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
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
We all love a good bargain, but sometimes a good deal seems too good to be true. In 2011, Cynthia Spann went bargain-hunting at a California J.C. Penney, and walked out convinced that she had saved over 30%. However, she later discovered the products she bought at a “bargain” price had never really been sold … Continue Reading
On June 19, 2015, the U.S. Court of Appeals for the Fourth Circuit issued its decision in In re GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (No. II), — F.3d –, No. 14-1724, 2015 WL 3798174 (4th Cir. June 19, 2015), handing a significant victory not just to the defendants in that multidistrict … Continue Reading
While plaintiffs’ attorneys seek to streamline the filing of class actions under the Telephone Consumer Protection Act (“TCPA”), a recent court decision serves as a reminder that there are clear limits to a plaintiffs’ ability to recover statutory damages under a theory of vicarious liability. On May 18, 2015, the U.S. District Court for the … Continue Reading
The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification. Thus, the Supreme Court could … Continue Reading
By now, class action suits over foods using the term “natural” are old news following the age old American story: class action plaintiff meets product, product assures plaintiff it is all-natural, plaintiff finds something in product that it doesn’t think is natural, lawsuit ensues. Over the course of the last few years, cases challenging “natural” … Continue Reading
Statutes such as the Telephone Consumer Protection Act (“TCPA”), Fair Debt Collection Practices Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”) long have been favorites for class-action lawyers. Plaintiffs’ attorneys leverage significant statutory damages to generate large judgments or settlements for persons who often experience nothing more than the inconvenience of receiving an unwanted call … Continue Reading
There has been a trend of late toward “hand-crafted” goods. Advertisers, as they always do, have responded to this trend through creative marketing and, as they always do, class action lawyers have not been far behind. The alcohol industry has been a prime target; for example, Tito’s Handmade Vodka was sued recently by a plaintiff … Continue Reading
Last week, Senators Al Franken (D-Minn) and Hank Johnson (D-Ga) revived the Arbitration Fairness Act (“Act”), which would ban arbitration provisions in consumer contracts, as well as employment, antitrust, and civil rights cases, and only allow the parties to agree to arbitration after the dispute arises. The newfound interest in the Act demonstrates renewed opposition … Continue Reading
It seems as though there is a mobile app for everything these days. Hot new restaurant? Find it on the OpenTable app and make a reservation. Want to find love? Swipe the Tinder app to the left or right and meet your soul mate. Have an affinity for sci fi? No problem. Download the Star … Continue Reading
On February 4, 2015, in Glauser v. GroupMe, Inc., No. 4:11-cv-02584, the U.S. District Court for the Northern District of California struck a blow to class action plaintiffs asserting claims under the Telephone Consumer Protection Act (“TCPA”), interpreting the TCPA’s definition of “automatic telephone dialing system” (“ATDS”) narrowly to mean equipment that has the “present … Continue Reading
Even in 2014, fax marketing by associations, businesses, and other individuals shows no sign of slowing down. We have previously noted the significant number of class action lawsuits involving fax advertisements under the Junk Fax Prevention Act (“JFPA”). Now the Federal Communications Commission (“FCC”) is drawing more attention to this less common form of advertising. … Continue Reading
Is the “surf up” again in California for “Made in USA” class actions? A prior wave of “Made in USA” class action litigation in California crashed up against a number of legal difficulties, including how one calculated damages for buying a product “mislabeled” as “Made in USA.” However, the California Supreme Court in the Kwikset … Continue Reading
Another consumer class action over allegedly false and misleading “natural” claims survived a motion to dismiss in the Southern District of New York on May 15, 2014. At issue in Ault v. J.M. Smucker Co. is whether “All Natural” claims made on labels of Smucker’s Crisco branded vegetable oils are false and misleading. The plaintiffs … Continue Reading
On March 25, 2014, Judge Dean Pregerson, of the U.S. District Court, Central District of California, decertified a nationwide class of consumers in a class action brought against POM Wonderful LLC over allegedly false and misleading health claims related to its pomegranate juice. Judge Pregerson’s decertification order is significant because it makes class certification more difficult … Continue Reading
In an important development for product demonstration claims, a federal court recently dismissed with prejudice a lawsuit claiming that Apple’s advertising overstated the voice recognition capability for Siri. When Apple first launched its iPhone 4S the company touted the inclusion of a voice-activated personal assistant, called “Siri.” A number of commercials were aired in which … Continue Reading
As we noted yesterday, it’s not necessarily a given that an allegedly misleading advertising claim leads inexorably to a viable class action lawsuit (most likely venued in California.). Here’s one such recent example as to why. In the federal District Court in Los Angeles this past month, Chipotle Mexican Grill successfully defeated a class action … Continue Reading
So you’ve had a bad day — FDA has told you to stop marketing your product. The good news, things can only get better, right? Maybe not if a class action follows hot on the heels of FDA’s order. This, in brief, is the recent tale of woe of 23andMe. See Casey v. 23andMe, Inc., … Continue Reading
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 Protection … Continue Reading
Purveyors 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 … Continue Reading
Earlier this summer, a federal judge in the Southern District of California dismissed a potential class action suit against Redbox over the movie rental company’s use of confirmations for opt-out text messaging. Judge Dana Sabraw agreed with Redbox that a declaratory ruling from the FCC in November 2012 had held that confirmatory, noncommercial text messages … Continue Reading
Today only, read our blog for free! Well actually, it’s always free. But have we just opened ourselves up to a class action lawsuit in California? Perhaps. According to the Ninth Circuit, the term “Discount Sale” provides consumers with important information about a product’s worth and prestige. Falsely labeling a product’s “original price” as its … Continue Reading
Late last month, a federal judge in California ruled that a consumer had consented to receive text messages when he voluntarily gave his cellphone number to PayPal. The plaintiff had agreed to PayPal’s user agreement when he became a PayPal customer in 2002. At that time, the user agreement did not have any reference to … Continue Reading
