Class Actions

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In a series of orders issued earlier this month, Judge Dale S. Fischer of the Central District of California dealt two strikes to putative class claims against ticket merchants Ticketmaster/LiveNation and StubHub that seek refunds for Major League Baseball games cancelled or “postponed” in the wake of the coronavirus pandemic.  See Ajzenman, et al. v.

Last week, a federal judge in the Southern District of New York dismissed a putative class action alleging that L’Oreal’s “EverSleek Keratin Caring” hair products deceived consumers into believing the products contained keratin. United States District Court Judge George B. Daniels rejected these allegations, finding that the challenged statements were clear both on their own…

Last month, a California court, for a second time, dismissed a class action complaint asserting that Ghirardelli’s advertising for its “Classic White” “Premium Baking Chips” created the false impression that the product contained real chocolate—this time with prejudice.  Plaintiffs in Cheslow v. Ghirardelli Chocolate Co., Case No. 19-cv-07467-PJH, alleged that they purchased Ghirardelli’s product…

As we previously reported, “Phase I” of class action filings relating to the COVID-19 pandemic has become a significant contagion of its own with more than 500 cases being filed since March challenging refund policies, school closures, event cancellations, and marketing and pricing practices.  As the economy gradually reopens, “Phase II”—how companies respond to these cases—is just beginning.  Not surprisingly, defendants are fighting hard and early to defeat these claims, with many opting to file motions to dismiss rather than answering the complaint and entering into lengthy and expensive discovery.

Early Action in Cases Against Public-Facing Businesses

Public-facing businesses—such those in the retail, travel and hospitality industries—have been the first to re-open and are currently navigating a patchwork of state guidelines on how to do so safely.  Compounding this burden, these same companies are facing a wave of lawsuits by customers and employees alleging negligence, breach of contract, and unfair business practices during the pandemic.

These industries are not new to class action litigation and many companies have included arbitration clauses and class arbitration waivers in their consumer contracts.  These defendants have, not surprisingly, moved to compel arbitration, and plaintiffs have responded with unique (but likely ineffective) allegations of unconscionability, fraud and duress to try to stay in court.  For example, in a case against Amazon, the plaintiffs alleged that the arbitration agreement was unconscionable because they were under duress during the pandemic and were forced to purchase products from Amazon.  Amazon’s response was based on the black-letter principle that unconscionability is measured at the time of contracting, and not at the time of the challenged conduct.

Other companies have focused on substance, arguing that they complied with their contractual obligations and that their customers have not suffered damages.  For example, in the case of recurring monthly payments for fitness club memberships, defendants have argued that their membership agreements do not mandate refunds for temporary closures, and therefore plaintiffs who filed suit within days or weeks of the initial closure did so too quickly.…
Continue Reading What will “Phase II” of COVID-19 Class Actions Look Like?

A federal judge in Florida recently dismissed a false advertising case against Tyson Fresh Meats and The Fresh Market challenging the use of the word “prime” to describe Tyson’s “Chairman’s Reserve Prime Pork.” Specifically, the plaintiffs alleged that the defendants “misrepresented that the USDA had graded their product as prime,” but notably did not allege…

On July 13, consumers filed a class action complaint in California federal court against Bigelow Tea, alleging the company falsely and deceptively represented that its tea products were made in the United States.  Plaintiffs claim that the tea manufacturer advertised that its tea products were “Manufactured in the USA 100% American Family Owned” and “America’s…

On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers.  The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent.  Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns.  Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision.  While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed.  Now the Supreme Court is poised (potentially) to resolve that dispute.…
Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA

A California federal judge has dismissed a putative class action against Kellogg for failing to back up the plaintiff’s theory that Kellogg’s Bear Naked Granola V’nilla Almond does not include vanilla flavoring derived exclusively from vanilla beans.

The plaintiff challenged the labeling of Bear Naked Granola V’nilla Almond as deceptive, claiming that the product’s labeling…

Companies continue to reel from business disruptions caused by the spread of coronavirus, and in many cases have struggled to navigate the swiftly changing landscape in which they are required to operate (or not operate).  At the end of the first full month of the crisis, as infections appear to plateau in epicenters like…