The U.S. Supreme Court Limits TCPA Liability By Narrowly Interpreting ATDS

On April 1, 2021, the U.S. Supreme Court in the class action case of Facebook, Inc. v. Duguid, No. 19-511, resolved a circuit court split on the meaning of automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) by unanimously reversing the Ninth Circuit’s broad definition and narrowly interpreting ATDS.  Bringing much needed clarity the Federal Communications Commission has not been able to provide to date, the Supreme Court held that to qualify as ATDS “a device must have the capacity to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.”  This ruling significantly narrows liability, including class action liability, under the TCPA. Continue Reading

Strengthening the TCPA’s Sovereign Immunity Shield—Fourth Circuit Rules Federal Employees Are Not Liable for Government-Mandated Robocalls

In a resounding victory for public-private partnerships, the Fourth Circuit’s decision in Cunningham v. Lester, et al., No. 20-1086, — F.3d —- (4th Cir. Mar. 4, 2021) has affirmed federal employees’ immunity from the Telephone Consumer Protection Act (“TCPA”) when acting in furtherance of a government mandate.  The TCPA imposes strict statutory penalties for unsolicited robocalls ranging from $500 to $1,500 per violation.  But the Supreme Court has held the TCPA does not contain a waiver of sovereign immunity. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016).  The question presented in Cunningham was whether a plaintiff can avoid the TCPA’s sovereign-immunity shield by suing federal employees for damages in their individual capacities.  The Fourth Circuit ruled that a plaintiff can do no such thing. Continue Reading

More on McGill: Ninth Circuit Affirms Order Enforcing Arbitration of Public Injunctive Relief Claims

Arbitration clauses with class action waivers remain one of the most effective lines of defense against consumer class actions.  They are also one of the most challenged.  As we have discussed in prior posts, including here, here, and here, consumer arbitration clauses have come under fire in California if they prohibit plaintiffs from obtaining “public injunctive relief” in any forum.  This is the so-called McGill rule, which comes from the California Supreme Court’s decision in McGill v. CitiBank, N.A., 2 Cal.5th 945 (2017). Continue Reading

The Scoop on All that Vanilla Flavor Litigation

This article was originally published on Food Navigator on January 13, 2021.

If your company sells any vanilla-flavored food or beverage product, then you are probably aware of the innumerable class action cases that have been filed over the last 18 months attacking these products – 67 cases by our count.  Here, we trace the history of this litigation and the outcomes achieved to date. Continue Reading

Food & Beverage Class Actions: What You Need to Know for 2021

This article was originally posted in Food Manufacturing on January 6, 2021.

Despite the COVID-19 pandemic, the number of putative class actions targeting the food and beverage industry increased in 2020 and show no signs of slowing down in 2021. The number of class actions filed against beverage companies in New York increased while the number of cases filed in California decreased. While the Northern District of California, which had become known as the “food court” remained a popular jurisdiction for these suits, filings in New York outpaced those in California. The factual basis of the claims also continues to evolve. Early cases challenged the description of food and beverages as “all natural” when the products contained additives allegedly rendering the “all natural” representation false and misleading. Continue Reading

Supreme Court to Address Class Action Standing in Ramirez Case: To Recover, Must Absent Class Members Establish Actual Injury?

The U.S. Supreme Court granted certiorari on December 16, 2020 in TransUnion, LLC v. Ramirez on the question of “[w]hether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.” Ramirez will give the high court the opportunity to clarify how Article III standing requirements apply to class members in class actions. Continue Reading

It’s Not Pop Secret, Ninth Circuit Affirms that Plaintiff Didn’t Have a Leg to Stand On

The Ninth Circuit’s recent decision in McGee v. S-L Snacks Nat’l,., confirms that nutrition fact panel and ingredient disclosures provide information that can be used to support a motion to dismiss and remain important tools for defeating consumer class actions. Continue Reading

No Reason to Blush

*This post originally appeared as an article in the August 2020 edition of Happi Magazine.

Beauty companies face an uptick in alleged false-labeling class actions. Whether the actions are justified or vexatious, one thing is certain: they are expensive to defend. By keeping the following labeling-related litigation trends in mind when considering and reviewing product labels and marketing, beauty companies can, hopefully, avoid becoming a litigation target. Continue Reading

The Sixth Circuit Broadly Defines ATDS, Widening The Split Among Circuits Before The Supreme Court Rules Next Year

On July 29, 2020, the Sixth Circuit joined the Second and the Ninth Circuits in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043 (6th Cir. July 29, 2020), the Sixth Circuit held that “devices that dial from a stored list of numbers”—i.e. “predictive dialers”—qualify as an ATDS under the TCPA.  The Third, Seventh, and Eleventh Circuits have applied a more stringent definition, requiring that an ATDS have the capacity to generate random or sequential telephone numbers and to dial them.  Now the Circuit Courts are split on this issue 3-3.  The U.S. Supreme Court recently accepted review of the definition of ATDS and will presumably resolve this split in its next terms, likely by the spring of 2021. Continue Reading

Avoiding Formation Challenges To Your Arbitration Clause With Consumers

In prior posts (here and here), we raised questions that companies may want to ask when evaluating their arbitration clauses and making changes to them.  In this third installment, we look at what companies should be doing to ensure that they can present proof of their arbitration agreements if ever required to do so in court.  Your company may have a perfect arbitration clause, but if a customer claims never to have signed the arbitration agreement or not to have seen the website providing notice of the terms and conditions, you will have to present evidence that the customer is wrong. Continue Reading

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