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Eric M. Berman, P.C. v. City of New York

United States Court of Appeals, Second Circuit

August 5, 2015

ERIC M. BERMAN, P.C., LACY KATZEN, LLP, Plaintiffs-Appellees,
v.
CITY OF NEW YORK, NEW YORK CITY COUNCIL, NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, JULIE MENIN, in her official capacity as the Commissioner of the New York City Department of Consumer Affairs, Defendants-Appellants. [*]

Argued: December 13, 2013.

Defendants-Appellants the City of New York, the New York City Council, the New York City Department of Consumer Affairs, and Commissioner of the New York City Department of Consumer Affairs Julie Menin appeal from the February 14, 2013 judgment of the United States District Court for the Eastern District of New York (Eric N. Vitaliano, J.) granting, in relevant part, Plaintiffs-Appellees Eric M. Berman, P.C. and Lacy Katzen, LLP's motion for summary judgment. The district court concluded that New York State's authority to regulate attorney conduct preempted a New York City law regulating certain debt collection activities of attorneys (" Local Law 15" ). In our previous opinion in this case, we certified two questions underlying the district court's preemption analysis to the New York Court of Appeals. The Court of Appeals subsequently concluded that New York State's authority to regulate attorney conduct does not preempt Local Law 15. Consistent with the Court of Appeals' opinion, we vacate the judgment of the district court in relevant part and remand for further proceedings consistent with this opinion.

JANET L. ZALEON, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Kristin M. Helmers, Nicholas R. Ciappetta, on the brief), New York, NY, for Defendants-Appellants.

MAX S. GERSHENOFF, Rivkin Radler, LLP (Evan H. Krinick, Cheryl F. Korman, Michael P. Versichelli, on the brief), Uniondale, NY, for Plaintiffs-Appellees.

Carolyn E. Coffey, MFY Legal Services, Inc., New York, NY; Theodora Galacatos, Feerick Center for Social Justice, New York, NY; Claudia Wilner, New Economy Project, Inc., New York, NY, counsel for amici curiae in support of Defendants-Appellants.

Before: POOLER, PARKER, and CHIN, Circuit Judges.

OPINION

PER CURIAM:

This case returns to us following certification to the New York Court of Appeals. Defendants-Appellants the City of New York, the New York City Council, the New York City Department of Consumer Affairs, and Commissioner of the New York City Department of Consumer Affairs Julie Menin appeal from a judgment of the United States District Court for the Eastern District of New York (Eric N. Vitaliano, J. ), entered on February 14, 2013. In relevant part, the district court granted Plaintiffs-Appellees Eric M. Berman, P.C. and Lacy Katzen, LLP's motion for summary judgment, deeming New York City's Local Law 15 void as applied to law firms that seek to collect debts. Finding Local Law 15's regulation of certain attorney debt collection practices in conflict with New York State's authority to regulate attorney conduct, the district court concluded that the provision was preempted by State law. Eric M. Berman, P.C. v. City of New York, 895 F.Supp.2d 453, 469-73 (E.D.N.Y. 2012) (" Berman I " ).

In our prior opinion, recognizing that Plaintiffs' challenge " raise[d] unresolved and significant issues concerning the scope of New York State's regulatory authority over attorneys," we certified two questions underlying the district court's preemption analysis to the New York Court of Appeals. Eric M. Berman, P.C. v. City of New York, 770 F.3d 1002, 1003 (2d Cir. 2014) (" Berman II " ). In response to our certified questions, the Court of Appeals has now held that Local Law 15 is " not preempted" by New York State's authority over attorney conduct. Eric M. Berman, P.C. v. City of New York, __ N.E.3d __, 2015 WL 3948182 (N.Y. June 30, 2015) (" Berman III " ). Given the Court of Appeals' holding, we vacate the district court's judgment in relevant part and remand for further proceedings consistent with this opinion.

BACKGROUND

The background of this case is set forth in greater detail in our previous opinion. See Berman II, 770 F.3d at 1003-05; see also Berman I, 895 F.Supp.2d at 458-65. We assume familiarity with the prior opinions in this case, offering an abbreviated recitation of the facts and procedural history.

New York City Local Law 65 regulates debt collection agencies, and, inter alia, requires such agencies to obtain a license prior to engaging in debt collection activities. As originally enacted, the law excluded from its definition of debt collection agencies " any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client." App'x at 166.

In 2009, New York City enacted Local Law 15, amending Local Law 65. Local Law 15 changed the definition of " debt collection agencies," stating that the term does not include:

any attorney-at-law or law firm collecting a debt [as an attorney] in such capacity on behalf of and in the name of a client solely through activities that may only be performed by a licensed attorney, but not any attorney-at-law or law firm or part thereof who regularly engages in activities traditionally performed by debt collectors, including, but not limited to, contacting a debtor through the mail or via telephone ...

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