Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.” See Trim v. Reward Zone USA LLC, — F.4th –, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023).
Continue Reading Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA
Recent decisions from the First and Ninth Circuits may help defendants facing false advertising challenges to certain types of labeling statements known as “structure/function claims.” Three courts have held that such challenges were preempted by the Food, Drug, and Cosmetic Act (FDCA).
The Supreme Court, in a 5–4 ruling, has resolved a circuit split on the issue of litigation stays pending appeal of denials of motions to compel arbitration. In the underlying putative class action, Bielski et al v. Coinbase, Inc., 3:21-cv-07478 (N.D. Cal.), Coinbase moved to compel arbitration of the plaintiffs’ claims, but the motion was denied by the district court. The Ninth Circuit—in a split from several other Circuits—declined to stay the district court proceedings while the appeal was pending. The Supreme Court now has ruled that a district court must stay proceedings while an interlocutory appeal on the question of arbitrability is ongoing. The decision means that defendants should be able to minimize ongoing litigation costs while an appeal of an adverse arbitration decision is pending.
A Northern District of California court recently dismissed a putative California class action against The J.M. Smucker Company (“J.M. Smucker”) for lack of personal jurisdiction because it did not purposefully target California in operating its marketing website for the Folgers coffee brand. See Carroll v. J.M. Smucker Co., No. 3:22-cv-08952 (N.D. Cal. June 15, 2023).
Continue Reading J.M. Smucker Defeats Putative VPPA Class Action on Jurisdictional Grounds
The Ninth Circuit recently affirmed summary judgment in favor of a manufacturer of glucosamine dietary supplements, holding that plaintiffs’ state law claims sought to impose requirements different from those under the federal Food, Drug, and Cosmetic Act (FDCA) and were thus preempted. Hollins v. Walmart Inc., 67 F.4th 1011 (9th Cir. 2023).
Plaintiffs’ case targeted Walmart’s “Spring Valley Glucosamine Sulfate” product, later relabeled “Spring Valley Glucosamine Sulfate Potassium Chloride,” alleging that the product was mislabeled under California law because it did not actually contain glucosamine sulfate or glucosamine sulfate potassium chloride. Rather, plaintiffs alleged that the product was comprised only of glucosamine hydrochloride, which purportedly does not offer the same clinical benefits. The Ninth Circuit, in a split decision, affirmed the district court’s conclusion that plaintiffs’ claims under California law were preempted.
In a decision that boosts defendants’ chances of defeating mislabeling claims at the pleading stage, a Ninth Circuit panel held that that the Food Drug and Cosmetic Act (“FDCA”) expressly preempted plaintiffs’ claims. See Pardini et al. v. Unilever United States, Inc., No. 21-16806 (9th Cir. Apr. 18, 2023).
The Ninth Circuit recently held that a class could be certified with class members who lost less than a penny of interest. But it also held that where some class members may have lost nothing at all, the district court must take a hard look at whether the predominance requirement has been met.
The Ninth Circuit recently held in Chamber of Commerce v. Bonta that the Federal Arbitration Act preempts a California law that criminalizes employer conduct that requires employees to consent to arbitrate claims arising under the California Fair Employment and Housing Act. This ruling came after the same panel previously held that the law, Assembly Bill 51, was not preempted because it focused on “pre-agreement” behavior and not the arbitration agreement itself. In 2021, the panel sua sponte decided to rehear the case, apparently after Judge Fletcher (who was in the majority in both decisions) changed his mind on the law’s validity. In doing so, the panel eliminated a circuit split it had previously created between itself and the First and Fourth Circuits.
Continue Reading Ninth Circuit Reverses Course on Arbitration
The California Attorney General has joined the fray in Souter v. Edgewell, an otherwise little‑watched putative class action pending in the Ninth Circuit over allegedly misleading label claims about the efficacy and safety of the defendant’s hand wipes. The Attorney General is urging the Ninth Circuit to make it far more difficult for defendants
In a one-line order issued last week, the Supreme Court dismissed In Re Grand Jury, No. 21-1397, one of the most significant cases about the attorney-client privilege in decades. The dismissal came just two weeks after oral argument. The Court explained that the writ of certiorari had been “improvidently granted,” meaning the Court should