Website accessibility lawsuits continue to be big business for plaintiffs’ attorneys. Every year since 2018, over 2,000 of such suits have been filed in federal courts, and many other suits have been threatened and settled outside of the public eye. Part of the problem is the lack of clear guidance in this area. Although settlements
James B. Saylor
MLB Ticket Holders Left With One Strike to Keep Ticket Merchants in COVID Refund Class Action
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.
What will “Phase II” of COVID-19 Class Actions Look Like?
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.
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As the Spread of Coronavirus Slows, a Contagion of Class Actions Has Only Begun
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…
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…