Ninth Circuit

On Wednesday, November 13, the Supreme Court heard oral argument in the case NVIDIA Corp. v. Ohman J, a class action suit filed in the Northern District of California alleging securities fraud under § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.  Early signals from the Justices’ questions have led observers to believe that the Court may affirm the Ninth Circuit’s decision to reverse and remand the decision granting Nvidia’s motion to dismiss for failure to state a claim. Continue Reading Supreme Court Expresses Skepticism Regarding Nvidia’s Motion to Dismiss Securities Class Action

Earlier this month, the Ninth Circuit held in Sweet v. Cardona that although a third-party intervenor who wishes to object to a class settlement may have Article III standing based on an alleged reputational harm from the settlement, the intervenor nonetheless lacks standing to challenge a district court’s final approval…

Continue Reading Ninth Circuit Holds That Third-Party Intervenors Do Not Have Standing to Challenge Class Action Settlements

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 a concise decision issued earlier this month, the Ninth Circuit affirmed a district court ruling that individuals failed to state a claim against YouTube and parent company Google based on alleged violations of Oregon’s Automatic Renewal Law (“ARL”) and Free Offer Law (“FOL”).  See Walkingeagle v. Google, LLC, 2024 WL 4379734 (9th Cir. Oct. 3, 2024).  The appellants initially brought their claims as a putative class action, alleging that YouTube/Google failed to comply with ARL and FOL requirements related to subscription services YouTube Music, YouTube Premium, and YouTube TV.  The district court dismissed the case with prejudice, which the Ninth Circuit affirmed. Continue Reading Ninth Circuit Affirms Dismissal of Putative Class Action Against YouTube Based on Oregon’s Autorenewal Laws

Under Ninth Circuit precedent, when a defendant brings a factual challenge to jurisdiction, the district court may resolve factual disputes so long as the jurisdictional and merits inquiries are not intertwined.  But where the jurisdictional and merits inquiries are intertwined, the court must treat the motion like a motion for summary judgment and “leave the resolution of material factual disputes to the trier of fact.”  The Ninth Circuit recently confirmed that the same rules apply to a factual challenge to Article III standing.Continue Reading Ninth Circuit Holds Courts Cannot Decide Factual Disputes in Standing Challenges Where Standing and Merits Analyses Are Intertwined

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