Category Archives: Class Action

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Court to Agency: Is That Your Final Answer on Soundboard Technology?

In a blow to the soundboard industry, the D.C. Circuit recently ruled in Soundboard Association v. FTC, No. 1:17-cv-00150 (D.C. Cir. Apr. 27, 2018) that the Federal Trade Commission’s November 2016 opinion letter, which reclassified soundboard technology as “robocalls” under the Telemarketing Sales Rule (TSR), is not subject to judicial review. We previously blogged about … Continue Reading

New Jersey Truth in Consumer Contract Warranty and Notice Act: New Jersey Supreme Court Holds That Injury Is Required

Over the past few years, class action plaintiffs have filed a slew of lawsuits against online retailers under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), which prohibits a seller from offering or entering into consumer contracts that contain any term that violates a “clearly established” New Jersey or federal law. … Continue Reading

Another TCPA Decision Involving Nonprofits Results in Dismissal of Plaintiff’s Claims

The Telephone Consumer Protection Act (TCPA) has been making news of late, with the U.S. Court of Appeals for the District of Columbia’s partial rejection of a Federal Communications Commission rulemaking grabbing most of the headlines. We reported on that here. It is understandable that the D.C. Circuit’s decision has captured the attention of telemarketers … Continue Reading

The Department of Justice’s Consumer Protection Branch Believes a Coupon-Driven Class Action Settlement Is “Unfair” and States it Is Cracking Down on “Unfair” Class Action Settlement Proposals

Is the government about to make it harder for companies to settle consumer class actions? The Department of Justice’s Consumer Protection Branch, in a Statement of Interest (Statement), has requested that a Judge set aside a proposed class action settlement that would enrich plaintiffs’ attorneys to the tune of nearly $2 million. Specifically, the DOJ … Continue Reading

In Landmark Decision, Court Defines the Contours of the Tax-Exempt Nonprofit Exception to the TCPA

As previously discussed on this blog, the Telephone Consumer Protection Act (TCPA) prohibits “telephone solicitations” to numbers listed on the National Do-Not-Call list (NDNC). There is a rarely litigated exception to the TCPA’s do-not-call provisions, however, for calls placed by or on behalf of tax-exempt, nonprofit organizations. On October 11, 2017, in Spiegel v. Reynolds, … Continue Reading

The Tide Is Slowly Turning Against Food Labeling False Advertising Claims That Do Not Involve Affirmative Misrepresentations

Joining a growing trend in federal court jurisprudence, the U.S. District Court for the Central District of California dismissed a class action complaint because it found that the Mott’s fruit snacks at issue did not affirmatively misrepresent their contents. In short, the court held that Mott’s fruit snacks’ labels could not deceive consumers because they … Continue Reading

Fan Was Expecting Goldfinger, but Instead Got Oddjob: Woman Sues Movie Studios over James Bond Movie Collection

James Bond is best known for the cars, the adventures, the spy gadgets, and the villains he (generally) defeats by the end of the movie. And, like most big-screen heroes, James Bond is only as good as the unique adversaries, from men with golden guns to odd fellows, he faces in the 26 24 all … Continue Reading

Springtime for Food Marketers? Two Big Wins in California in Recent Days

The coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California. In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it … Continue Reading

‘Til Contract Termination Do We Part: Circuit Courts Reach Differing Conclusions on Whether TCPA Consent Survives the Termination or Expiration of a Contract

Under the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a … Continue Reading

Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

When courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc. Last week, however, the Ninth Circuit Court of Appeals, which had previously opted … Continue Reading

Why the Caribbean Cruise Line Record-Breaking TCPA Settlement Could Contribute to “The End of the [TCPA] World As We Know It” (and We Feel Fine)

Caribbean Cruise Line Settlement (Revised 10/13) A Telephone Consumer Protection Act (“TCPA”) class action litigation, Birchmeier, et al. v. Caribbean Cruise Line Inc., et al., No. 1:12-cv-04069 (N.D. Ill.), has been winding its way through the court system for four years and finally settled this month. Caribbean Cruise Line and its co-defendants, who were sued … Continue Reading

$500 is the Max – The TCPA is Not a Fee Shifting Statute

Recently, there have been numerous cases dismissed because plaintiffs have treated the Telephone Consumer Protection Act (TCPA) like a business opportunity rather than as a consumer protection statute. Courts also have had to step in over the past several months to reign in plaintiffs’ counsel when it comes to their attorneys’ fees. Such is the … Continue Reading

Class Action Labeling Claims Partially Evaporated, But What’s Left May Signal a Revival of “Evaporated Cane Juice” Claims

Earlier this year, we discussed the Ninth Circuit’s decision staying a consumer class action against Chobani challenging its listing of “evaporated cane juice” as an ingredient on its yogurt labels. According to the plaintiffs in that case, “evaporated cane juice” was simply code for sugar, and Chobani therefore allegedly misled them about the healthiness of … Continue Reading

No Concrete Injury or Tendering Payment = Moot?

TCPA Dismissal Raises More Questions Than It Answers The U.S. District Court for the District of New Jersey recently dismissed a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA) on grounds that the Court lacked subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Yet, the one-page dismissal order leaves more … Continue Reading

The CFPB’s Proposed Rule Will End Mandatory Arbitration Clauses

Any company that is regulated and examined by the Consumer Financial Protection Bureau (CFPB) knows how expansive the Bureau’s reach is. Despite challenges in the Congress and the courts, the CFPB is not slowing down. On May 5, 2016, the CFPB released a notice of proposed rulemaking that would ban consumer financial companies from using … Continue Reading

Ninth Circuit Stays Class Action Food Labeling Lawsuit Until the FDA Completes Review

The pitter patter of class action footsteps that food companies hear may have gotten a bit quieter, at least for now, based upon a Ninth Circuit decision in Kane v. Chobani this week.  The lawsuit centers on Chobani’s use of the terms “evaporated cane juice” and “only natural ingredients” on its yogurt labels.  According to … Continue Reading

Court Rules Settlement Offers Can’t Kill Class Actions

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification. In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act … Continue Reading

Postscript to Luna v. Shac LLC: Human Intervention Still Precludes Finding That Strip Club’s Dialing Platform Constitutes an Autodialer Under the TCPA

Last month, we blogged about the U.S. District Court for Northern District of California’s recent decision entered in Luna v. Shac, LLC, — F. Supp. 3d –, No. 14-cv-00607 (N.D. Cal. Aug. 19, 2015), which awarded summary judgment to the defendant-gentleman’s club in a Telephone Consumer Protection Act (“TCPA”) class action.  You can read that post … Continue Reading

“There’s a Storm Coming, Mr. Wayne” – FCC Decides to Release Robocall and Telemarketing Consumer Complaints

In the most recent installment of the Batman movie franchise, The Dark Knight Rises, Anne Hathaway’s character, Selina Kyle, whispers ominously into Bruce Wayne’s ear, “There’s a storm coming, Mr. Wayne.  You and your friends better batten down the hatches . . .”  Hathaway was forecasting the onslaught of villains who, shortly thereafter, stormed Gotham … Continue Reading

Yahoo! Says Yahoo! In Defeating Class Certification in TCPA Texting Case

In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (“TCPA”).  The litigation arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a … Continue Reading
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