Rental history sharing could trigger Fair Credit Reporting Act – More difficult for plaintiffs to obtain class certification – The new mortgage foreclosure formalism . . .

From my real estate law blog,

The following is a potpourri of timely relevant real property legal news.

FTC warns data brokers that provide tenant rental histories they may be subject to Fair Credit Reporting Act –

From the FTC website, Click Here For Link:

“The Federal Trade Commission has warned the operators of six websites that share information about consumers’ rental histories with landlords that they may be subject to the requirements of the Fair Credit Reporting Act (FCRA).
The letters inform the recipients that if they meet certain criteria, namely collecting information on tenants and their rental history and providing that information to landlords so they can make judgments about renting to those tenants, they are considered credit reporting agencies and are subject to certain legal requirements.
Among the requirements cited in the letter are the companies’ obligation to protect the privacy of tenants whose information they collect, including ensuring that those requesting information about tenants have a legitimate reason to acquire it. The letter reminds the companies of their obligation to ensure that the information they provide is accurate, to give consumers a copy of the information about them on request, and to allow consumers to dispute information they believe is inaccurate. The letters also note that the companies must notify landlords of their requirements if they use the data to deny housing to a tenant, and to notify the sources of their information of the requirement that they provide accurate information.”

More difficult for plaintiffs to obtain class certification –

Comcast Corp. v. Behrend, 569 U.S. __ (2013)

In an important case for defense counsels’ toolbox, the U.S. Supreme Court has recently held in Comcast Corp. v. Behrend that before a class can be certified in a class action suit the trial court must undertake a rigorous analysis to determine that the requirements for class certification have been met which might also require the court to address the underlying merits of the case. More particularly, the Court held that the trial court did not address the fact that the plaintiffs’ damages model and related expert witness testimony could not distinguish damages between the various liability theories.

New [Mortgage Foreclosure] Formalism in the Aftermath of the Housing Crisis –

Click on the following link if you are interested in a discussion about the “new” (or return to) formal mortgage foreclosure procedures in the aftermath of the housing crisis, Click Here For Paper.


Dave Tate, Esq. (San Francisco)

Quentin gets hit by pitch, Quentin charges Greinke on the mound, Greinke breaks collarbone in brawl – any liability, damages, defenses . . . you decide

Just pondering – not a full or legal evaluation of course – sort of like a bar exam question – in MLB Padre hitter Quentin and Dodger pitcher Greinke have a history and Quentin has been hit by Greinke pitches before – in the current game Quentin is batting and Greinke is pitching – Greinke hits Quentin with a pitch – Quentin believes that Greinke is throwing at him or at least intentionally pitching close – Quentin reacts to the hit and charges the Greinke on the mound – Quentin hits or slams into Greinke – benches empty and players scuffle at the mound – Greinke suffers a broken collarbone.  Click Here For Story And Video.

Here are some thoughts and questions.  Not exhaustive.

Is there liability against Greinke and possibly against his employer the Dodgers for hitting Quentin with a pitch, what are Quentin’s injuries or damages if any, and are there defenses to any possible liability?  Negligent hit, risky intentional close pitch, or possible intentional hit?  Being hit by a pitch – whether simply a badly thrown pitch, possibly risky brush back, or intentional – simply part of the game – assumption of the risk?  If it is believed that the pitch was risky or intentional, is there any employer liability for possible risky or intentional act of employee?

Is there liability for Greinke’s broken collarbone?  What is the evidence indicating who or what caused the break (a lot of players from both teams charged or gathered around the mound)?  What does the video show?  Fights or charging the mound or the pitcher – just part of the game, especially when a batter gets hit by a pitch – assumption of the risk?  If Quentin’s slam on Greinke caused the break – does it matter that no evidence will indicate that Quentin intended to break Greinke’s collarbone.  Does it matter if Quentin was provoked into his action by Greinke’s pitch?  If Quentin caused the break, or if any Padre player caused the break, are the Padres possibly liable as the employer?  Do the Dodgers also have a claim for damages that result to them from not having the use of their pitcher for 4-6 weeks as the broken collarbone heals?

Are some or all of these issues already separately addressed by the baseball owners’/players’ collective bargaining agreement, or some other agreement, rule or regulation?

Enjoy, Dave Tate, Esq. (San Francisco)

Accounting securities suits less likely to be dismissed, costlier to settle – from D & O Diary

Forwarding this link from the D&O Diary blog – this should be a topic of interest to some of my blog visitors – securities litigation accounting related suits are less likely to be dismissed, take longer to resolve and take a greater proportion of total securities suit settlement dollars,  Click Here For Article.

One of my opinions about securities suits and liability: as plaintiffs are required to prove scienter in many of these cases, with the design, implementation, oversight, monitoring and improvement of proper risk and uncertainty management, processes and procedures, companies should be able to substantially reduce their exposure to liability and damages.

Dave Tate, Esq. (San Francisco)

Persuasive Litigator article, bullet point text v. graphics, a good read to consider . . .

Click on the link below for a good analysis from the Persuasive Litigator, arguing that you should not use or that you should use very little bullet point text in your presentation slides – instead more effectively use graphics with no or minimal text because of the way that people process information. Click Here For Article Link.

Dave Tate, Esq. (San Francisco)

A2L Consulting blog post, 11 Great Social Media Videos for Litigators – why I like it – good social/business media

A blog post from A2L Consulting that I like, 11 Great Social Media Videos for Litigators and Litigation Support, Click Here For Link.

Why do I like it? Because it’s catchy, interesting, and relevant; it discusses materials prepared by other people or organizations; it’s well-written and eye-appealing; and mixed in with everything else, it also tells you all about A2L Consulting, their projects or tasks and their successes. Good social/business media.

Dave Tate, Esq. (San Francisco)

Discussion about a worthwhile video from The Audit Committee’s Role and Structure

An audit committee related video discussion from, This Week in the Boardroom: 04-04-13, The Audit Committee’s Role and Structure with TK Kerstetter, President, Corporate Board Member, and Trent Gazzaway, National Partner, Audit Services, Grant Thornton LLP.  Click Here To View The Video.

My thoughts.  This is a worthwhile video for its discussion (16+ minutes), particularly Mr. Gazzaway’s comments directly relating to the audit committee and the process of the audit committee reporting back to the board.  Mr. Gazzaway went into greater detail than I anticipated, and he didn’t give the board a free pass to simply delegate to the audit committee.  Mr. Gazzaway did remind us that the board remains responsible for oversight, and for oversight of the audit committee – it isn’t appropriate to simply rubberstamp the audit committee’s recommendations.  Agreed.  As we know, the board has a duty to exercise diligence, inquiry, and decision making, including over the committees of the board.

Mr. Kerstetter also asked Mr. Gazzaway asked about ERM.  I prefer “risk and uncertainty management” more in line with the discussion contained in ISO 31000.  To be fair, the video discussion did not intend or purport to cover the risk management topic area, which would be impossible given the time allocated.  And, risk and uncertainty management should be a separate discussion.

Mr. Gazzaway is correct when he says that this topic area is still in its early stages.  In fact, his comments, at least from my viewpoint, confirm that there is a current need for discussion about how to handle risk and uncertainty management.

The board is responsible for the oversight of the entity’s risk and uncertainty management.  And, if the aboard appoints a committee, I believe that it is best for the board to appoint a separate risk committee instead of delegating risk to the audit committee although delegation to the audit committee also is acceptable – the audit committee already is sufficiently busy, the potential areas of risk exceed the traditional areas addressed by the audit committee, and there is no automatic guarantee that the audit committee members are the best board members for the risk oversight topic area.  However, as we know, even if the board delegates to a risk committee, the board remains responsible for active risk and uncertainty oversight.  Whereas the entity’s actions, processes, attitude and governance relating to day-to-day risk and uncertainty management is entirely different and more detailed, of course – but those are discussions for different materials.

I also appreciated Mr. Gazzaway’s comment or warning about Regulation FD and communications with shareholder or stakeholders.  This also should be a separate topic of discussion.

View the video.  Enjoy.  Dave Tate, Esq. (San Francisco)