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. Violations are punishable by a maximum civil penalty of $100, actual damages, or both, and private actions can be brought by “aggrieved consumers” (more on that later).

TCCWNA has been around for years, but class action plaintiffs started using the statute to sue online retailers based solely upon their website terms and conditions without suffering any other injury. From what many retailers can tell, the plaintiffs did this by searching for and then challenging indemnification clauses, limitations of liability, and disclaimers of warranties in website terms of use and terms of sale, merely for the purpose of filing lawsuits.

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

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 and TCPA practitioners. However, nonprofit organizations and for-profit companies that help nonprofits reach consumers via telephone and text message should also take note of a less publicized recent TCPA opinion.

For years, Anthem Foundation, Inc. has supported the American Heart Association (AHA) and its “Hands-Only CPR” campaign to help people respond to a cardiac arrest event. Anthem Foundation is a 501(c)(3) charitable organization that serves as the philanthropic arm of for-profit insurance company Anthem, Inc. The plaintiff in Reese v. Anthem, Inc. admitted that she had provided her cellular phone number to AHA in order to receive “monthly CPR reminders, healthy messaging information, and [questions from AHA].” According to her amended complaint, though, the plaintiff and unnamed class members allegedly were “bombarded” with unwanted text messages that contained only “vacuous” pieces of medical information. Moreover, because the text messages stated “AHA/Anthem Foundation” and because Anthem Foundation’s name and logo appeared on AHA’s Hands-Only CPR webpages, the plaintiff believed that the ostensibly informational text messages actually served as pretexts for an advertising campaign benefiting Anthem, Inc. and Anthem Foundation.

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

wine bottlesIs 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

Opting OutWe all have received an errant text message on our phone or a marketing message intended for someone else. This is surely annoying but most of us will either ignore the message, send a reply message opting out, or, as an extreme measure, leave a scathing review online, complete with ALL CAPS. What some individuals do, however, is intentionally solicit additional texts by replying or following through on some of the action requested. By using multiple phones and spending all day subscribing to services, these individuals inevitably receive a lot of calls and texts with offers. Some of those messages might even be from sellers that the individual didn’t actually contact because the consumer’s information has become so widely disseminated, which is exactly what certain serial litigants seek to achieve.

The incentive to become a serial litigant is clear when you consider that for each message received without consent, an individual can claim statutory damages under the Telephone Consumer Protection Act (“TCPA”). Those damages could be $3,000 per text and/or call if the message is automated and sent to an individual on the National Do Not Call Registry. Yes, you read it correctly, it may be up to $3,000 per violating text. One such serial litigant has brought suit for alleged TCPA violations over one hundred times since 2014. He often files complaints pro se and will continue litigation until companies decide it’s cheaper to settle rather than pay additional legal fees. He has openly bragged about these methods, writing blog posts entitled “TCPA enforcement for fun and profit up to 3k per call” and aspiring to author a book entitled Tales of a Debt Collection Terrorist: How I Beat the Credit Industry at Its Own Game.

Continue Reading Relief from TCPA Trolls

targeted moneyAs 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, No. 1:15-cv-08504 (N.D. Ill.), a putative nationwide class action, the U.S. District Court for the Northern District of Illinois held both that (1) the TCPA’s nonprofit exemption from do-not-call liability extends to a professional fundraiser acting on behalf of the nonprofit under federal common law agency principles – even if the majority of the money raised for the nonprofit is paid to the fundraiser; and (2) calls seeking charitable donations are not “telephone solicitations” actionable under the TCPA, even if the donations will be – in part – used to procure goods for charitable recipients.

In Spiegel, the plaintiff claimed that several fundraising calls were placed to his residential telephone number in 2013 and 2014, while his number was on the NDNC list. He sued the principals of the charity, The Breast Cancer Society (Society), as well as the Society’s paid fundraiser, Associated Community Services, Inc. (ACS), alleging that such fundraising calls to him and other United States residents violated the TCPA.

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

orange splashJoining 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 were literally true.

The plaintiff in the Mott’s case asserted allegations similar to claims that had successfully withstood motions to dismiss in the past. He alleged that the fruit snacks’ use of phrases like “made with real fruit and vegetable juice” misled consumers to believe the products contained more fruits and vegetables than they did, and representations like “100% of your daily value of Vitamin C” falsely conveyed to consumers that the products were healthful and nutritious. Based on these allegations, the plaintiff brought consumer protection claims and related common law claims on behalf of himself and all California consumers who purchased Mott’s fruit snacks.

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

James Bond Goes to CourtJames 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 the franchise’s movies. One particular adversary however, Mary Johnson, a self-described Bond fan, may be James Bond’s biggest rival to date.

In April, Johnson filed a class action suit in Washington State against several entertainment companies that own the rights to the James Bond franchise, including MGM Holdings, Inc. and 20th Century Fox Home Entertainment. Johnson claims that she and other members of the class purchased two James Bond DVD boxed sets that promise: “[ALL] the Bond films gathered together for the first time in this one-of-a-kind boxed set – every gorgeous girl, nefarious villain and charismatic star from Sean Connery, the legendary actor who started it all, to Daniel Craig.” (Emphasis Added). The problem is that the sets don’t include 1967s Casino Royale or 1983s Never Say Never Again films. Some Bond connoisseurs would argue that the two excluded films are not part of the franchise because Casino Royale was a spoof produced by a different movie studio and Never Say Never Again was the result of a complicated rights dispute between MGM and the movie’s writer, Kevin McClory. Nevertheless Johnson claims, the fact that the box sets don’t include literally “all” of the franchise’s movies, the use of the word is deceptive and therefore constitutes a violation of Washington’s Consumer Protection Act. Johnson seeks class certification, an award of damages, including punitive damages, and court costs and attorneys’ fees.

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

texting lawsBreaking up can be messy, whether you are the one doing the breaking up or the one being broken up with. And, we all know about the different ways to break up with someone. “It’s not you, it’s me . . .”, “I need space . . .”, “I’m washing my hair that year . . .” However, when it comes to the proper way of breaking up with a telemarketer over text message, a New Jersey federal court is primed to shed some light on the issue.

On January 12, 2017 plaintiff Amy Viggiano filed a class action lawsuit (Viggiano v. Kohl’s Dep’t Stores, Inc., No. 3:17-cv-00243 (D.N.J.), alleging that Kohl’s violated the Telephone Consumer Protection Act (TCPA) by sending unwanted text messages and requiring consumers to respond “STOP” to the texts to cancel them. Specifically, the complaint alleges that Kohl’s “sent millions of text messages to consumers after purporting to designate the exclusive means by which consumers may withdraw consent to receive such messages.” There generally can be no violation of the TCPA if the consumer has consented to receive marketing calls or text messages – at least absent a subsequent request to the sender to stop sending them. The Federal Communications Commission (FCC) has ruled that consumers have the right to revoke such consent by using any reasonable method, including orally or in writing. The issue in this case turns on whether, after the plaintiff unequivocally consented to receive marketing text messages from Kohl’s, she reasonably broke up with Kohl’s.

Continue Reading “It’s Over, Stop Texting Me”: Class Action Suit Against Kohl’s Alleges TCPA Violations

sunshineThe 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 contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”

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

package deliveryThe plaintiffs’ bar is at it again, this time with a new target—the shipping and handling fees that retailers charge consumers in the course of delivering a product.

We may think in the day of Amazon Prime that when we shop on the web the product should arrive at our door for free. But there are obviously costs associated with mailing the items we buy online, costs that don’t exist when we pick up in store. E-Sellers have always understood the need to make these shipping and handling costs—as well as other terms and conditions of sale—clear and conspicuous to the customer before he buys the product. Similarly, e-Sellers understand when they advertise a product as “free” or as a “free trial” that charging additional fees such as shipping and handling, unless very clearly communicated, can pique the interest of state enforcers. The current class action attack on retailers focuses not on how clearly such charges are communicated but instead on the amounts charged and whether it is somehow unfair to charge more than the actual out-of-pocket shipping and handling cost, even if the charges are adequately disclosed.

Continue Reading Retailers Confront a New Threat: Shipping and Handling Class Actions