In recent years, website operators have increasingly used chatbots to improve customer engagement and provide customer support. In the past several months, however, the plaintiffs’ bar has expressed concerns about the privacy implications of these chatbots, and has brought a wave of litigation challenging their use under the California Invasion of Privacy Act (CIPA). Continue Reading The Tides are Turning on a Wave of California Privacy Litigation
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 More on McGill: Ninth Circuit Affirms Order Enforcing Arbitration of Public Injunctive Relief Claims
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.
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Questions To Ask When Changing Your Arbitration Clause
In a prior post (here), we highlighted some questions that companies may want to ask when evaluating whether their arbitration clauses are enforceable. If changes need to be made to those clauses, then companies should consider how to implement those changes so as to ensure those are enforceable too. The following is what you should be thinking about and asking.
Continue Reading Questions To Ask When Changing Your Arbitration Clause
An Arbitration Clause Health Check
Arbitration clauses with class action waivers remain one of the most effective tools that consumer-facing companies can employ to fend off consumer class action litigation. Yet many companies stumble both in getting their customers to agree to the arbitration clause and in drafting a clause that captures all claims that they might face. As we continue to work, shop, and engage with the world from home, companies should perform a quick “health-check” of their arbitration clause, asking themselves at least the following questions:
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One A Day Will Not Keep Plaintiffs Away
In a recent decision, the California Court of Appeal reaffirmed and clarified how the “reasonable consumer” standard must be applied at the pleadings stage to mislabeling claims. In simplest terms, if the packaging makes a definitive statement on the front that suggests one thing, but fine print on the back contradicts that statement, the defendant cannot rely on the fine print to escape a mislabeling claim. In reaching that conclusion, however, the Court of Appeal appears to have laid a roadmap for how to defeat class certification.
Continue Reading One A Day Will Not Keep Plaintiffs Away
Outlet And Factory Class Actions Take A Hit: California Court of Appeal Confirms Companies Can Sell Made-For-Outlet Product At Outlet Or Factory Stores
Over the past two years, class actions have been filed against nearly every major retailer challenging various sales and pricing practices. Many of these have focused on outlet stores (sometimes called “factory” stores). These cases have generally claimed that selling product made only for the outlet or factory store, where that product was never sold in mainline channels (e.g., in regular stores, boutiques, department stores or online), is deceptive, particularly product if the store suggests that the made-for-outlet was previously sold in mainline channels for a higher price. In many states, the trend has been to dismiss the case on the pleadings, holding that plaintiffs, who purchased a product for the price advertised, were not injured, especially if they cannot allege that the product was worth less than what they paid. In California, with the expansive reach of the Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA), courts have generally permitted these claims to proceed beyond the pleadings.
Continue Reading Outlet And Factory Class Actions Take A Hit: California Court of Appeal Confirms Companies Can Sell Made-For-Outlet Product At Outlet Or Factory Stores
Ninth Circuit Confirms that a Cy Pres Only Settlement Can Work In Privacy Class Action
In the past few years, class action lawsuits challenging privacy practices, particularly internet privacy practices, have expanded. But, these lawsuits often challenge practices that do not cause any actual damage, which can make it difficult to reach a settlement, particularly of a Rule 23(b)(3) class. So, how can parties wanting to settle proceed?
Continue Reading Ninth Circuit Confirms that a Cy Pres Only Settlement Can Work In Privacy Class Action
Class Action Plaintiffs In The Ninth Circuit Can No Longer Obtain Immediate Appellate Review Of Orders Denying Class Certification
The U.S. Supreme Court has closed a loophole that class action plaintiffs in the Ninth Circuit had been exploiting to obtain immediate appellate review of a district court’s denial of class certification. The decision – Microsoft Corp. v. Baker, 582 U.S. __ (2017) – will end a practice in the Ninth Circuit that was seen as unfair to defendants, who could not exploit the same loophole to obtain immediate review of a district court’s grant of class certification.
Continue Reading Class Action Plaintiffs In The Ninth Circuit Can No Longer Obtain Immediate Appellate Review Of Orders Denying Class Certification
Enough is Enough: Court Dismisses TCPA Class Action Against A Health Plan That Placed Reminder Calls To Its Members That They Should Consider Their Options During The Annual Open Enrollment Period
Plaintiffs across the country have continued to file class actions against companies of all stripe for violation of the Telephone Consumer Protection Act (“TCPA”), often for communications far afield from the classic “telemarketing” calls that the TCPA was meant to prevent. Recently, a spate of class actions have been filed against health care providers and health plans, alleging that routine calls to patients and health plan members constitute “telemarketing” under the TCPA if they mention a product or service, whether that be medications, appointments, or information about health plans.
Continue Reading Enough is Enough: Court Dismisses TCPA Class Action Against A Health Plan That Placed Reminder Calls To Its Members That They Should Consider Their Options During The Annual Open Enrollment Period
Attacking Class Action Allegations On The Pleadings Can Be A Successful Strategy
Not all class action allegations are created equal. Certain types of claims are more likely to be amenable to class treatment – generally those involving uniform policies that result in uniform injuries; other claims seem destined for individualized treatment – generally those involving a variety of unpredictable factors that determine liability as to each putative class member. And some class claims, due to their very nature, are so individualized that the class allegations should be dismissed on the pleadings. Indeed, the California court of appeal recently reminded us that some class allegations deserve dismissal on demurrer. The case is Schermer v. Tatum, D067807 (Cal. App. 4th Dis. Mar. 18, 2016).
Continue Reading Attacking Class Action Allegations On The Pleadings Can Be A Successful Strategy