In every contract parties try to limit their liability. As a result, drafters put in very broad limitations of liability, which, up to a point, are fine and should be used. However, the problems arise when an entity tries to draft a limitation of liability that is so broad that it goes against public policy and state statutes. This is what recently happened in the case of Rossi v. Photoglou (Court of Appeals of California, Fourth District Division Three [9/29/2014]).

The case dealt with a cast member from “The Real Housewives of Orange County,” Gretchen Rossi, and her claim that her former friend Jay Photoglou was harassing and stalking her. At the trial level, Rossi was successful and recovered more than $500,000 in compensatory and punitive damages. The court dismissed the counterclaim by Photoglou against Rossi for libel, slander and invasion of privacy. It based the dismissal on the release signed by Photoglou which shielded not only the producers of the program, but also other cast members from liability. However, the Court of Appeals did not agree and reversed that finding because it held that all three of his claims involved intentional torts, and courts have often held that one cannot waive liability for intentional torts.


Continue Reading Too Much of a Good Thing Can Hurt You

survey

Companies doing business in California must now complete a comprehensive “survey” if selling particular products to consumers within the state.  However, this is not your typical consumer satisfaction survey, but rather a submission of detailed information for each product meeting the requirements discussed below.  The detailed submission must include include information on product formulas and

Made in the USAWith the holiday season in full swing, marketers are tirelessly seeking ways to convince you that their product is the perfect gift for everyone on your holiday list.  Although the bearded man of the hour at this time of the year is, of course, Santa Claus, many sellers try to ensure a competitive advantage by invoking the spirit of another hirsute man:  Uncle Sam.  But if you’re thinking about abandoning a red and green color scheme this year for red, white, and blue and plastering your products with “Made in the USA” or “American Made,” some recent California litigation reminds us that sellers should be careful when they feel the patriotic spirit overtaking the holiday spirit.

As we have noted several times previously on this blog, “Made in the USA” claims are tricky animals that can come back and sneak up on you like a whack from the stick-bearing Krampus (the nasty European sidekick to Santa Claus best known for walloping children with bundles of birch branches).  The Federal Trade Commission (“FTC”) has been active in this area, bringing a number of cases over the years to enforce its standard that to be able to make an unqualified  “Made in USA” or “Our products are American made” claim, without any limits or qualifications, a product must be “all or virtually all” made in the U.S., i.e., all significant parts that go into the product must be of U.S. origin and all processing must take place in the U.S.  The FTC guidance in this area has made it clear, however, that truthful qualified “Made in USA” claims, such as “Made in USA of foreign and domestic parts” or “Assembled in USA of parts from China” are permitted.


Continue Reading ‘Tis the Season–for “Made in the USA” Claims

Kids say the darndest things, and California wants to make sure that when it comes to their online postings those kids get a do-over.  On January 2015, California law SB 568 entitled “Privacy Rights for California Minors in the Digital World” will go into effect, allowing minors to remove certain posted online content as well as restricting certain types of online advertising directed to minors.

We have previously discussed California (see posts) and its continued stance as a leader in data privacy legislation, and this is no different.  California’s enactment of SB 568 focuses on expanding the online safeguards that the FTC put in place for minors with COPPA, as well as giving a nod to a topic of heavy debate in Europe—the right to be forgotten.


Continue Reading California Enacts Law Protecting Minors’ Digital Privacy Rights

Made in the USAIs 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 case ultimately resolved this issue largely in plaintiffs’ favor.

Now a class action complaint has been filed on June 9, 2014, against designer jean company Citizens of Humanity (“COH”) and Macy’s Inc. (“Macy’s”) which alleges that the jeans were falsely labeled as “Made in USA” when, in fact, many of the components were imported.  This follows on the heels of a settlement in a class action filed earlier this year against Lifetime Products, Inc. and The Sports Authority, Inc. for allegedly misusing the “Made in USA” label on basketball products.  Defendants agreed to a permanent injunction and to provide gift cards or a basketball to each class member ranging in value from $12.50 to $30 and to make annual charitable contributions of $325,000 over a five-year period.


Continue Reading Designer Duds? Class Action Alleges a “Made in USA” Fashion Faux Pas