Category Archives: Class Action

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So What’s In the “Fairness in Class Action Litigation Act of 2017”?

On Feb. 9, the Chair of the House Judiciary Committee introduced a bill titled the “Fairness in Class Action Litigation Act of 2017” (FCALA) (H.R. 985).  Although the FCALA has a worthy goal and several provisions that build on existing, successful class action reforms, it may have too many “poison pills” to pass the Senate, … Continue Reading

Ad Law News and Views Newsletter

http://ecomms.kelleydrye.com/rv/ff002e6c28b5920e40180549f84cb2de5ebc7e88Did you know Kelley Drye’s Advertising Law practice produces a newsletter, Ad Law News and Views, every two weeks to help you stay current on ad law and privacy matters? Click here to access our Publication Sign Up and select Advertising and Marketing to subscribe. Find contents from the latest issue below: Click here to view with … Continue Reading

Announcing the Advertising and Privacy Law Webinar Series

Webinar SeriesPlease join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel. … Continue Reading

New Jersey’s TCCWNA: New Year, Same Uncertainty

NJIn 2016, many retailers found themselves on the wrong end of class actions brought under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). The suits allege that these retailers’ website terms of service either contained provisions that violated some “clearly established” New Jersey or federal law, or else stated that violative terms might not … Continue Reading

The Ninth Circuit’s Briseno Decision Is Not As Bad As It Looks for Consumer Class Action Defendants

The Ninth Circuit’s decision this week in Briseno v. ConAgra Foods, Inc., No. 15-55727, refused to engraft an “administrative feasibility” requirement to Federal Rule of Civil Procedure 23’s prerequisites for certifying a class action.  What this means, basically, is that in Ninth Circuit courts, a named plaintiff seeking class certification need not “demonstrate an administratively … Continue Reading

Protected: 2016 Advertising and Privacy Law Summit Attendee Follow up

There is no excerpt because this is a protected post.

Clarity Coming Soon About What New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) Actually Requires

NJRemember that wave of class actions under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. § 56:12-14 et seq., that hit New Jersey courts earlier this year, claiming that website terms of use contained unlawful provisions?  The motion to dismiss briefing is well underway, and online merchants should soon have some clarity about … Continue Reading

Who’s Still “Standing” Following Spokeo, Inc. v. Robins?

spokeo_logoFrom the first month of district court decisions issued since the United States Supreme Court decided Spokeo, Inc. v. Robins, No. 13-1339, 2016 WL 2842447, *3 (U.S. May 16, 2016), it appears the needle on Article III standing has moved slightly, but so far only slightly, in favor of the defense. Spokeo held that (i) in order to … Continue Reading

Spokeo Starting To Impact Class Certification Decisions — Stay Tuned

untitledWe are often asked what we see as the most promising avenues for class action defense arising from the Supreme Court’s Spokeo decision.  Our answer is that even if courts, post-Spokeo, give Congress wide latitude to define a compensable “injury,” courts should not certify classes that include people who did not suffer that injury.  As … Continue Reading

8th Circuit Upholds Data Breach Coverage for Bank Loss Following Hacker’s Fraudulent Transfer

Last week, the Eighth Circuit upheld a lower court’s ruling in State Bank of Bellingham v. BancInsure Inc., finding that a bank employee’s negligence in securing its computer network did not preclude coverage for a data breach resulting in a fraudulent funds transfer.  The decision affirms the lower court’s ruling granting summary judgment in favor of … Continue Reading

Mobile App Providers Encouraged to Obtain User Consent Before Sharing Video Viewing Information with Any Third Party After Gannett Mega-damages VPPA Claim Moves Forward

GannettIf you offer a mobile application that allows consumers to watch videos of any kind, and if you share that video-viewing information with an analytics firm, take careful note:  On April 29, in Yershov v. Gannett Satellite Information Network, Inc., No 15-1719, a panel of the First Circuit Court of Appeals that included retired Justice … Continue Reading

Class Actions Under New Jersey Warranty Law Threaten to Turn Terms-of-Service Boilerplate Into Big Potential Risks

Do your Terms of Service preclude litigants from claiming consequential damages or attorneys’ fees? If new class action lawsuits in New Jersey are right, merely including these terms, and potentially many other disclaimers, violates New Jersey state law, and subjects you to a penalty of $100 per sale. This interpretation of New Jersey’s 36 year-old … Continue Reading

Are You Covered? Fourth Circuit Finds CGL Insurance Coverage for Data Breach

As data breaches have continued to grow over the past few years, interest in cyber insurance coverage has grown along with it.  This week, the Fourth Circuit upheld a lower court’s ruling in Travelers Indemnity Co. of America v. Portal Healthcare Solutions, LLC, finding that a commercial general liability (CGL) insurance policy covered the cost … Continue Reading

Scalia’s Death Leaves High Court in Limbo on Three Key Consumer Class Actions

Supreme CourtWhile the sudden death of Supreme Court Justice Antonin Scalia creates an immediate vacancy on the bench, it also likely leaves the high court’s docket in limbo on a number of key consumer class actions awaiting the Court’s decision. Many predict that President Obama will not be able to replace Scalia before the 2016 Presidential … Continue Reading

Kohl’s Kicks Putative Class Action Suit Alleging Deceptive Sale Prices

On February 1, 2016, the U.S. District Court for the District of Massachusetts dismissed  a consumer class action alleging that Kohl’s Department Stores advertises false sale prices. The plaintiff in Mulder v. Kohl’s Department Stores, Inc., 15-cv-11377 (D. Mass.), asserted causes of action for fraud, breach of contract, unjust enrichment, and violations of the Massachusetts … Continue Reading

Plaintiffs Will Continue to Drive Website Accessibility as DOJ Delays Rulemaking

ADA KeyboardSince July 2010, the DOJ has sought to issue a proposed rulemaking addressing the applicability of the Americans with Disabilities Act (“ADA”) to private retailers offering goods and services to the public online.  The rulemaking has been delayed several times, and was most recently scheduled for a Spring 2016 publication. However, on November 19, 2015, … Continue Reading

Cookies, Promises, and California: Why the 3rd Circuit Revived Privacy Claims Against Google

Gogle CookiesLast week, the U.S. Court of Appeals for the Third Circuit revived several privacy claims against Google pertaining to the Internet company’s practice of side-stepping “cookie blockers” on Microsoft’s Internet Explorer and Apple’s Safari browsers. The Third Circuit found that Google intentionally circumvented “cookie blockers” on Internet browsers by exploiting loopholes found in the cookie … Continue Reading

Lands’ End Requests Dismissal of “Made in U.S.A.” Class Action After Reimbursing Plaintiff

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and lacks standing. As background, in October 2014, plaintiff Elaine Oxina filed the putative class action in … Continue Reading

Who’s Watching Dietary Supplement Advertising?  Everybody!

For several years now, dietary supplement advertising has been squarely on the radar of the FTC, state regulators, self-regulators, and last but never least, plaintiff’s lawyers. A recent FTC settlement with the makers of the dietary supplement, Procera, highlights that point. The FTC’s investigation appears to have begun with a nudge from the self-regulatory body, … Continue Reading

Does Cappuccitti Mark The End Of Federal Jurisdiction Over Consumer Class Actions In The Eleventh Circuit?

In a decision that could render the Class Action Fairness Act (“CAFA”) virtually meaningless, the Eleventh Circuit recently held sua sponte that CAFA does not allow for federal court jurisdiction over class actions unless the amount in controversy for at least one plaintiff (or class member) exceeds $75,000. Should this decision hold up, courts in … Continue Reading

California’s Song-Beverly Credit Card Act: The Past, Present, and Future

Last week the BNA Privacy & Security Law Report published an article discussing in detail California’s Song-Beverly Credit Card Act (the “Act”). The aim of the article is to provide those persons and businesses that regularly engage in credit card transactions in California, most notably retail merchants, with a meaningful primer on some critical current and … Continue Reading

Third Circuit Affirms Dismissal of Consumer Class Action Arising Out of NFL “Spygate” Scandal

The Third Circuit in Mayer v. Belichick recently affirmed dismissal of a consumer class action filed by disappointed football fans and season ticket-holders in response to the now infamous “spygate” scandal. As you may recall, this scandal arose when it was discovered that the New England Patriots were surreptitiously videotaping the defensive signals of the New … Continue Reading

Appellant Attempts to Re-litigate Issue of Whether Retailers that Collect Customer Zip Codes During Credit Card Transactions Violate California’s Song Beverly Credit Card Act

In a previous post, we noted that the California Supreme Court in Pineda v. Williams-Sonoma Stores, Inc., granted a petition to review the issue of whether a retailer violates California’s Song-Beverly Credit Card Act if, in connection with a credit card transaction, it records a customer’s zip code for the purpose of later using it … Continue Reading
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