Teaching Consumer Credit Law in an Evolving Australian Economy

STATE COURTS
Texas Supreme Court discusses calculation under Lodestar Method.
Under Texas law, a claim for attorney’s fees under the Texas Commission
on Human Rights Act is subject to the Lodestar method
employed by federal courts. In a recent decision, the Texas Supreme
Court reversed the standard of proof to recover such fees,
noting, “[w]hile Texas courts have not routinely required billing
records or other documentary evidence to substantiate a claim
for attorney’s fees, the requirement has merit in contested cases
under the lodestar approach.” The court continued, “[w]hen applying
for a fee under the lodestar method, the applicant must
provide sufficient details of the work performed before the court
can make a meaningful review of the fee request. For the purposes
of lodestar calculations, this evidence includes, at a minimum,
documentation of the services performed, who performed them
and at what hourly rate, when they were performed, and how
much time the work required.” El Apple I, Ltd. v Olivas, 55 Tex.
Sup. J. 954 (2012).
Federal banking law preempts a state law regulating convenience
checks. The California Supreme Court held that a state law requiring
credit card companies to make certain disclosures regarding
the use of convenience checks is preempted by the federal National
Bank Act. The court noted, “[i]f disclosure requirements such
as those in [the state law] were allowed to stand, national banks
operating in multiple states would face the prospect of ‘limitations
and restrictions as various and as numerous as the states.’ National
banks would have to monitor requirements as to the content, language,
manner, and format of disclosures for each of the 50 states
(and possibly municipalities as well), and continually adjust their
convenience check offers to comply with the prescriptions of each
local jurisdiction. Such ‘[d]iverse and duplicative [regulation] of
national banks’ engagement in the business of banking … is precisely
what the NBA was designed to prevent.’” Parks v. MBNA
Am. Bank, N.A., 278 P.3d 1193 (Cal. 2012).
their criminal proceedings are complete. The Court reasoned that
the claims were inherently transitory, and, thus, even though the
named plaintiffs’ claims were now moot, that did not make the
class action moot. Heckman v. Williamson Cnty., 55 Tex. Sup. J.
803 (2012).
Lawyer cannot enforce arbitration agreement in retainer contract.
The Supreme Court of Louisiana held that an attorney could not
enforce an arbitration clause when a former client sued him for
malpractice. The plaintiff argued that the arbitration clause could
not be enforced because the state’s rules of professional conduct
prohibit lawyers from limiting liability to a client unless the client
is independently represented by counsel when the retainer agreement
is negotiated. The state supreme court rejected a per se rule
against arbitration clauses in attorney-client retainer agreements.
However, the court emphasized that such provisions must be “fair
and reasonable” to the client. In this case, the court decided that
the defendant’s arbitration clause was unenforceable because he
failed to make the necessary disclosures to the plaintiff. Hodges v.
Reasonover, No. 2012-CC-0043, 2012 La. LEXIS 1962 (La. July
2, 2012).
President of corporation cannot represent business in arbitration proceeding.
The Supreme of Arkansas joined other states in holding
that a corporate officer, director, or employee, who is not a licensed
attorney, engages in the unauthorized practice of law by
representing the corporation in arbitration proceedings. The court
also held that a court, not the arbitrator, should determine issues
regarding legal representation during arbitration proceedings. NI-
SHA, LLC v. TriBuilt Constr. Grp., LLC, No. 11-927, 2012 Ark.
LEXIS 157 (Ark. Mar. 29, 2012).
The Court held that not
every named plaintiff
must have standing at
the time of suit as to
every claim. As long as
the plaintiffs, taken together,
have standing
as to each claim, the
case can proceed.
Texas Supreme Court
discusses standing and
mootness in class actions.
The Court held that
not every named plaintiff
must have standing
at the time of suit as to
every claim. As long as
the plaintiffs, taken together,
have standing as
to each claim, the case
can proceed. The Court
also rejected the county’s
argument that the suit
was moot because all the
named plaintiffs eventually
obtained counsel and
36 Journal of Consumer & Commercial Law