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

Last week, in Vitort v. The Kroger Co., No. 3:20-cv-01317-AC, 2022 U.S. Dist. LEXIS 18291 (D. Or. Feb. 1, 2022), the District of Oregon dismissed a putative class action claiming that a blackberry spreadable fruit product labeled “Just Fruit” misleads consumers into believing it contains only blackberry fruit, when its primary ingredient is fruit syrup with significant added sugars and other additives.  Defendants argued the product’s label is accurate because all of its ingredients—including the sugar—are derived from fruit.

Continue Reading “Just Fruit” Does Not Mean Only Unprocessed Fruit

The Ninth Circuit has continued to chip away at California’s McGill rule, which bars the enforcement of arbitration provisions that waive a plaintiff’s right to seek public injunctive relief in any forum. In Cottrell v. AT&T Inc., 2021 WL 4963246 (9th Cir. Oct. 26, 2021), the court extended its earlier decision in Hodges v.

Although plaintiffs often assume that breach-of-contract claims arising out of form agreements are readily susceptible to class certification, two recent appellate decisions cast doubt on that thinking. The First Circuit affirmed denial of class certification of claims arising from an annuity certificate, agreeing with the district court that common issues did not predominate over individual