One of the hottest areas in class actions is litigation under the Telephone Consumer Protection Act (TCPA).  And one of the most significant issues in TCPA litigation is the existence and scope of vicarious liability.  The key question is to what extent are businesses liable for the actions of third-party marketers who, without the consent of the recipient, send text messages or place calls using autodialers or prerecorded voices or transmit faxes?

Some plaintiffs had argued that businesses are strictly liable for TCPA violations committed in their name by third-party marketers.  Last year, the FCC rejected that approach in a
Continue Reading Eleventh Circuit adopts broad view of businesses’ potential liability under TCPA for faxes sent by third parties

We have written previously about the FTC’s action arising out of the data breach suffered by the Wyndham hotel group, and the company’s petition for permission to pursue an interlocutory appeal regarding the FTC’s use of its “unfairness” jurisdiction to police data security standards. On Tuesday, the Third Circuit granted Wyndham’s petition. Even the FTC had agreed that the “the legal issues presented are ‘controlling question[s] of law,’ and they are undoubtedly important.”  Yesterday’s ruling promises that these questions soon will be considered by the Third Circuit.
Continue Reading Third Circuit to Consider FTC’s Authority Over Data Security Standards in FTC v. Wyndham

Later this week, DRI—an important professional organization that serves as a leading voice for the defense bar and in-house counsel—will once again hold its annual seminar on class actions in Washington, D.C.  I will be one of the speakers, and will be discussing recent developments affecting arbitration and class actions.  I plan to preview some of the issues that I’ll be discussing on the blog in the weeks to come.   More information about the seminar is available here.  I look forward to seeing readers of our blog and other friends and colleagues.
Continue Reading Upcoming Class Action Seminar in Washington, DC

We have written previously about FTC v. Wyndham Worldwide Corp., currently pending in federal district court in New Jersey, and its potential significance for data security class actions. A recent opinion in that case has brought it back into the news—and made clear that the stakes are as high as ever.

Over the FTC’s opposition, the district court certified an interlocutory appeal to the Third Circuit regarding its earlier denial of Wyndham’s motion to dismiss. Specifically, the district court certified two questions of law for appellate review: (1) whether the FTC has the authority under Section 5 of the
Continue Reading Wyndham Seeks Immediate Appeal Over Whether FTC Has Authority To Regulate Data Security

After the oral argument in POM Wonderful LLC v. Coca-Cola Co. (pdf), No. 12-761, the Supreme Court appeared all but certain to allow competitors to sue for false advertising under the Lanham Act over labels of FDA-regulated food products.  Food manufactures have been waiting to see just how broad the ruling would be and whether it would affect the onslaught of consumer class actions challenging food and beverage labels.  The wait is over, and the POM v. Coke decision, while effecting a dramatic change in competitor actions, should have little impact on consumer class actions.

As described by the Supreme
Continue Reading POM v. Coke Does Not Alter The Landscape for Food False Advertising Class Actions

The plaintiffs’ bar continues to file consumer class actions challenging food and beverage labels en masse, especially in the Northern District of California—also known as the “Food Court.” One particular line of cases—at least 52 class actions, at last count—targets companies selling products containing evaporated cane juice. The battle over evaporated cane juice has become the latest front in the war over whether federal courts should apply the primary-jurisdiction doctrine and dismiss or stay food class actions while awaiting guidance from the federal Food and Drug Administration.

In these cases, plaintiffs allege that the term “evaporated cane
Continue Reading Primary Jurisdiction is Gaining Some Weight in the Food Court

Already, 2014 has been an eventful year in the world of data breaches and cybersecurity. In addition to a flurry of litigation over high-profile breaches at the start of the year, the National Institute for Standards and Technology released its long-anticipated Cybersecurity Framework. The latest development is the recent decision in the closely-watched Wyndham case, in which a federal district court has just held that the Federal Trade Commission may use its “unfairness” authority under Section 5(a) of the FTC Act to enforce data-security standards. As a result, companies can expect the FTC to continue—and perhaps even expand—its
Continue Reading Federal Court Upholds FTC’s Authority To Bring Enforcement Actions Over Data-Security Standards; Will Class Actions Follow?

After a year of public-private collaboration and considerable anticipation, the National Institute for Standards and Technology’s (NIST) cybersecurity framework for critical infrastructure has arrived. The interest in the framework has only grown after several high profile data breaches in late 2013 have cast an unrelenting spotlight on cybersecurity issues. The framework presents businesses with important questions about whether and how they should use it, and—as cybersecurity-related class actions multiply—how the plaintiffs’ bar intends to invoke the framework.

After attempts at more comprehensive legislation faltered, President Obama issued an executive order (EO 13636) requiring development of the framework. By
Continue Reading What The NIST Cybersecurity Framework Might Mean for Class Actions

It is no secret that many private class actions are filed as follow-on lawsuits to news reports, government investigations, regulatory developments, and identical earlier-filed class actions. But a recent gambit by the plaintiffs’ bar is among the more creative efforts we have seen. Earlier this week, a well-known plaintiffs’ firm filed Dang v. Samsung Electronics Co., in the Northern District of California. The complaint alleges that Apple’s victory over Samsung (at least in part) in certain highly publicized patent infringement actions establishes that Samsung has violated California’s consumer protection law as well as warranty statutes in 49 states and
Continue Reading Will A New Wave Of Class Actions Spring From Patent Infringement Litigation?

Since 2006, companies based outside California have been alert to the potential burdens of class actions under California’s Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 630 et seq. The laws of most states, as well as federal law, allow telephone calls to be recorded with the consent of one party to the call. Accordingly, companies in those states usually can record customer service calls for quality-assurance purposes without the need to procure the customer’s consent because the call-center employee, as a party to the call, can consent to the recording. California, however, is one of 12 states that
Continue Reading What’s Going On With Class Actions Alleging That Businesses That Record Customer-Service Calls Are Violating California’s Invasion of Privacy Act?