Ninth Circuit

Last year, in an important decision for companies that routinely face false advertising claims, the Ninth Circuit held that when “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.”  McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 2023).  The Ninth Circuit recently further clarified when reference to the back label is appropriate.  See Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024).Continue Reading Ninth Circuit Further Refines Rule on When Back Labels Should Be Considered in False Advertising Claims

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

A Central District of California court recently dismissed a putative privacy class action after determining that the movie theater defendants were not Video Tape Service Providers as defined by the Video Privacy Protection Act (“VPPA”).  See Walsh v. California Cinema Investments LLC, 2024 WL 3593569 (C.D. Cal. July 29, 2024).  Two other California federal courts recently have reached similar conclusions, and appeals of those rulings are currently pending before the Ninth Circuit.  See Garza v. Alamo Intermediate II Holdings, LLC, 2024 WL 1171737, at *1 (N.D. Cal. Mar. 19, 2024); Osheske v. Silver Cinemas Acquisition Co., 700 F. Supp. 3d 921 (C.D. Cal. 2023).Continue Reading Another California Federal Court Rules Movie Theater Is Not “Video Tape Service Provider” Under the VPPA.

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

Delivering a significant win for businesses hit with website wiretapping lawsuits, a California federal judge granted a defendant’s motion for summary judgment under the California Invasion of Privacy Act (“CIPA”) in Gutierrez v. Converse Inc., 2024 WL 3511648 (C.D. Cal. Jul. 12, 2024). 

The website tool at issue in this case, like hundreds of other cases, was a third-party-enabled chat feature that businesses install on their websites to connect customers with live customer service agents.  Plaintiff Nora Gutierrez alleged that she visited Defendant Converse’s website with this chat feature installed, and that the chat provider stored her chat communications with Converse’s customer service agents on its servers.  Gutierrez characterized this practice as “wiretapping” and she asserted a claim against Converse for aiding and abetting the alleged wiretapping in violation of the first and second clause of CIPA section 631(a).Continue Reading California Federal Court Grants Summary Judgment to Defendant in CIPA Website Wiretapping Case

Hundreds of lawsuits have accused businesses of using website analytics tools to “wiretap” their customers’ interactions with their website, but these lawsuits often overlook a basic pleading requirement of any wiretapping claim: the collection of a “communication.”  A California federal judge last week added teeth to this requirement, dismissing a wiretapping lawsuit filed against Great Wolf Resorts, Inc. (“Great Wolf”) because the plaintiff failed to plead what “communication” she had with the Great Wolf website in the first place.  See Augustine v. Great Wolf Resorts, Inc., 2024 WL 3450967 (S.D. Cal. July 18, 2024).Continue Reading California Federal Court Puts Teeth Behind “Communication” Element of Website Wiretapping Claims

In Davidson v. Sprout Foods, Inc., — F.4th —, 2024 WL 3213277 (9th Cir. June 28, 2024), a divided Ninth Circuit panel held that private plaintiffs can bring claims for violations of California’s food labeling law that mirror federal law requirements, even though private plaintiffs lack a cause of action to enforce federal law directly.  In reaching this conclusion, the court determined that the Federal Food, Drug, and Cosmetic Act (FDCA) does not preempt private enforcement of California’s Sherman Law, even though the Sherman Law incorporates the FDCA by reference and private plaintiffs typically cannot sue to enforce the FDCA.Continue Reading Split Ninth Circuit Panel Permits Private Plaintiffs to Use California Food Labeling Law to Enforce Federal Standards

A federal judge in the Northern District of California recently dismissed a class action complaint accusing Google of unlawfully wiretapping calls to Verizon’s customer service center through its customer service product, Cloud Contact Center AI.  See Ambriz v. Google, LLC, No. 3:23-cv-05437 (N.D. Cal. June 20, 2024).Continue Reading California Federal Court Dismisses Complaint Accusing Google of Wiretapping Customer Service Calls

In a case of first impression, the Ninth Circuit recently held that when there is ambiguity about the scope of a putative or certified class, American Pipe statute of limitations tolling should generally apply to potentially excluded class members.  This question is likely to arise where a proposed class definition is narrowed during the course of litigation such that certain putative members may no longer fit within the definition.  Should those now-excluded bystander plaintiffs argue that American Pipe tolling applies to their claims, courts in the Ninth Circuit are now instructed to resolve that ambiguity in favor of such bystander plaintiffs.Continue Reading A Closer Look: Ninth Circuit Extends American Pipe Tolling to Potentially Excluded Class Members in Face of Ambiguous Class Definitions

A federal judge in the Western District of Washington recently dismissed a class action complaint accusing Overlake Hospital Medical Center of unlawfully disclosing the health data of patients who accessed its websites to third parties.  See Nienaber v. Overlake Hosp. Med. Ctr., 2024 WL 2133709 (W.D. Wash. May 13, 2024).  Plaintiff Jacq Nienaber, an Overlake patient, alleged that the hospital shared her private data with Meta and other third parties through the use of the Meta Pixel and Meta’s Conversions Application Programming Interface on its public website and private patient portal. Continue Reading Washington Federal Court Dismisses Privacy Claims Involving Hospital Website