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Fred Puglisi

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Fred Puglisi is a partner in the Century City office and Practice Group Leader of the Business Trial Practice Group.

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

As one year ends, another begins.  So too it seems with California’s embrace of multi-million dollar privacy class actions.  The purported illegal recording of cellular or cordless phone calls under Section 632.7 of the California Penal Code has long been a favorite of the class action bar due to the availability of staggering statutory damages.  These actions are all but dead, however, following the Fourth Appellate District’s decision in Smith v. LoanMe, Inc., 2019 DJDAR 11930, holding that some form of eavesdropping is required to state a cause of action under Section 632.7.  No longer is the simple recording of a cellular or cordless telephone call between the actual participants to the call actionable.  While many have long argued that the actual language of the statute as well as its legislative history – including the legislative history of the California Invasion of Privacy Act (Pen. Code §§ 630, et seq.) in general – require some form of spying to state a claim under Section 632.7, the court of appeal in LoanMe has made it official.  Barring review or inconsistent rulings by other appellate districts, privacy class actions seeking statutory damages under Penal Code section 632.7 are the past.  
Continue Reading The Death of One California Privacy Class Action, and the Birth of Another

When it comes to compelling arbitration in California, courts often put the moving party to the test. The most recent example is the Fourth Appellate District’s decision in Fabian v. Renovate America. Affirming a lower court’s decision, the Court of Appeal held that the defendant failed to meet its burden of proof that an electronically signed contract – one containing a 15-digit alphanumeric verification from DocuSign and the words “Identify Verification Code: ID Verification Complete” – was in fact signed by the plaintiff. Stating that the “burden of authenticating an electronic signature is not great,” the Court of Appeal went on to hold that the defendant had not met its burden as it had failed to submit evidence explaining the DocuSign verification process. The court of appeal acknowledged the acceptance of a DocuSign verified signature in Newton v. Am. Debt Servs (N.D. Cal. 2012) 854 F.Supp.2d 712, but distinguished that case finding that Renovate had not submitted “evidence about the process used to verify Fabian’s electronic signature via DocuSign, including who sent Fabian the Contract, how the Contract was sent to her, how Fabian’s electronic signature was placed on the Contract, who received the signed the [sic] Contract, how the signed Contract was returned to Renovate, and how Fabian’s identification was verified as the person who actually signed the Contract.”
Continue Reading Is Hate Too Strong A Word (When It Comes To Compelling Arbitration In California)?

In Pfizer, Inc. v. Superior Court, ___ Cal. App. 4th __ (March 2, 2010), the Court of Appeal, Second District, applied In re Tobacco II Cases, 46 Cal. 4th 298 (2009) (“Tobacco II“) to overturn an order granting class certification. The Pfizer opinion resuscitates traditional class certification opposition strategies based on the unfair competition law (the “UCL”) even in the wake of Tobacco II‘s holding.
Continue Reading Pfizer: The Court of Appeal Rinses Away the Tobacco II Aftertaste