WWM Wins Dismissal of Putative Class Action Against Property Management Company

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On April 24, 2018, WWM attorneys Ed Gibbons, Arthur McColgan, and Scott Stirling successfully obtained dismissal of a putative class action filed against WWM client Sudler and Company, in the District Court for the Northern District of Illinois. Horist v. Sudler and Company, Case No. 17 C 8113. (Click here for the Order.)

Plaintiffs brought suit under the Illinois Condominium Property Act (“Condo Act”) and the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”), and asserted common law causes of action, alleging that Sudler – a property management company – and co-defendant, HomeWise, overcharged for documentation needed in connection with selling one’s condo. Specifically, they claimed that Defendants turned the process of selling one’s condo into a “profit center” by causing the associations managed by Sudler to stop providing disclosure documents, which effectively forced sellers to utilize HomeWise, which in turn overcharged for providing the documents. Sudler and HomeWise both filed motions to dismiss.

Judge Robert Gettleman agreed with Sudler that Plaintiffs’ complaint did not contain any factual allegations that the Defendants somehow caused the associations to stop providing disclosure documents. Because of these missing facts, Judge Gettleman found that Plaintiffs did not allege an unfair practice or a violation of the ICFA.

Furthermore, Judge Gettleman held that the Condo Act does not provide a private right of action for its enforcement. In order to state a claim for violations under the Condo Act, Plaintiffs needed to establish an implied right of action in their favor, which they could not, because the Act is meant to protect buyers and associations, not sellers. Accordingly, Judge Gettleman granted the Defendants’ motions to dismiss.

WWM Wins Dismissal of Coverage Case Arising From TCPA Class Action

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On April 30, 2018, WWM attorneys Ed Gibbons, Arthur McColgan, and Jeremy Kerman won a motion to dismiss on behalf of WWM client ACE American Insurance Co., in the U.S. District Court for the Southern District of New York. Flores v. ACE American Ins. Co., No. 1:17-CV-08674.  (Click here for order.)

In an underlying suit, Plaintiff Victoria Flores filed a class action lawsuit against ACE’s insured – Grubhub. The complaint alleged that Grubhub violated the Telephone Consumer Protection Act (“TCPA”) by sending unauthorized text messages to thousands of consumers. Eventually, Flores and Grubhub entered into a Settlement Agreement which provided for an $8 million consent judgment. As part of the settlement, Grubhub assigned to Flores all claims and proceeds under the Grubhub insurance policy issued by ACE, and the parties agreed that the $8 million consent judgement would be paid only out of the proceeds of the Grubhub insurance policy with ACE.

Flores then brought a declaratory judgment action seeking to collect the stipulated $8 million judgment from ACE.

ACE moved to dismiss the action, arguing that, under the policy, two separate exclusions precluded coverage of the claims in the underlying suit. The first was an exclusion for all claims based on “unsolicited electronic dissemination of . . . communications by or on behalf of the Insured to multiple actual or prospective customers,” explicitly including actions brought under the TCPA. The second exclusion excluded claims based on any “violation of consumer protection laws.”

In response, Flores argued that the TCPA exclusion does not apply to the type of communication described in the complaint – individual text messages which were tailored to each customer based on restaurants they had ordered from. Instead, she argued that the exclusion applied to messages or phone calls transmitted or made en massei.e., to multiple recipients at once – as part of spam or mass marketing campaigns. Flores also argued that the “consumer protection law” exclusion did not apply because the TCPA can reasonably be interpreted to be a “privacy regulation.”

Ultimately, Judge Alvin K. Hellerstein agreed with ACE that both exclusions applied. Judge Hellerstein opined that Flores was trying to read requirements into the TCPA exclusion that simply were not there. He wrote: “there is nothing in [the TCPA exclusion] requiring that the text messages sent to the customers be identical or sent at the same time,” and found that the exclusion was unambiguous and clearly excluded coverage. Judge Hellerstein also found Flores’ argument regarding the “consumer protection law” exclusion unpersuasive, writing that a Privacy Regulation as defined in the Policy refers to laws associated with the “control and use” of personal data which require commercial entities collecting such data to adopt security measures to avoid identity theft. That is not the purpose of the TCPA, and thus it is not a privacy regulation. Accordingly, Judge Hellerstein granted ACE’s motion to dismiss.

WWM Client Wins Asylum

WWM Partners recently assisted a 22 year old Kosovo woman in successfully obtaining asylum in the United States.

The client, a Kosovarian immigrant, came to the United States due to her fears of persecution by the Kosovarian government, its citizens, and her family on account of her membership in a particular social group of Kosovarian gay woman.

As part of WWM’s association with the National Immigrant Justice Center (NIJC), WWM assisted the client in preparing her asylum application and represented the young woman at her Immigration Hearing. The client was granted asylum based upon the physical and mental persecution she received while in Kosovo from her father and others in society due to her sexual orientation.