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Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

The California Court of Appeal recently reversed trial court judgments sustaining demurrers in two class action cases involving false advertising claims. In both cases the plaintiff alleged that he was misled to believe that “White Baking Morsels” or “White Baking Chips” contain white chocolate.

The defendants demurred on the ground that no reasonable consumer would believe that “White Baking” chips or morsels contain real white chocolate. The trial court agreed and entered judgment for the defendants. In both cases, the California Court of Appeal disagreed, holding that the plaintiff stated viable claims, and reversed.

Continue Reading California Court of Appeal Allows “White Baking” Chips Claims to Proceed

This past week, co-defendants in a class action related to the theft of cryptocurrency engaged in their own lawsuit over alleged security failures.  IRA Financial Trust, a retirement account provider offering crypto-assets, sued class action co-defendant Gemini Trust Company, LLC, a crypto-asset exchange owned by the Winklevoss twins, following a breach of IRA customer accounts.  IRA claims that Gemini failed to secure a “master key” to IRA’s accounts, and that hackers were able to exploit this alleged security flaw to steal tens of millions of dollars of cryptocurrency.  This lawsuit demonstrates the growing trend of cryptocurrency thefts resulting from cyber breaches, and ensuing litigation activity.

Continue Reading Litigation Between FinTech Companies Follows Class Action Over Cryptocurrency Theft

An Illinois federal court recently ruled that a Kroger shopper’s proposed class action lawsuit over “SMOKED GOUDA” cheese could proceed, holding that plaintiff’s interpretation of the label to mean the cheese was smoked over hardwood was not “inherently fanciful or unreasonable.”

The complaint, brought by Valerie Kinman under the Illinois Consumer Fraud and Deceptive Trade Practices Act (“ICFA”), alleges that the front label of the “SMOKED GOUDA” product is misleading because it “does not disclose that all of the Product’s smoked flavor is from liquid smoke, prepared by pyrolysis of hardwood sawdust, instead of being smoked over hardwoods.”  In denying Kroger’s motion to dismiss the complaint for failure to plead reasonable consumer deception, the court reasoned that the word “smoked” has at least two meanings—(1) “cured over burning wood” or (2) “an adjective that describes a flavor”—and is therefore ambiguous.  The phrase “distinctive, smoky flavor” on the front of the package did not resolve that ambiguity, moreover, because that phase, too, is subject to multiple interpretations, including that the cheese has such a flavor resulting from the process of smoking over hardwood.

Continue Reading Court Allows False Advertising Claims Over Kroger’s “Smoked Gouda” to Proceed

A bank partnership is the target of yet another “true lender” attack in a new class action filed last week. Michael v. Opportunity Fin., LLC, No. 1:22-cv-00529 (W.D. Tex. June 1, 2022).  The lawsuit is aimed at the lending partnership between OppFi (a fintech) and FinWise Bank (its bank partner), which was also the target of a recent investigation by California’s banking regulator and another class action earlier this year.  This latest development cements a growing trend of true lender attacks after Congress repealed a regulation on the topic last year, dashing hopes of a uniform and predictable standard to identify the “true lender” in bank partnerships.

Continue Reading Bank Partnership Attacked (Again) Under True Lender Theory

A recent class action filed in federal court against YouTube is the latest in a growing list of class actions against companies regarding their automatic renewal practices.

The suit alleges that YouTube and its parent company Google (together, “YouTube”) failed to provide the requisite disclosures and authorizations in connection with their subscription services, including YouTube TV, YouTube Music, and YouTube Premium, as required by Oregon’s Automatic Renewal Law (“ARL”) and in violation of Oregon’s Unlawful Trade Practices Act (“UTPA”).  See Walkingeagle, et al. v. Google LLC, et al., No. 3:22-cv-763 (D. Or.).  According to the complaint, YouTube enjoyed rapid growth in their user-base by employing “dark patterns” in their user interfaces to “trick” users into doing things they might not otherwise do, including signing up for recurring services (and bills).

Continue Reading YouTube Hit with Auto-Renewal Suit Over Its Online Subscriptions Services

On May 24, Kellogg Sales Co. defeated a third putative class action alleging that Strawberry Pop-Tarts mislead consumers, having defeated two other putative class actions in March.  Represented by prolific plaintiffs’ firm, Sheehan & Associates, Stacy Chiappetta, Kelvin Brown, and Anita Harris each sued Kellogg after realizing that the filling in Strawberry Pop-Tarts contains not just strawberries, but also small amounts of dried pears, dried apples, and the food dye red 40.  But two federal judges in Illinois and a third in New York have now agreed with Kellogg that the packaging of Strawberry Pop-Tarts is not misleading for the simple reason that the pastries in fact contain strawberries.

Continue Reading Kellogg Beats Pop-Tarts Class Actions

The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.

Continue Reading Consumer Survey Did Not Constitute Common Proof of Deception or Materiality

A recent class action refiled in federal court against Shopify highlights a growing trend  of lawsuits against companies related to the theft of cryptocurrency, particularly as a result of internal company threats.  See Forsberg et al v. Shopify, Inc. et al, 1:22-cv-00436 (D. Del.).  Despite not itself being a repository for or facilitating the sale of any cryptocurrency, the plaintiffs in the Shopify case allege that Shopify is liable for a theft of cryptocurrency after Shopify experienced a data breach caused by its own employees, which exposed a customer list for a cryptocurrency hardware wallet vendor, Ledger SAS.  As cryptocurrency storage and related transactions increasingly feature in companies’ online presence, there is likely to be a growing risk posed by threat actors motivated to target crypto-related assets and data, and more litigation activity in this space.

Continue Reading Companies Increasingly Facing Class Actions Connected to Cryptocurrency Theft

In a major victory for manufacturers of food and beverage products fighting acrylamide litigation under California’s Proposition 65 statute, the Ninth Circuit on March 17 upheld a preliminary injunction barring new lawsuits to enforce Prop. 65’s warning requirement for cancer as applied to acrylamide in food and beverage products, finding that the statute’s compulsory warnings are “likely misleading” and “controversial.”

Prop. 65 provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”  Cal. Health & Safety Code § 25249.6.  In October 2019, California Chamber of Commerce (“CalChamber”) filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under Prop. 65.  It argued that Prop. 65’s warning requirement violated its members’ First Amendment right not to be compelled to place “false and misleading” acrylamide warnings on their food products.  Acrylamide is often found in baked or fried foods, and has also been identified in products like coffee, almonds and black olives. 

CalChamber further moved for a preliminary injunction seeking a prohibition on new lawsuits to enforce the Prop. 65 warning requirement for cancer as applied to acrylamide in food and beverage products.  The Council for Education and Research on Toxics (“CERT”) intervened as a defendant and argued that, as a private enforcer of Prop. 65, an injunction would “impose an unconstitutional prior restraint on its First Amendment rights.”  

Continue Reading 9th Circuit Upholds Preliminary Injunction Against Prop. 65 Acrylamide Lawsuits

In the wake of rulings upholding federal regulators’ “valid when made” rules, a new lawsuit serves as a reminder that state regulators and class-action plaintiffs’ lawyers may continue to challenge the bank partnership lending model under the “true lender” doctrine.

Continue Reading Fintech Lawsuit Highlights True Lender Risk for Bank Partnership Lending Model