Carlson Lynch Files Appeal Challenging Retroactive Elimination Of Consumer RightsBy Jamisen Etzel On July 17, 2013
On July 15, Carlson Lynch and attorneys from Public Citizen in Washington, D.C. filed an appeal in the Fifth Circuit Court of Appeals. The appeal centers around the important issue of whether an amendment that eliminates statutory consumer rights will apply retrospectively to pending lawsuits based on events that took place before the change in the law.
In a lawsuit filed in 2010, Plaintiff Lisa Mabary alleged that Defendant Home Town Bank violated her rights as a consumer by charging ATM transaction fees without providing proper notice. In December 2012, while the litigation was ongoing, Congress amended the law upon which the lawsuit was based, eliminating future lawsuits of that nature. Congress did not include a specific instruction for retrospective application in the amendment. In March 2013, Judge Ellison of the United States District Court for the Southern District of Texas dismissed the case and denied class certification, finding that the amendment applied retrospectively, effectively eliminating the basis of Plaintiff Mabary’s lawsuit.
Carlson Lynch and Public Citizen are appealing Judge Ellison’s ruling in order to protect consumers who filed legitimate lawsuits to vindicate their rights. If the district court’s opinion is upheld, legitimate pending lawsuits could be eliminated by a change the law, even if a valid case has been pending for months or years and Congress does not explicitly intend a retrospective application. This variety of retrospective application seriously jeopardizes the ability of consumers to bring private lawsuits to enforce consumer rights laws. This type of loophole would allow defendants to escape liability for consumer rights violations after the fact through corporate lobbying and anti-consumer legislation.
In this case, Carlson Lynch will be attempting to achieve its fourth recent federal appellate court reversal.
The case is Mabary v. HomeTown Bank, No. 13-20211, in the United States Court of Appeals for the Fifth Circuit.