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A U.S. District Court Judge in California dismissed a putative class action asserting claims under section 637.7 of the California Invasion of Privacy Act (CIPA) in a case that could have useful implications for automotive and other device manufacturers whose products have the ability to track location.  Plaintiff claimed that a third-party company, Otonomo Inc., partnered with automobile manufacturers to use the telematics control units (TCUs) installed in their vehicles to track a driver’s location via GPS without the driver’s knowledge.  The Court rejected the claim, holding that because the TCU devices were built-in, rather than devices added to a vehicle, they were not “attached” to the car and thus did not fall within the statute’s definition of “electronic tracking device.”…

Continue Reading Class Action Suit Brought Under CIPA Section 637.7 for Alleged Location-Based Tracking of Vehicles Is Dismissed

The Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission  authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.  See Jones …

Under the Ninth Circuit’s 2020 decision in Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), plaintiffs cannot recover equitable relief in federal court if they have an adequate legal remedy.  More than two years later, district courts remain divided on how to apply Sonner at the pleading stage, with some postponing the analysis to later stages and others routinely dismissing equitable claims.  In courts that take the stricter view, Sonner can be a useful tool for narrowing the claims class action defendants must litigate in a federal case, particularly in California, where common consumer protection claims are largely limited to equitable remedies.  That said, a pair of recent Ninth Circuit decisions highlights that defendants should carefully consider the risk that a plaintiff will refile dismissed equitable claims in state court.…

Continue Reading A Closer Look: Equitable Jurisdiction in the Ninth Circuit After Sonner

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

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