Edward P. Boyle

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Ed Boyle is a co-chair of Venable's Commercial Litigation Practice Group in New York and a co-chair of the firm's Class Action Defense Group. Ed litigates difficult disputes among parties to complex investment, financing, services, licensing, and other business transactions. He has represented clients in disputes over enforcement of residential mortgage-backed security (RMBS) indemnification agreements, earn-out provisions and representations/warranties in merger and asset purchase agreements, agreements regarding the licensing of an artist's intellectual property rights, rights and obligations under hotel management agreements, financing agreements, agreements to provide digital advertising services, and real estate development agreements.

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Litigation surrounding the enforceability of website terms isn’t new.  Indeed, back in 2014, we blogged about the Nyugen case. Yet, courts continue to grapple with the question of what constitutes an adequate disclosure and binds website visitors to the terms and conditions of a service agreement.

Last month, the Seventh Circuit decided in Sgouros v. Transunion Corp. that an online browsewrap contract was not binding because it did not provide notice that the customer was subject to the agreement.  The plaintiff had purchased a credit score from a website, but claimed that he later found out that the credit score he purchased was 100 points higher than one he later received.  As a result, he filed a putative class action alleging violations of the Fair Credit Reporting Act and state deceptive business practice laws.  TransUnion sought to compel arbitration based on its website terms.Continue Reading Don’t Browse Over Your Website Disclosures

After two failed calls in the Eastern District of New York, the Second Circuit last week opened the line for one TCPA plaintiff to plead his case.

On March 12, 2013, Judge William F. Kuntz II of the Eastern District of New York sua sponte dismissed putative class action claims arising under the Telephone Consumer…

burritoPurveyors of mass-retail food products may have a new reason to rejoice this holiday season. On December 2, the U.S. District Court for the Central District of California, in Hernandez v. Chipotle Mexican Grill, Inc., quietly issued a three-page In Chambers Order denying class certification in a false advertising action challenging Chipotle’s claim that its products contain “Naturally Raised” meat. The class certification denial alone is notable given California’s famously broad consumer protection laws. Even more significant is the court’s reasoning, which seems to stem from the growing trend among federal courts of barring class certification on ascertainability grounds.

The Chipotle decision is the latest instance of an emerging obstacle for consumer class action plaintiffs: How to confront the often insurmountable task of reliably identifying disparate members of a proposed class where few, if any members, have documentary proof of their purchases. Earlier this year, the Third Circuit in Carrera v. Bayer Corp. held that in consumer fraud class actions, class certification should be precluded on ascertainability grounds where members of the proposed class are unlikely to have documentary proof of purchase (e.g., packaging or receipts) and no record of specific retail sales exists.

As the Third Circuit explained,
Continue Reading California Court Continues Ascertainability Trend, Denies Class Certification in Chipotle “Naturally Raised” Litigation

The relationship between class actions and arbitration has been a recurrent issue at the Supreme Court in recent years.  The Court has appeared to substantially limit consumers’ ability to bring class actions in court against defendants with which they have an arbitration agreement, as well as to bring class arbitrations when the arbitration agreement does…

Plaintiffs still cannot dial up TCPA claims in New York.

On May 1, 2013, Judge William F. Kuntz, II of the Eastern District of New York denied a motion to reconsider his earlier decision dismissing claims arising under the Telephone Consumer Protection Act and its accompanying rules and regulations for lack of subject matter jurisdiction.…