Fordham Law School’s Consumer Litigation Clinic recently teamed with other consumer advocates on an amicus curiae brief to the U.S. Court of Appeals for the Second Circuit, which reinstated a challenge to systemic debt-collection practices that victimize low-income people.
During the fall 2016 semester, Brian O’Toole ’17 and 3L Meredith Cusick reviewed and analyzed dozens of court files involving the practice challenged in Arias v. Guttman, Mintz, Baker & Sonnenfeldt. Their analysis helped reveal the routine nature of the debt collector’s unfair and deceptive practices in seeking to enforce judgments against exempt income.
The Arias complaint alleges that defendant GMBS routinely denies or disregards initial exemption claims from consumers under the Exempt Income Protection Act (EIPA), forcing consumers to defend those claims by personal appearance in court and then benefiting from defaults, said Associate Clinical Professor Marcella Silverman, who guided O’Toole’s and Cusick’s research.
In November 2018, the Second Circuit reversed the district court’s dismissal of the case, holding that Arias stated a cause of action for GMBS’s violating the Fair Debt Collection Practices Act by filing false and misleading affirmations in court and restraining Arias’ bank account in bad faith.
The ruling came as a pleasant surprise, Cusick said, because the “little guy” received a favorable ruling against a firm. “It was exciting to contribute to a case that proves that a different outcome is possible when the law is on your side,” Cusick said.
“The systemic nature of the alleged wrong compelled us to get involved; a lot of people were getting hurt,” Silverman added. “And, because of the nature of exempt income, the people getting hurt are those who can least afford it.”
During the clinical course, Cusick and O’Toole took part in a “volunteer lawyer for the day” program at civil court in Queens County, where they witnessed numerous default judgment cases.
“This experience made Arias sink in, because we saw it happening in front of us,” O’Toole said. “This is what happens everyday in courts across the city, and that’s why it’s so important to make it right.”
O’Toole “stumbled” into the clinic while searching for interesting courses to take during his 3L year. He called the clinical course “one of the best experiences of my career.” O’Toole described the skills he developed in the clinic—working with others, adapting and evolving with cases, reviewing court records—as “incredibly useful” in his first year in corporation litigation with Sullivan & Cromwell LLP.
Cusick enrolled in the clinic as a 2L eager for a hands-on legal experience. Even though she had not taken any consumer classes prior to the clinic, she credited her 1L classes for providing the analytical thinking tools necessary to evaluate the complaint and pore over case law.
“When you’re sitting in class and looking at cases, you often don’t see people; you see issues and interesting fact patterns,” Cusick observed. “The people who bring these cases are living and breathing them. It’s so important for them to be heard.”
Cusick’s clinical experience has already paid professional dividends. While interning at Latham & Watkins last summer, she worked on a pro bono case involving consumer issues. After graduation, she will return to Latham & Watkins to work in litigation.
“I advocate for everyone to give a clinic a try even if it doesn’t seem related to what they want to do long-term,” Cusick said. “It’s an awesome experience to actually practice law while in law school.”
Plaintiff’s counsel in the Arias case are the National Center for Law and Economic Justice, New Economy Project, and the Law Office of Ahmad Keshavarz. Counsel for amicus curiae include Mobilization for Justice, New York Legal Assistance Group (NYLAG), and St. John’s Law School’s Consumer Justice for the Elderly: Litigation Clinic.
