In catastrophic injury cases, defense counsel are most familiar with the first responder investigations conducted by local and state police and fire departments. In death cases, however, there is a third public responder, the local Medical Examiner’s Office.
United States District Court for the Northern District of West Virginia
recently dismissed West Virginia Consumer Credit and Protection Act (WVCCPA)
consumer protection claims because the plaintiffs lacked standing as a result
of their bankruptcy discharge. Fabian, et al. v. Home Loan Center,
Inc., et al., No. 5:14-CV-42, 2014 WL 1648289 (N.D. W. Va. Apr. 24,
2014). Claims under the WVCCPA are available to a “consumer,” defined as “any
natural personobligated or allegedly obligated to pay any debt.” W. Va. Code §
46A-2-122(a) (emphasis added). The court reasoned that because the plaintiffs
were relieved of personal liability for the debt by virtue of the discharge
that they received in bankruptcy, they were no longer obligated to pay the debt
and therefore could not meet the definition of a consumer. In reaching its
decision, the court cited an opinion from the United States Court of Appeals
for the First Circuit, which applied the same argument to claims brought under
the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et
seq. Arruda v. Sears, Roebuck & Co.,
310 F.3d 13, 23 (1st Cir. 2002).
From a case involving allegations of criminal export violations, falsified board meeting minutes, and insider trading, defense attorneys can find renewed hope for defeating whistleblower claims. In Feldman v. Law Enforcement Associates Corporation, __ F.3d __, 2014 WL 1876546 (4th Cir. 2014), a unanimous panel of the United States Court of Appeals for the Fourth Circuit affirmed a district court’s entry of summary judgment for the defendants on claims brought under the anti-retaliation provision of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A. After analyzing the evidence, the court of appeals determined that the plaintiff had failed to establish that any protected activity was a contributing factor in his termination and that he had therefore failed to establish a prima facie case of retaliation. The result is a well-reasoned opinion demonstrating how a whistleblower’s burden is not met absent sufficient evidence.