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Neil Popovic

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Neil Popović is a partner in the Business Trial Practice Group in the firm's San Francisco office and is Team Leader of the International Litigation and Arbitration team and the ESG and Sustainability Team.

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Plaintiff Lisa Bodenburg brought a putative class action against Defendant Apple Inc. after purchasing a 200 GB iCloud+ storage plan. She believed that by upgrading to the paid 200 GB plan, the 200 GB would add to the free 5 GB of storage provided to all Apple customers for a combined total of 205 GB of storage. However, after her purchase, she allegedly discovered that her total available storage was 200 GB, not the expected 205 GB. Bodenburg sued Apple, alleging breach of contract and violations of California’s Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”), seeking damages, restitution, and equitable relief on behalf of herself and a proposed nationwide class of iCloud+ customers. The district court dismissed Bodenburg’s action with prejudice, finding that none of her claims were plausible, and the Ninth Circuit affirmed.Continue Reading Navigating Ambiguity in Consumer Protection Law: Insights from Bodenburg v. Apple

Proposition 37, the California Right to Know Genetically Engineered Food Act (“Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO “processed food” may not on its label, store signage, advertising or promotional materials state or imply that the food is “natural” or words of similar import.

Ballot materials prepared by the Legislative Analyst’s Office (LAO) state that Prop 37 could be interpreted to mean “processed food” is subject to the prohibition against “natural” labels, even if it is not produced with genetic engineering. In our view, this is not the correct interpretation of Prop. 37.Continue Reading Proposition 37 Permits “Natural” Labeling for Non-GMO Processed Food

If a defendant in a putative class action settles with the class representative prior to class certification, does the defendant nonetheless have to respond to pre-settlement discovery requests to identify absent class members? According to the California Court of Appeal in Pirjada v. Superior Court, 2011 WL 6144930, Case No. B234813 (Cal. App. Dec. 12, 2011), the answer is no, although the appellate court left open the possibility that the trial court could require some form of notice to protect the interests of absent class members.
Continue Reading Court of Appeal Reminds Litigants That Settling With Named Plaintiff Does Not Necessarily End Putative Class Action

On April 21, 2010, the Ninth Circuit Court of Appeals confirmed that a putative class action removed to federal court under the Class Action Fairness Act (CAFA) does not lose federal jurisdiction just because the court denies class certification. The case, United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, et al. v. Shell Oil Company, et al., No. 10-55269, ___ F.3d ____ (9th Cir. Apr. 21, 2010), began as a putative class action in California state court. Plaintiffs alleged that defendants’ oil refineries violated California’s Unfair Competition Law, Business & Professions Code § 17200, and failed to provide meal periods, rest periods, timely and accurate wage statements and wages due at the time of termination. Defendants removed the case to federal court under CAFA, 28 U.S.C. § 1332(d)(2), which provides removal jurisdiction if any member of the putative class is diverse from any defendant, if the amount in controversy exceeds $5,000,000.
Continue Reading Ninth Circuit Makes CAFA Jurisdiction Stick