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

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

Until recently, many large companies have resigned themselves to the assertion of personal jurisdiction by courts in any state in which they do business—so long as the plaintiff has named the right corporate entity as defendant. That’s because the conventional wisdom has been that large companies are subject to personal jurisdiction nationwide because they do a lot of business in every state.

The Supreme Court recently has provided reason to revisit that assumption, however. Two recent decisions by the Court place significantly tighter limitations on the assertion of personal jurisdiction, equipping businesses with new defenses against forum-shopping by plaintiffs’ class-action lawyers.

Continue Reading Are You Objecting to Personal Jurisdiction In Magnet Jurisdictions Yet?

In what circumstances should you be permitted to invest your retirement savings in your own employer’s stock? We have blogged before about an ERISA class action pending at the Supreme Court regarding when plan fiduciaries must prevent participants from investing in employer stock. After the Solicitor General filed an amicus brief (pdf) asking the Court to broaden its inquiry, the case was poised to challenge a bedrock of ERISA stock-drop actions—a presumption that fiduciaries act prudently when investing in employer stock.

On Friday, the Supreme Court granted certiorari in the case, Fifth Third Bancorp v. Dudenhoeffer, No. 12-751, but
Continue Reading Supreme Court Picks Up ERISA Stock-Drop Case: What’s Next?

In practice, the most significant change in modern litigation has been the dramatic increase in electronic discovery costs. As the amount of electronically stored information has skyrocketed over the past two decades, the burden on parties (chiefly businesses) to retain, review, and produce that information in litigation has exponentially increased as well.

Recognizing that reality, the federal Judicial Conference’s Advisory Committee on Civil Rules has recently issued a preliminary draft of proposed amendments to the Federal Rules (pdf) that, if adopted, would take some modest steps towards ensuring greater balance in the discovery process.

A number of interested parties will
Continue Reading Senate Judiciary Subcommittee Holds Hearing On Proposed Changes To Federal Rules Governing Discovery


Most people are familiar with Fig Newtons, an iconic cookie that has been around for over a century (at least according to its Wikipedia entry).  There are many other popular versions of Newtons—albeit of more recent vintage—such as raspberry and strawberry Newtons.  These fruit Newtons drew the ire of plaintiff Monique Manchouck, who filed a false advertising class action in the Northern District of California—which has become known as the nation’s “Food Court” —against the makers of the cookies.

What was her beef?  According to her complaint, the product packaging states that Newtons are “made with real fruit.”  
Continue Reading “Food Court” Rejects Class Action Alleging That Fruit Newtons Labels Are Misleading

We’ve previously written about the petition for interlocutory appeal in Chen v. Allstate Insurance Co., a TCPA class action that involves an important issue for class action practitioners:  can a named plaintiff refuse an offer of judgment for full relief and continue pursuing a class action?  The Ninth Circuit recently granted (pdf) the petition and can be expected to issue a briefing schedule soon.  We’ll continue monitoring this important case and report any developments
Continue Reading Update: Ninth Circuit to Decide Whether an Offer of Judgment to a Named Plaintiff Will Moot a Class Action

From a practitioner’s standpoint, one of my five least-favorite recent developments in federal class-action practice is the explosion in the number of premature motions for class certification that would-be class representatives file.

I understand the motivation behind these motions—often filed along with the initial complaint. Of course, they are not seriously intended to induce a ruling on class certification; to the contrary, they expressly request that the issue be tabled until the completion of discovery. The real reason that plaintiffs’ counsel file these motions is that they want to preclude the defendant from mooting the putative class action by making
Continue Reading Judges Irked At Placeholder Class-Certification Motions Too

The spate of class actions under the Telephone Consumer Protection Act (TCPA) isn’t ending anytime soon. And the risks to businesses have just increased in the Third Circuit, thanks to that court’s recent ruling that the TCPA permits consumers to retract consent to receiving calls on their cell phones placed by automatic telephone dialing systems.

The TCPA prohibits making any call to a cell phone “using any automatic telephone dialing system or an artificial or prerecorded voice” unless (among various exceptions) the call is made with the “prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). Courts have upheld various ways of demonstrating “express consent,” including:

  • verbally, such as when the consumer orally provides a cell phone number as a contact number (Greene v. DirecTV, Inc., 2010 WL 4628734 (N.D. Ill. Nov. 8, 2010)); 
  • in writing, such as when a contract authorizes cell phone calls (Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y. Sept. 15, 2011)); and 
  • through a third party, such as when a spouse authorizes cell phone calls (Gutierrez v. Barclays Bank Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011)).

But once consumers have consented to receiving these calls, can they rescind their consent? The TCPA’s text is silent on the subject. And although the FCC’s 1992 TCPA Order indicates that consumers who provide their cell phone number can give “instructions” that they don’t agree to receive autodialer calls, the order doesn’t address whether the consumer can give those instructions long after initially providing the cell phone contact number.

By contrast, other privacy statutes—such as the CAN-SPAM Act, the Junk Fax Protection Act, and the Fair Debt Collection Practices Act—have express provisions allowing consumers to opt out of receiving communications at any time. A number of district courts have concluded that the lack of a corresponding express provision in the TCPA means that consumers don’t have the statutory right to retract consent once it has been given. See, e.g., Osorio v. State Farm Bank, F.S.B., 2012 WL 1671780 (S.D. Fla. May 10, 2012); Cunningham v. Credit Mgmt., L.P. (pdf), 2010 WL 3791104 (N.D. Tex. Aug. 30, 2010); Starkey v. Firstsource Advantage, L.L.C. (pdf), 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010).

But in Gager v. Dell Financial Services, Inc. (pdf), the Third Circuit sided with courts that have taken the opposite view. See Adamcik v. Credit Control Servs., Inc., 832 F. Supp. 2d 744 (W.D. Tex. 2011); Gutierrez, supra.

The Third Circuit gave three reasons for its holding. In my view, each one is questionable.

Continue Reading Third Circuit Rules that TCPA Authorizes Consumers To Retract Consent to Cell Phone Calls

The plaintiffs’ bar continues to march forward in bringing privacy-related class actions. As we’ve written before, companies have often been able to defeat such lawsuits at the pleading stage when plaintiffs cannot allege that they suffered a harm that was concrete or cognizable. But that trend has not been universal: In a recent case involving Apple, the federal court for the Northern District of California refused to dismiss the majority of claims, in large measure because the plaintiff alleged that she relied on the company’s online representations concerning the privacy and security of personal information.

In Pirozzi v. Apple,
Continue Reading App Store Privacy Class Action Survives Apple’s Motion to Dismiss In Light Of Online Representations