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Federal appellate court affirms dismissal with prejudice


Washington, DC (December 12, 2011) – A federal appellate court affirmed dismissal with prejudice of a nationwide privacy class action filed against Venable client Bank of America.  With a twelve-page unpublished opinion in Gonzalez v. Bank of America, et al. (No. 11-20174), the United States Court of Appeals for the Fifth Circuit yesterday affirmed dismissal of state common law and federal claims under RICO, Access Device Fraud and Electronic Funds Transfer Act statutes. 

The dismissed case challenged enrollments in an accidental death insurance program, and alleged that the bank and its co-defendants violated privacy policies and engaged in deceptive data pass and telemarketing practices while offering the insurance products to depositors. 

The case was originally dismissed in February 2011 by the federal court in Houston, granting defendants’ Rule 12(b)(6) motions asserting that the plaintiff’s amended complaint failed to state a claim and failed to meet modern pleading requirements under the Supreme Court’s Twombly and Iqbal decisions.

On December 12, 2011, the Fifth Circuit affirmed dismissal with prejudice on grounds that generalized allegations of illegal conduct, without alleging specifics about the named plaintiff’s relevant transactions and injuries, failed to satisfy modern pleading requirements. 

Venable litigation partner Tom Gilbertsen was lead counsel to Bank of America in the matter.  “A common class action pleading tactic is to speculate about the defendant’s business practices and arrangements, based only on ‘information and belief,’ while saying next to nothing about the named plaintiff’s own conduct and injuries.  In the Gonzalez matter, this approach failed to satisfy modern pleading requirements,” Gilbertsen said of the decision. 

Along with Gilbertsen, Locke Lord LLP’s Robert Mowrey also represented Bank of America N.A., Banc of America Insurance Services, Inc. and Banc of America in the matter.  Co-defendants included Intersections, Inc. and AIG.

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