This blog recently covered a decision from the Northern District of California denying a defendant’s motion for summary judgment on a plaintiff’s “greenwashing” claims, which asserted that defendant’s “non-toxic” and “Earth-friendly” labels were false and misleading.  See Bush v. Rust-Oleum Corp., 2024 WL 308263 (N.D. Cal. Jan. 26, 2024).  Now, the same court has granted class certification on those claims, demonstrating that not only can these claims be difficult to defeat before trial, but it can also be difficult to prevent certification on those claims as well.

Continue Reading “Greenwashing” Claims Certified For Class Treatment

The Ninth Circuit recently dismissed a putative class action by an online business over allegations that Google placed search results over the business’s website. While the district court had denied a motion to dismiss, the Ninth Circuit reversed, holding that copies of websites are not chattel that could support a trespass to chattel claim and that the Copyright Act preempted the remaining claims of unjust enrichment, implied in law contract, and unfair competition.

Continue Reading Ninth Circuit Dismisses Website Framing Claim as Preempted by Copyright

The District Court for the Northern District of Illinois recently granted in part a motion to dismiss a putative class action complaint asserting wiretapping, Illinois Biometric Information Privacy Act (“BIPA”), and consumer protection claims relating to their eufy home security cameras and video doorbells (the “Eufy Products”).  See Sloan, et al. v. Anker Innovations Ltd., No. 22-CV-7174 (N.D. Ill. Jan. 9, 2024).  Plaintiffs contend in their complaint that the Eufy Products applied a facial recognition program to differentiate images of known and unknown individuals within home security services and purportedly misrepresented data storage and encryption practices for the Eufy Products.

Continue Reading Illinois Federal Court Partially Dismisses Wiretapping, BIPA Claims Involving Home Security Products

A federal judge in the Western District of Texas recently sided with a growing trend of rulings adopting a narrow reading of the Video Privacy Protection Act (VPPA) in dismissing a putative class action against the operators of a Texas Longhorns email newsletter.  The case involved tracking pixels embedded in videos that were linked in the newsletter but posted to public websites.  The court held that because the plaintiffs had not made a durable commitment through signing up for the newsletter, and because videos were not embedded in the newsletter, plaintiffs failed to meet the definition of “consumer” as defined in the VPPA.

Continue Reading Judge Highlights Trend of Narrow Reading of VPPA In Class Action Dismissal

As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.

Continue Reading N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial

The ever increasing threats of mass arbitration have led many companies to re-examine the terms of their contracts with consumers and to include provisions intended to guard against such threats.  One of the options some companies may find themselves considering is doing away with the arbitration clause but keeping the class action waiver.

Continue Reading NJ Supreme Court to Rule on Whether Class Action Waiver is Enforceable Absent an Arbitration Clause

Opt-out collective actions (i.e. US-style class actions) can only be brought in the UK as competition law claims.  Periodic proposals  to legislate to expand this regime to consumer law claims have so far faltered.  However, this is now back on the Parliamentary agenda.  Several members of the House of Lords have indicated their support for expanding the regime to allow consumers and small businesses to bring opt-out collective actions for breaches of consumer law, and potentially on other bases.

If implemented, this expansion would be very significant and would allow for many new types of class actions in the UK.  Tech companies are already prime targets as defendants to competition-related opt-out class actions.  An expansion of the regime to allow actions for breaches of consumer law, as well as competition law, would only increase their exposure further.

As there is now limited time for legislation to be passed to effect such changes before the UK Parliament is dissolved in advance of an upcoming general election, this may be an issue for the next Parliament.  It will therefore be important to assess what the UK’s main parties say on this – and any manifesto commitments – in the run-up to the election.

Continue Reading UK Opt-Out Class Actions for Non-Competition Claims back on Parliamentary Agenda

The Fourth Circuit recently reinstated a wrongful death suit against a defendant, holding that the release in a settlement of consumer class actions against the defendant did not preclude plaintiff’s personal injury suit against that same defendant.  See In re Lumber Liquidators Chinese-Manufactured Flooring Prod. Mktg., Sales Pracs. & Prod. Liab. Litig., — F. 4th —, 2024 WL 174363 (4th Cir. Jan. 17, 2024).  The Fourth Circuit’s decision is notable given that class members—including plaintiff—explicitly agreed to release all personal injury claims against the defendant, yet the Fourth Circuit held that the plain language of the release was limited by the “identical factual predicate” doctrine and allowed the class member to raise this challenge in a subsequent lawsuit.

Continue Reading Fourth Circuit Holds That Consumer Class Action Release Does Not Necessarily Release Personal Injury Claims

A California district court recently dismissed two lawsuits that asserted that the marketing of certain tampons was misleading due to the alleged presence of per and polyfluoroalkyl substances (“PFAS”), holding that plaintiffs could not rely on conclusory assertions regarding testing that allegedly detected PFAS in the products.

Continue Reading Court Dismisses Lawsuits Alleging Presence of PFAS in Tampon Products

Companies implementing arbitration provisions should ensure that they adequately inform customers about the provision and their options for opting out.  The Second Circuit recently reaffirmed the importance of this exercise in Lipsett v. Popular Bank, 2024WL 111247 (2nd Cir. Jan. 10, 2024), finding a bank’s arbitration provision unenforceable over a decade after it was first implemented.

Continue Reading Second Circuit Identifies Pitfalls to Avoid When Implementing Arbitration Provisions