Johnson — Fighting Illegal Debt-Collection Practices

The Challenge

A handful of large debt-collection companies buy time-barred debt for pennies on the dollar, and then seek to recover that stale debt in consumer bankruptcies—without disclosing to the participants or the courts that the debt is unenforceable. This troubling nationwide practice implicates over a billion dollars annually.

The Engagement

Working with NACBA and several leading consumer-protection attorneys, Daniel Geyser orchestrated a nationwide appellate strategy to challenge this practice in federal circuits throughout the country. After Mr. Geyser argued and won a key case in the Eleventh Circuit, which held the collection practice unlawful under the Fair Debt Collection Practices Act (FDCPA), the case proceeded to the Supreme Court. Mr. Geyser presented oral argument in January 2017.

The Result

In a sharply divided decision, the Court ruled 5-3 against the plaintiff. The narrow loss represented one of the few times in recent years where the plaintiff garnered any votes in an FDCPA case before the Court; the plaintiffs in the last two FDCPA cases lost unanimously.

Representing Mississippi — Tribal Jurisdiction

The Challenge

Representing six states as amici before the United States Supreme Court in an important matter concerning the sovereign authority of tribal courts.

The Engagement

A young Choctaw tribe member was molested by his supervisor at a Dollar General store. The question whether the resulting suit could be heard in tribal court reached the Supreme Court. Stris & Maher was retained by the State of Mississippi to prepare and file an amicus brief supporting the tribe’s position that the dispute should be adjudicated in tribal court. Several states and various industry groups had already filed amicus briefs opposing tribal jurisdiction. Nonetheless, Colorado, New Mexico, North Dakota, Oregon, and Washington joined our brief. That was the first time that any state, let alone six, formally supported a finding of tribal jurisdiction in a major Supreme Court case.

The Result

The jurisdiction of the tribal courts to hear the dispute was affirmed by the Supreme Court.

Advising California — ERISA and the ACA

The Challenge

Helping California’s Department of Managed Health Care to navigate the complex intersection of federal and state law governing health insurers.

The Engagement

The passage of the Patient Protection and Affordable Care Act in 2010 was the most important change to the law of health care in years. The particulars of that legislation, and its effect on both ERISA and state law, has given regulators and industry new opportunities to develop and propose innovative approaches to new and old challenges concerning affordable health insurance. Brendan Maher was retained by DMHC to examine the suitability of a variety of potential regulatory approaches in this evolving environment.

The Result

A phased, formal analysis was delivered to the DMHC regarding the opportunities and challenges of potential regulatory paths that could achieve the State’s objectives.

Representing Vermont — Healthcare Preemption

The Challenge

Securing Supreme Court review of a federal court decision limiting Vermont’s ability to collect information about the cost of health care.

The Engagement

Like nearly 20 other states, Vermont sought to create a healthcare database with information about the types and costs of medical services provided to state residents. To advance that objective, Vermont required all insurers to report certain information to state regulators for its database. In 2011, the Second Circuit held that Vermont’s healthcare database program was preempted by the Employee Retirement Income Security Act of 1974 (ERISA). Stris & Maher was retained by Vermont to assist in preparing a petition seeking review by the U.S. Supreme Court.

The Result

Over the objection of the plaintiff and the federal government, and despite the fact that the Court grants fewer than 70 of 8000 such petitions filed annually, our petition was granted in June 2015. It was the first ERISA pre-emption case heard by the Court in nearly 15 years. On the merits, we continued to serve as co-counsel alongside lead counsel, Bridget Asay, who at the time was the Solicitor General of Vermont. (Ms. Asay later joined Stris & Maher.) The Court ultimately held that Vermont law was preempted.