Consumer Law

In a significant decision for businesses who are attempting to revise their consumer arbitration clauses to address the prospect of mass arbitration, the Ninth Circuit affirmed the district court’s denial of Live Nation and Ticketmaster’s motion to compel arbitration, based largely on the content of the mass arbitration provisions of their arbitration agreement.  Heckman v. Live Nation Ent., Inc., – F.4th –, 2024 WL 4586971 (9th Cir. Oct. 28, 2024).  The court concluded that the “dense, convoluted and internally contradictory” arbitration rules cross referenced in Ticketmaster’s arbitration provision, along with other elements of the provision, rendered it unenforceable.  The court also held, on an alternate basis, that the Federal Arbitration Act (FAA) did not even apply to the mass arbitration procedure at issue because it is “not arbitration as envisioned by the FAA.”Continue Reading A Closer Look: Ninth Circuit Holds Arbitration Agreement with Certain Mass Arbitration Protocols Unenforceable

In the latest false advertising decision regarding malic acid (see prior Inside Class Actions coverage here, here, and here), the Southern District of California dismissed with prejudice a plaintiff’s claim that defendant falsely advertised that its licorice was “naturally flavored” because testing allegedly showed that the product…

Continue Reading California Federal Court Dismisses False Advertising Suit Based on Malic Acid

In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts.  See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).Continue Reading Ninth Circuit Addresses National Bank Act Preemption after Supreme Court Decision

In Montera v. Premier Nutrition Corp., — F.4th —, 2024 WL 3659589 (9th Cir. Aug. 6, 2024), the Ninth Circuit vacated and remanded a district court’s statutory damages award, holding that an aggregate award of statutory damages is not subject to the Supreme Court’s State Farm due process standard for punitive damages, but should instead be assessed in light of the proportionality and reasonableness of the aggregate award considering the legal violation committed. Continue Reading Ninth Circuit Gives Plaintiffs Second Chance at $91 Million in Statutory Damages

California’s prohibition on so-called “hidden” or “junk” fees in consumer transactions is set to take effect on July 1, 2024, with potentially wide-ranging ramifications for how prices are displayed or offered to consumers in the Golden State – and the potential for a significant wave of new class action litigation.

The law—often referred to by its bill number, SB 478—amends California’s Consumer Legal Remedies Act (“CLRA”) to restrict the prices and fees businesses can offer to California consumers.  The basic prohibition is stated in simple terms:  businesses can no longer “advertis[e], display[], or offer[] a price for a good or service that does not include all mandatory fees or charges” to consumers, with limited exceptions such as for sales tax and certain shipping charges.  SB 478 § 3 (to be codified at Cal Civ. Code § 1770(a)(29)(A)).  But this simple language generates numerous complexities.  For example:  Are clearly disclosed fees prohibited if not folded into the main price, or just fees not presented to consumers in close proximity (in both location and time) to the primary price?  When is a fee “mandatory”?  Can fees that are included in a price still be itemized? Continue Reading Outlawing Hide-and-Seek:  California’s Prohibition on “Hidden Fees” in Consumer Pricing Set to Take Effect

In two recent decisions, federal courts of appeals confirmed they are prepared to give close scrutiny to a class settlement that offers a hefty payday to plaintiffs’ counsel with very little genuine benefit to any class.Continue Reading A Closer Look:  Appellate Courts Closely Scrutinize Settlements

Environmental, social, and corporate governance (ESG) initiatives have become increasingly important in today’s business setting.  Increased awareness and heightened scrutiny of ESG-related issues, combined with third-party litigation funding, has led to a surge in ESG-related litigation and enforcement actions as consumers, regulators, and investors seek to hold companies accountable for claims about their environmental and social impact.  

This post explores the emerging trends shaping the landscape of ESG litigation, which are increasingly centralized in courts in the District of Columbia.  Such claims are often brought by nonprofit organizations seeking to take advantage of local consumer protection laws which they claim allow them standing to sue.Continue Reading A Closer Look: Developing Trends in ESG Litigation

The Southern District Court of New York recently denied a motion to dismiss a false advertising lawsuit against a water bottle company, holding that a reasonable consumer could be misled by the company’s “carbon neutral” labeling.Continue Reading New York Federal Court Denies Motion to Dismiss False Advertising Suit Based on “Carbon Neutral” Claims

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