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Consumer Protection
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September 26, 2024
Nestlé Customers Win Class Cert. In Child Labor Labeling Suit
A California federal judge on Thursday granted class certification in litigation alleging Nestle USA misleads the public with "sustainably sourced" chocolate labels when its cocoa is produced through child labor and deforestation, rejecting the company's contention that classes can't be lumped together for different labels on different products.
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September 26, 2024
Google Lacks Power To Dictate Market, Ad Tech Judge Told
Google's lead expert witness described an online advertising placement technology industry rife with competition Thursday, telling a Virginia federal judge that the U.S. Justice Department's monopolization allegations exclude key competitors from an improperly defined market.
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September 26, 2024
Attys Worry OpenAI IP Row Will Drag On Amid AI Policy Push
A BigLaw attorney and consumer advocates found common ground during the seventh annual Berkeley Law AI Institute on Thursday expressing concerns that courts won't timely adjudicate copyright claims against OpenAI and others, while an FTC attorney noted the commission is already enforcing the Federal Trade Act against companies for over-hyping their AI.
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September 26, 2024
Legal Pros Grapple With Best Use Of AI As Clients Divide
BigLaw attorneys and in-house counsel speaking at the annual Berkeley Law AI Institute on Thursday talked about how they've recently grappled with using the tools known as artificial intelligence in representing clients, saying some clients have either demanded or prohibited attorneys from using the tools, and others have taken seemingly contradictory positions.
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September 26, 2024
HHS Flags Ransomware Rise In New Deal With Wash. Provider
A Washington state-based healthcare provider has agreed to pay $250,000 and boost its data security to resolve the U.S. Department of Health and Human Service's enforcement action over a 2017 ransomware attack, amid what the agency said has been a steep rise in reports of such cyberattacks over the past six years.
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September 26, 2024
Tornado Cash Developer Must Face Criminal Case
The founder of cryptocurrency mixing service Tornado Cash can't escape charges he conspired to launder money and violate sanctions, after a Manhattan federal judge ruled in an oral opinion Thursday that his "narrative" of being prosecuted over writing computer code should be put before a jury.
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September 26, 2024
Keller Postman Defends Hitting Tubi With 23K Arbitration Claims
Keller Postman LLC on Wednesday defended filing arbitration demands against Tubi Inc. without waiting 45 days after providing notice of claims, and urged a D.C. federal judge to toss the TV content platform's lawsuit, arguing that arbitration is the only route its clients have to dispute the enforceability of the contractual delay.
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September 26, 2024
Senate Bill Calls For Stronger Healthcare Cyber Standards
Democratic lawmakers introduced legislation Thursday aiming to better protect patient health information and avoid cyberattacks by strengthening cybersecurity standards, months after a highly publicized data breach earlier this year of a UnitedHealth unit that lacked basic security measures like two-factor authentication.
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September 26, 2024
General Mills Seeks To Ax Suit Claiming Cocoa Puffs Has Lead
General Mills urged a California federal court to toss a proposed consumer class action claiming its Cocoa Puffs cereal contains undisclosed and high levels of lead, saying the suit is based on a "flawed and implausible theory" that doesn't show lead is present in the cereal at unsafe levels.
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September 26, 2024
Colo. AG Says He Won't Call 'Ticky Tack' Privacy Fouls
Colorado Attorney General Phil Weiser told an audience of attorneys and privacy professionals Thursday that part of his privacy enforcement strategy is not to needle companies that are trying to comply with the law for minor violations.
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September 26, 2024
2nd Circ. Denies Jury Trial In Abbott Labs Gray Market Case
A man and his wife involved in the sale of gray market diabetes test strips on Tuesday were unable to persuade the Second Circuit to undo the $33.4 million judgment they owe to Abbott Laboratories after a federal judge stripped them of their right to a jury trial.
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September 26, 2024
FCC Hits Alleged Pirate Radio Operators With $1.8M In Fines
The Federal Communications Commission on Thursday slapped more than $800,000 in fines on three alleged pirate radio operators in the Miami area and proposed $1 million in forfeitures against three others in the New York City area.
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September 26, 2024
Snowflake, AT&T Data Breach Suit Must Be Joined, JPML Told
An attorney for plaintiffs suing cloud provider Snowflake Inc., which counts AT&T Inc. among its clients and suffered a series of high-profile hacks, urged the Judicial Panel on Multidistrict Litigation Thursday to consolidate all related litigation, saying the disputes revolve around common issues.
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September 26, 2024
Walgreens Struggles To Exit 'Non-Drowsy' Label Suit In Wash.
The Washington State Supreme Court questioned Thursday whether Walgreens could avoid state consumer protection claims over its "non-drowsy" cough medicine label by pointing to a lack of federal labeling requirements for the drug, with one justice calling the argument a non sequitur.
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September 26, 2024
FCC Opens Airwaves For NGSO Fixed Satellite Services
The Federal Communications Commission agreed Thursday to set aside a swath of spectrum in the 17 gigahertz band for non-geostationary orbit fixed satellite services, a move the agency says will advance competition and high-speed connectivity.
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September 26, 2024
Visa Case Continues Antitrust Focus On 'Middlemen'
The antitrust case filed by the U.S. Department of Justice against Visa on Tuesday is the administration's latest attack on commercial "middlemen" that enforcers say contribute to high consumer prices by using their dominance to charge inflated fees.
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September 26, 2024
Senate OKs Bill To Vet Broadband Funding Winners
The U.S. Senate has approved a bill to require screening of broadband providers for their ability to meet obligations under federal funding programs to subsidize deployment of high-speed service.
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September 26, 2024
Judge Certifies COVID-19 Refund Action Against Cedar Fair
An Ohio federal judge certified two classes of 2020 season pass holders with amusement park company Cedar Fair LP — which recently merged with Six Flags Entertainment Corp. — and also added some subclasses for the pass holders' claims that they are entitled to refunds after the amusement parks they bought passes for were shut down during the COVID-19 pandemic.
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September 26, 2024
Chancery Tosses Carvana Suit Alleging Faulty Sales
Delaware's chancellor has dismissed a stockholder derivative case against online used-car dealer Carvana Inc. that sought damages for alleged insider trading and legal complaince monitoring failures, a case that defense attorneys had branded "repackaged" from past or pending federal securities actions.
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September 26, 2024
4th Circ. Judge Thrashes Vets' Argument In Citibank Fee Suit
A Fourth Circuit judge on Thursday ripped military members' argument that they must be allowed under a military-members-lending law to proceed in federal court with a proposed class action alleging Citibank charged illegal fees, with the judge stressing that the statute is silent on forbidding arbitration.
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September 26, 2024
Ford Says $1.7B Ga. Verdict No Excuse For Delayed Claims
Lawyers for Ford Motor Co. said Thursday it strains credulity that Super Duty truck drivers didn't learn about their allegedly weak roofs until a billion-dollar jury verdict in Georgia, arguing in Michigan that decades of other suits and government documents could have clued in the plaintiffs sooner.
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September 26, 2024
5th Circ. Says Pair Can't Challenge Wi-Fi Program's New Rules
The Fifth Circuit won't take up a challenge to the Federal Communications Commission's new rules allowing for subsidized Wi-Fi off campus through the E-Rate program for schools and libraries, granting the FCC's motion to dismiss the case for lack of jurisdiction while an in-house challenge from the petitioners proceeds.
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September 26, 2024
Conn. PFAS Water Pollution Suit Returned To State Court
A Connecticut federal judge has sent back to state court a proposed class action accusing the Connecticut Water Co. of knowingly selling water contaminated with dangerous levels of PFAS and failing to take steps to remove the pollutants, saying the water supply system's arguments are "fatally flawed."
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September 26, 2024
En Banc 9th Circ. Doubts Dismissal Of Shopify Privacy Suit
Ninth Circuit judges sitting en banc Thursday appeared dubious of an earlier panel's conclusion that a California federal court lacked personal jurisdiction over Golden State consumers' privacy claims against Shopify Inc., questioning how internet companies could ever face tort claims if this were the law.
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September 26, 2024
Arthur J. Gallagher To Pay $21M To End Data Breach Suits
Insurance broker Arthur J. Gallagher & Co. has agreed to pay $21 million to resolve several lawsuits consolidated in Illinois alleging that it failed to protect more than 3 million customers from a data breach that compromised their personally identifiable information, with an Illinois federal judge giving her initial blessing to the deal Thursday.
Expert Analysis
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What 7th Circ. Samsung Decision Means For Mass Arbitration
The Seventh Circuit's recent decision in Wallrich v. Samsung highlights the dilemma faced by mass arbitration filers in the face of nonpayment of arbitration fees by the defending party — but also suggests that there are risks for defendants in pursuing such a strategy, says Daniel Campbell at McDermott.
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How Justices Upended The Administrative Procedure Act
In its recent Loper Bright, Corner Post and Jarkesy decisions, the U.S. Supreme Court fundamentally changed the Administrative Procedure Act in ways that undermine Congress and the executive branch, shift power to the judiciary, curtail public and business input, and create great uncertainty, say Alene Taber and Beth Hummer at Hanson Bridgett.
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FTC Drives Crackdown On Connected Cars' Data Privacy Risk
After the Federal Trade Commission's warning to automakers about data privacy, which continues to emerge as a national concern, automakers must carefully examine their data collection, use and retention practices, say Catherine Castaldo and Michael Rubayo at Reed Smith.
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Jarkesy May Thwart Consumer Agencies' Civil Penalty Power
The U.S. Supreme Court's ruling in U.S. Securities and Exchange Commission v. Jarkesy not only implicates future SEC administrative adjudications, but those of other agencies that operate similarly — and may stymie regulators' efforts to levy civil monetary penalties in a range of consumer protection enforcement actions, say attorneys at Holland & Knight.
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How Courts Split On Damages Analysis In Automotive Suits
As high-profile vehicle recalls and lawsuits alleging vehicle defects surge, many plaintiffs are turning to choice-based conjoint analysis to calculate damages, but a review of federal district court decisions reveals a range of views on the validity of this methodology, say Joshua Hochberg and Shireen Meer at Berkeley Research.
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Considerations As State AGs Step Up Privacy Enforcement
As new state privacy laws take effect, businesses are facing an increasingly complex patchwork of compliance obligations and risk of scrutiny by attorneys general, but companies can gain a competitive edge by building consumer trust and staying ahead of regulatory trends, say Ann-Marie Luciano and Meghan Stoppel at Cozen O’Connor.
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2 Vital Trial Principles Endure Amid Tech Advances
Progress in trial technologies in the last 10 years has been transformative for courtroom presentations, but two core communication axioms are still relevant in today's world of drone footage evidence and 3D animations, say Adam Bloomberg and Lisa Walters at IMS Legal Strategies.
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Lessons From Rising Fake Discount Consumer Class Actions
Ellen Robbins and Scott Allbright at Akerman discuss the rise of false reference price consumer class actions and outline key strategies to minimize legal risk and protect businesses.
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How Cos. With Chinese Suppliers Should Prep For Biotech Bill
A proposed bill to prohibit government-affiliated life sciences companies from contracting with Chinese biotech companies of concern may necessitate switching to other sources for research and supplies, meaning they should begin evaluating supply chains now due to the long lead times of drug development, say John O'Loughlin and Christina Carone at Weil Gotshal.
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Classwide Calculations May Get Price Premium Damages Wrong
In many consumer class actions, plaintiffs assert that they overpaid for a product because of a misrepresented or defective product feature, and that a single price premium estimate can be applied classwide — but failure to account for differences in price premiums across a putative class may lead to improper damage awards, say economists at Ankura Consulting.
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Opinion
Texas Judges Ignored ERISA's Core To Stall Fiduciary Rule
Two recent rulings from Texas federal courts, which rely on a plainly wrong reading of the Employee Retirement Income Security Act to effectively strike a forthcoming rule that would impose functional fiduciary duties onto sellers of investment services, may expose financially unsophisticated 401(k) participants to peddlers of misleading advice, says Mark DeBofsky at DeBofsky Law.
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Inside OCC's Retail Nondeposit Investment Products Refresh
In addition to clarifying safe and sound risk management practices generally, the Office of the Comptroller of the Currency's revised booklet on retail nondeposit investment products updates its guidance around certain sales practices in light of the U.S. Securities and Exchange Commission's adoption of Regulation Best Interest, say attorneys at Debevoise.
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Mirror, Mirror On The Wall, Is My Counterclaim Bound To Fall?
A Pennsylvania federal court’s recent dismissal of the defendants’ counterclaims in Morgan v. Noss should remind attorneys to avoid the temptation to repackage a claim’s facts and law into a mirror-image counterclaim, as this approach will often result in a waste of time and resources, says Matthew Selmasska at Kaufman Dolowich.
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Loper Fuels Debate Over Merchant Cash Advances As Credit
The U.S. Supreme Court's recent rejection of the Chevron doctrine in Loper Bright may escalate a Florida federal court dispute between the Revenue Based Finance Coalition and the Consumer Financial Protection Bureau over whether merchant cash advances should be considered credit under the Dodd-Frank Act, say attorneys at Sheppard Mullin.
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FTC's Drug Middlemen Probe Highlights Ongoing Scrutiny
The Federal Trade Commission's interim staff report on its inquiry into pharmacy benefit managers suggests that the industry will remain under an enforcement microscope for the foreseeable future due to concerns about how PBMs affect drug costs and accessibility, say attorneys at Arnold & Porter.