Mark J. Levin

• Providian Fin. Corp. v. Coleman, No. 02-60943 (5th Cir. May 21, 2003) (per curiam), where Providian brought a declaratory judgment action in federal district court seeking to compel arbitration of anticipated claims by cardholders who had previously opted out of a class action against Providian and were threatening to commence new actions; the district court abstained and dismissed Providian's action, and the Fifth Circuit Court of Appeals reversed, holding that abstention was improper given the presence of important federal law issues arising under the Federal Arbitration Act
• Cappalli v. National Bank of the Great Lakes, 281 F.3d 219 (3d Cir. 2001), where the Third Circuit Court of Appeals affirmed the federal district court's order compelling arbitration of claims against Saks' credit card bank, which were brought under Sections 85 and 86 of the National Bank Act
• Murray v. Cross Country Bank, No. 05 C 1252, 2005 WL 2644961 (N.D. Ill. Aug. 15, 2005), where the federal district court held that Congress, in amending the Fair Credit Reporting Act in 2003, eliminated private actions against users of consumer reports under Section 615 of the FCRA and replaced such actions with administrative enforcement mechanisms
• Gipson v. Cross-Country Bank, 294 F. Supp. 2d 1251 (M.D. Ala. 2003), later op. 354 F. Supp. 2d 1278 (M.D. Ala. 2005), where the federal district court compelled arbitration of plaintiff's individual claims, dismissed plaintiff's class action allegations arising under the Fair Credit Billing Act, and rejected plaintiff's contention that the arbitration clause was unconscionable under Alabama law; in a subsequent action by the bank to enforce the order compelling individual arbitration, the court held that the court–not an arbitrator–has the authority to decide the "gateway" issue of whether an express class action waiver in a consumer arbitration agreement is valid and enforceable and that a court is authorized by Section 4 of the Federal Arbitration Act to intervene in an arbitration for the purpose of enforcing the express terms of the parties' arbitration agreement
• Kennedy v. Conseco, No. 00-CV-04399 (N.D. Ill. Jan. 11, 2001), where the federal district court held that evidence submitted by a credit card issuer and the presumption of receipt were sufficient to establish that a change in terms notice, adding an arbitration clause, was delivered to the consumer, notwithstanding the consumer's claimed inability to recall having received any such notice; in an earlier opinion in the same case, 2000 U.S. Dist. LEXIS 17704 (N.D. Ill. Nov. 29, 2000), the court rejected all of the plaintiff's legal defenses to arbitration, including arguments that the clause was unenforceable because: (1) arbitration would interfere with her statutory rights under TILA; (2) arbitration was was too expensive; (3) arbitration was inconsistent with a class action proceeding; and (4) the change in terms notice did not comply with TILA
• Tsadilas v. Providian National Bank, No. 4948N, 2004 WL 2903518 (N.Y. App. Div. Dec. 16, 2004), review denied, (N.Y. Ct. App. 2005), where the New York Appellate Division affirmed the trial court's order compelling arbitration of plaintiff's individual claims arising under New York law and rejected the plaintiff's contention that the class action waiver in the arbitration agreement was unconscionable and that the arbitration provision could not be added to the cardholder agreement through a change-in-terms notice
• Rosen v. Saks Inc., 2003 Ill. App. LEXIS 1252 (Ct. App., 1st Dist. Oct. 8, 2003), review denied, 2004 Ill. LEXIS 142 (Ill. Jan. 28, 2004), where the plaintiff brought a class action lawsuit against Saks contending that the company violated the Illinois Consumer Fraud Act by charging tax on clothing alterations, Saks moved to compel arbitration pursuant to an arbitration agreement that contained a class action waiver, the trial court denied the motion on the ground that the class action waiver was unconscionable under Illinois law and against Illinois public policy, and the Illinois Court of Appeals reversed, holding that such a clause is neither unconscionable nor against public policy, even though plaintiff's claims were small
• Providian National Bank v. Screws, 2003 Ala. LEXIS 298 (Ala. Sup. Ct. Oct. 3, 2003), where the Alabama Supreme Court held that Providian's arbitration provision was not unconscionable because, inter alia, cardholders were given the right to reject it without affecting the status of their accounts
• Boesch v. Best Buy Co., Inc., No. 1-97-0476 (Ill. Ct. App. Aug. 17, 1998), where the court dismissed (i) TILA claims brought against the retailer in a private label credit card program, in part on the ground that the bank, not the retailer, was the only entity required to make disclosures, and in part on the novel theory that the plaintiff could not challenge statement disclosures where the statute of limitations had already run as to the same disclosures in the agreement and (ii) state UDAP claims, in part on the ground that the retailer did not mislead customers into believing that it was extending credit, and in part on the ground that the bank had the right to export rates and fees under federal and Delaware law
• Parker v. SLM Financial, Inc. (No. 2418, C.P. Phila. Co., Feb. 7, 2005), where the trial court granted summary judgment in favor of the defendants and denied plaintiff's motion for class certification on breach of contract and state UDAP claims based upon the plaintiff's deposition testimony that he had read and fully understood the loan documents and was not confused by them

Mark has also successfully defended insurance companies in federal and state courts in more than 15 class actions arising under automobile and homeowner's insurance policies and has also defended insurance companies in numerous complex individual actions, including claims for defamation, obstruction of justice, malicious prosecution, and bad faith. The legal questions posed in the class-action cases have included:

• Whether an insurance company has a duty to pay the insured "undisputed amounts" prior to arbitration of the insured's UM/UIM automobile insurance claim
• Whether an insurance company, in addition to repairing a car that was involved in an accident, is obligated to pay the insured the car's so-called inherent "diminished value" resulting from the fact that it was involved in an accident
• Whether an insurance company has the right to charge retroactive premiums after the insured's UM/UIM automobile insurance coverage is increased retroactively
• Whether an insurance company properly provided statutorily required comparisons of the premium charges applicable to full tort and limited tort coverage
• Whether an insurance company's limited tort option form accurately described the automobile insurance coverage provided
• Whether an insurance company's UM policy requirement that when there is no physical contact between a hit-and-run vehicle and the insured's vehicle, the facts of an accident must be independently corroborated violates public policy
• Whether an insurance company is obligated to reimburse insureds who attend court proceedings at the company's request lost wages and travel expenses absent a specific demand by the insured
• Whether an insurance company failed to timely pay interest on overdue payments to doctors who treat its insureds, as required by the automobile insurance statute
• Whether an insurance company breached its homeowner's policy by failing to "match" partial exterior repairs to the undamaged parts of the exterior
• Whether an insurance company is permitted to depreciate the cost of automobile repairs in partial loss situations
• Whether an insurance company breached its homeowner's policy by refusing to make continuous repairs to roof and siding damage
• Whether an insurance company properly included general contractor's overhead and profit in actual cash value payments made to insureds on physical damage homeowner's claims
• Whether an insurance company properly paid proceeds to beneficiaries named in annuity policies
• Whether the court's denial of class certification requires remand of a case removed to federal court under the Class Action Fairness Act