We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for

Last September, we reported on a 2-1 Ninth Circuit decision holding that even if an arbitration clause appears to be unenforceable under the prospective waiver doctrine, a delegation provision requiring the arbitrator to decide that issue in the first instance is still enforceable.  Brice v. Haynes Invs., LLC, 13 F.4th 823 (9th Cir. 2021).  This decision reversed the district court’s order denying defendants’ motion to compel arbitration.  Because the district court action was not stayed pending the appeal, it proceeded through class certification and pretrial motions.  The Ninth Circuit now has vacated the panel decision and decided to rehear the case en banc.

Continue Reading Update: Ninth Circuit Might Backtrack on When an Arbitrability-Related Question May be Delegated to an Arbitrator

Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility.  In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA guidance reaffirms that companies may

Companies that include arbitration agreements in online terms and conditions may want to take note of a recent Ninth Circuit opinion that refused to enforce an arbitration agreement on lack-of-consent grounds even though the arbitration agreement contained an opt-out provision.

In Berman v. Freedom Financial Network, LLC, the Ninth Circuit affirmed the district court’s

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

A recent Ninth Circuit decision emphasizes that it will vacate class settlement approvals whenever district courts fail to apply the proper legal standards to assess class settlements.  In Saucillo v. Peck, 2022 WL 414692 (9th Cir. Feb. 11, 2022), the underlying dispute concerned allegations that a trucking company failed to follow a California labor law requiring employers to reimburse employees for expenses incurred on the job.  After the court denied a contested motion for class certification, the parties agreed to a class settlement and the district court approved the agreement under Rule 23(e).  On appeal, an objector raised—for the first time—that the district court incorrectly analyzed whether the settlement was fair given that the court had not previously certified the class.

Continue Reading 9th Circuit Holds that Failure to Apply Correct Legal Standard is Fatal to Class Settlement Approval Even if Not Argued Before District Court

The Ninth Circuit has again confirmed that predominance may be absent if an individualized analysis is required to determine whether each class member has suffered actual injury.  In Lara v. First National Insurance Co. of America, — F.4th —, 2022 WL 414691 (9th Cir. Feb. 11, 2022), the plaintiffs alleged that the defendant breached its insurance contracts with consumers when it failed to apply the formula required under Washington law to determine the pre-accident market value of totaled vehicles.  The record showed that that the payments the defendant made to its policyholders were not consistently affected adversely by its failure to apply the allegedly required methodology, and that some class members could have received amounts equal to or greater than what they were entitled to under the plaintiffs’ theory of the case. 

Continue Reading Ninth Circuit Affirms Denial of Class Certification for Contract Claims Requiring Individualized Findings of Injury

A recent Ninth Circuit decision highlights the importance of considering whether a plaintiff’s failure to comply with a state-law pre-suit notice requirement can be used to quickly defeat a class action. The court rejected plaintiff’s argument that such pre-suit notice rules do not apply to putative class actions.

Continue Reading Ninth Circuit Confirms State-Law Pre-Suit Notice Requirements Apply to Putative Class Representatives