In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil Code Section 1747.08 of California’s Song Beverly Credit Card Act.  The trial court had denied certification because the plaintiff did not show the ability to identify, locate, and notify class members.  The court of appeal rejected that standard, and found that the class was, in fact, ascertainable because (1) the class definition contained a set of “common characteristics” that would allow class members to self-identify themselves, and (2) because the plaintiff had suggested an objective method for identifying class members.  This decision clarifies the standard for ascertainability in California state court class actions.
Continue Reading California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions

In Concepcion v. Amscan Holdings, Inc. et al., — Cal.Rptr.3d —-, 2014 WL 595822 (Cal.App. 2 Dist. Feb. 18, 2014) the California Court of Appeal rejected class counsel’s fee award where class counsel’s billing records were provided to the trial court for review, but were not provided to the defendant’s counsel.
Continue Reading Everyone Gets To See The Evidence: The California Court Of Appeal Rejects an Attorneys’ Fee Award Based On The Trial Court’s In Camera Review Of Class Counsel’s Billing Records

A New Jersey state trial court has initially weighed in on the issue of whether a retailer violates state law by requesting a customer’s zip code at the point of purchase.  In a case fashioned after the California Supreme Court’s decision in Pineda v. Williams-Sonoma, 51 Cal.4th 524 (Feb. 10, 2011), New Jersey Superior Court Judge Stephan Hansbury has denied a motion to dismiss brought by Harmon Stores, Inc. (Bed, Bath & Beyond), finding that the plaintiff Robert Imbert adequately pled a claim for violation of New Jersey’s Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:11-17 (“TCCWNA”).   The Court’s ruling allows plaintiff to proceed beyond this initial stage, but no liability has been found.
Continue Reading UnZIPped in New Jersey?

The California Court of Appeal has recently published two new decisions involving data privacy class actions. Both involve claims under the Song-Beverly Credit Card Act. The most recent, Jessica Pineda v. Williams-Sonoma Stores, Inc., 2009 DJDAR 15191, affirmed the judgment against the plaintiff on the grounds that it is not a violation of Song-Beverly to request a zip code during a credit card transaction, even if the zip code is matched with a name to acquire that individual’s address, and that the same conduct is not a serious invasion of privacy where the home address information is publicly available and plaintiff has taken no special steps to protect it. Approximately one month earlier, the same panel held in Susan Powers v. Pottery Barn Inc., (2009) 177 Cal.App.4th 1039, that the federal CAN-SPAM Act does not preempt a Song-Beverly claim based on a request for an email address, and sent the case back to the trial court for further proceedings.
Continue Reading In Two Recent Class Actions, Retailers Get More Clarity On Key Privacy Issues In Song-Beverly Cases – Zip Code O.K., Reverse Lookup O.K., E-mail Address Not Preempted