The issue in this qui tam case was whether the Austin Radiological Association’s (ARA’s) begrudging disclosure during a discovery hearing of the affiliate it had redacted from its document production triggered the public disclosure bar of the False Claims Act, thereby precluding the relator from amending its complaint and adding that affiliate as a defendant. Slip op. at 1-2. The public disclosure bar is triggered only where “substantially the same allegations or transactions as alleged in the action were publicly disclosed.” Id. at 6 (quoting 31 U.S.C. § 3730(e)(4)(A). Magistrate Judge Austin easily distinguished the cases ARA cited and granted the relator leave to amend the complaint and to join the additional defendant. Id. at 5-12.
Magistrate Judge Austin Recommends Sending Ex-Jet to Arbitration
Kassell v. Crafton, No. A-12-CV-669-LY, slip op. (W.D. Tex. Dec. 18, 2013)(Austin, M.J.)
Magistrate Judge Austin recommended that Judge Yeakel compel arbitration in this dispute pitting an ex-NFL player and his wife against their former investment advisor and the advisor’s employer. Slip op. at 26. The disputed provision required arbitration of that “any controversy between the Advisor and the Client arising out of Adviser business or this agreement . . ..” Id. at 4.
After noting the policy reasons favoring arbitration, Magistrate Judge Austin rejected the couple’s reading of the provision as permissive, as well as their assertion that only the “Advisor” (and not his employer) could invoke arbitration. Id. at 7-19. He also was not persuaded by their suggestion that a separate arbitration provision was inoperative because it was in connection with a paid-off loan, and their contention that the employer waived arbitration by seeking a decision on the merits, including by filing a motion for summary judgment. Id. at 23-26.
Magistrate Judge Austin Recommends Summary Judgment on Eggshell Plaintiff’s FDCPA Claims
In this debt collection case, the evidence demonstrated that (a) FRS phoned Karp at work six times, reaching her only with the first and last calls, (b) during the first, Karp remarked, “You can send me anything by letter—that would be great,” and (c) during the last, she said she could not receive calls at work. Id. at 4-6. The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from (a) contacting consumers at work “if the debt collector knows or has reason to know” that the employer prohibits such calls, 15 U.S.C. § 1692c, and (b) engaging in conduct that would harass, oppress, or abuse the consumer, id., § 1692d.
Magistrate Judge Austin concluded that (a) Karp’s “anything by letter” remark was insufficient to trigger FDCPA liability for the subsequent calls, and (b) six calls fell far short of FDCPA harassment. Id. at 8-14. The Texas Finance Code also prohibits frequent telephone calls with the intent to harass a person at the called number. See Tex. Fin. Code § 302.302(4). Karp agreed to “voluntarily dismiss” her claim without prejudice under the statute, but she balked at the entry of summary judgment. Slip op. at 14. Magistrate Judge Austin noted that courts are reluctant to grant such a request so late in the proceedings. Therefore, he recommended summary judgment against Karp. Id. at 16.