Cheryl regarding the check.

Appears Again

Almost a year later, in January 2008, Cheryl went back to the check casher and gave the same manager two checks to be cashed.
The manager knew that she still owed the company money from the check the year before.

The manager was suspicious about one of the checks Cheryl presented, which was purportedly drawn from the account of an industrial maintenance and repair company in the amount of $2,876.25. Among other things, the word “maintenance” was misspelled. The manager called the police.

Claims from Estate

After her arrest, Cheryl told the police that the 2007 check was her share of her sister’s estate and she had no idea why there would be any problem with it.

She said the check from the repair company was for paralegal work she had contacted for through a Web site. However, a company employee later verified that the check was fraudulent.

In February 2008, Cheryl was charged with two counts of commercial burglary and two counts of forgery. Between April 2008 and April 2009, her counsel requested and received nine continuances.

On April 2, 2009, Cheryl told the court she needed another continuance because she wanted to retain a private attorney, who was a friend of the family, instead of using the public defender’s services. The court denied her request for a further continuance.

At trial, Cheryl denied telling police that the 2007 check was part of a bequest. She stated that both checks were for different jobs she obtained through the Internet, where her role was to cash checks for third parties in exchange for 8 percent to 10 percent of the proceeds.
At the conclusion of trial, Cheryl was found guilty as charged. The court suspended imposition of sentence and placed her on three years of formal probation, including restitution in the amount of $3,240 and ordered her to spend 240 days in county jail.

Cheryl appealed her conviction to the California Court of Appeals, claiming that the court should have granted a tenth pretrial continuance so that she could retain private counsel in lieu of the public defender.

She also argued the trial court was wrong by permitting the verdict to be read in her absence after she failed to appear in court without explanation.

Matter of Discretion

The decision to grant or deny a continuance, noted the Appeals Court, traditionally rests within the sound discretion of the trial judge.

A defendant who appeals a denial of a request for a continuance, said the Appeals Court, must demonstrate a clear abuse of discretion or the trial court’s decision will be affirmed.

In deciding whether the denial of a continuance was so arbitrary that it violated due process, the reviewing court looks to the circumstances of each case, particularly the reasons presented to the trial judge at the time the request was denied. Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.
Although the right to choose one’s attorney is a component of the right to counsel under the Sixth Amendment, the right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is unjustifiably delaying or arbitrarily desires to substitute counsel at the time of trial.

The United States Supreme Court in 2006 also “recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.”
Cheryl pointed to the 2006 case of People v. Munoz, claiming that blanket concerns about delay were not sufficient.

But in that case, noted the Appeals Court, the court found that the defendant’s repeated and detailed requests for a new attorney reflected a “genuine concern about the adequacy of his defense rather than any intent to delay” the proceedings. The record in that case was devoid of even a suggestion that the defendant had an interest in delay.

Nothing in Common

Unfortunately for Cheryl, said the Appeals Court, the facts in her case had nothing in common with Munoz. The key to the court’s holding in the Munoz case was the defendant’s real concern about his attorney.
Here, Cheryl told the court directly that her request had nothing to do with the public defender’s ability to defend her, but rather stemmed from her own comfort level. And the record, unlike that in Munoz, did suggest that Cheryl had “an interest in delay.”

The Appeals Court said Cheryl’s case was closer to the 2003 case of People v. Pigage, a case in which the defendant had sought a continuance to seek private counsel to replace his public defender on the eve of trial. The appellate court in Pigage upheld the trial court’s exercise of discretion in denying the motion.

The appellate court said the defendant failed to demonstrate that the trial court was wrong. He stated he had exchanged “strong words” with his counsel and “did not feel confident” in his appointed counsel’s representation.

However, the appellate court noted that he waited until the last minute to express those concerns. There was no evidence that Pigage attempted to retain counsel, or had even taken steps to secure funds to hire private counsel.

The appellate court found that the court’s decision to deny the request for continuance to obtain counsel did not constitute an abuse of discretion or a denial of his Sixth Amendment right to counsel.

The Appeals Court noted that Cheryl’s case was not even as strong as Pigage, in which the defendant had clashed with his attorney and expressed a lack of confidence in him. The Appeals Court said that Cheryl did not even go that far in seeking to replace the public defender. Further, she had ample opportunity to retain counsel but failed to do so.


Circling the Wagons

By BILL KUNKEL

As legislators across the United States introduce increasingly draconian statutes aimed at eliminating PDLs from their states, the allure of licensing check cashers and payday lenders either on tribal land or through one of the tribes is becoming increasingly attractive. Continue reading

PLS’ Good Neighbor Policy

By Bill Kunkel

When Bob Wolfberg talks about the community outreach aspect of the PLS stores he operates with his brother, Dan, it isn’t the public relations puffery one generally hears from businessmen looking to pat themselves on the back for tossing the community

a bone.

His genuine passion for PLS’ many charitable ventures is obvious in his voice, as is his belief that, in strengthening the neighborhoods in which they operate, PLS also benefits.

“It’s part of our business plan; it’s part of our mission,” Wolfberg says.

“We’ve been doing it for years. The cornerstone of our mission is to be a good neighbor in our neighborhoods. And part of being a good neighbor is making certain it’s a strong neighborhood. We need a strong neighborhood in order to survive.”

From serving as the exclusive sponsor of Indianapolis’s WRTV’s “Fan Club” to rewarding school children with free bicycles and supporting environmental causes as well as the Hispanic community, PLS is involved in so many charities that it can be difficult to keep track of them all.

The company has charitable budgets at store, regional and company levels. But who decides which events and charities to support?

“In PLS,” Wolfberg says, “decisions are not pushed down, they’re pushed up.” This trickle-up process has led to community projects that were envisioned by everyone from store managers to district managers, while some of the charities were simply presented to PLS.

“Choosing charities and choosing organizations to become involved with is done at the store team level, it’s done at the regional level and it’s also done at the support centers. It’s part of who we are. It’s not done as public relations, though it has a PR benefit. It’s just part of being a good neighbor,” Wolfberg says.

The “Fan Club,” for example, saw an Indianapolis TV station solicit its viewers to donate 20-inch box-style fans, while PLS kicked in $5,000 to purchase even more of the cooling devices.

The fans were then distributed, through the assistance of organizations such as the United Way, to poor families in the city during this past summer’s brutal heat waves.

Wide Variety

The range of projects PLS has embarked upon is impressively diverse. After the company’s logo was updated last summer, for example, PLS employees began donating their old uniform shirts for repurposing as animal bedding at the Evansville Vanderburgh Animal Control Center.

“We’ll get a lot of good use out of PLS’s shirts,” says EVACC Superintendent Monica Freeman. “We really appreciate PLS being such a good neighbor.”

In yet another creative contribution, PLS demonstrated its support of the environment by going green this past Arbor Day and donating 2,012 trees — one for each PLS employee — to American Forests, America’s oldest non-profit citizen’s conservation organization.

“We’re very proud to be associated with American Forests,” Wolfberg says. “Their good work integrates perfectly with our company-wide efforts to reduce paper use and increase recycling.”

PLS has also demonstrated support for ethnic communtiies, as evidenced by its backing of Hispanic Heritage Month held annually in Chicago’s 12th Ward.

One of the celebration’s most festive events is dubbed the “JuntaHispana” and is held in the Windy City’s Douglas Park, where PLS employees were on the scene, handing out candy.

Hometown Heroes

Given its Chicago headquarters, PLS devotes a lot of time, energy and money to helping out with other Windy City. At this year’s 7th annual “Bike the Boulevard,” for example, Chicagoans aboard all manner of ornately decorated bicycles celebrated the day by riding the streets of the Brighton Park and Back of the Yards neighborhoods. PLS supplied a booth and goodie bags, and many of its employees were participants.

PLS has also proven adept at combining business with its community-based activities. Every year, Chicago citizens experience what is known as Chicago City Sticker Day, an event commemorating June 30, the last day for Second City motorists to purchase “City Stickers” for their automobiles before facing a $40 surcharge penalty.

For those in search of their Sticker, 20 of PLS’s service centers in the Chicago area had them on sale (the price is $75 plus a $5.50 convenience fee).

“We make it very competitive between the stores,” Wolfberg says. “Which store is going to sell the most stickers? There’s a year’s worth of bragging rights at stake!”

The competition keeps the stores busy and besides, as Wolfberg points out: “It’s a lot of fun helping people avoid that $40 surcharge. And it helps keep us close to our customers.”

But the events that are closest to the Wolfbergs’ hearts are those that relate to education.

“Everything that has to do with education is so important for our communities, because the local schools must be supported,” Wolfberg says. “If you notice, much of what we do involves education. My personal favorite is a program where we give free bicycles away to students who have perfect attendance.”

Other school-related projects in which PLS has participated so far this year include serving as a sponsor of WGN-TV’s “Back to School” Kids Fair and teaming with B96-FM radio to welcome Chicago area College students back to class via the “Campus Invasion” event.

Separate Operations

PLS is an unconventional business in several ways. For example, rather than combine its check cashing and payday loan services into single stores, it operates PLS Check Cashers (check cashing, money transfers, money orders and bill payments) and the PLS Loan Store (consumer micro-loans and tax preparation services) as independent entities.

Wolfberg believes that check cashing and PDL are completely different businesses that need to be run by completely different teams that are experts in what they do.

“I was asked to address the general session at the FISCA conference in Las Vegas, and one of the things I’m going to talk about is that, if you want to be a specialist, you have to be special,” Wolfberg says.

“In order for PLS and companies in our industry to survive against the new competition from the likes of Wal-Mart, banks, grocery store, etc., you have to be a specialist.”

Editor’s Note: This is a shortened version of the cover story of the Fall issue of Cheklist. To read the entire story, subscribe to Cheklist magazine.