On July 3, 2018, Governor David Ige of Hawaii signed SB 2571 into law, banning the sale or distribution of any “SPF sunscreen protection personal care product” that contains chemicals oxybenzone or octinoxate without a prescription issued by a licensed healthcare provider. “SPF sunscreen protection personal care product” is broadly defined to include, without limitation, any lotion, paste, balm, ointment, cream, solid stick applicator, brush applicator, roll-on applicator, aerosol spray, non-aerosol spray pump, and automated and manual mist spray. The ban, which Governor Ige indicated is intended to protect marine ecosystems including coral reefs, will go into effect on January 1, 2021. Estimates indicate that at least 70 percent of sunscreen products contain oxybenzone or octinoxate. Continue Reading Hawaii Governor Signs Law Banning Chemicals from Sunscreen Products

On June 11, 2018, the United States Supreme Court ruled that American Pipe tolling does not extend to follow-on class actions brought after the statute of limitations period has run. This decision resolves a split between circuit courts over the question of whether a putative class member can rely on American Pipe to toll applicable statute of limitations to file a new class action in lieu of promptly joining an existing suit or filing an individual action. The Court held that “American Pipe tolls the statutes of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.” China Agritech, Inc. v. Resh, — S. Ct. —, 2018 WL 2767565, at *3 (2018).  Continue Reading Supreme Court Limits American Pipe Tolling for Consecutive Class Actions

It is no secret that California has had appliance efficiency standards in place for some time now. And it is no secret that the California Energy Commission (“CEC”) has been responsible for crafting those standards. According to the CEC and the California State Legislature, however, compliance with those standards has been hit-or-miss. In 2011, the Legislature found that “significant quantities of appliances are sold and offered for sale in California that do not meet the state’s energy efficiency standards,” and the CEC itself has stated that nearly half of all regulated appliances are non-compliant, and that certain product categories are entirely non-compliant. The broad range of products covered by the CEC’s efficiency standards may be partly to blame for the lack of compliance, as manufacturers may not even realize their product must comply. For example, the efficiency standards encompass nearly every device with a rechargeable battery and that rechargeable battery system, meaning everything from cell phones to laptops to tablets to golf carts must be tested, certified and listed in the CEC’s database before being offered for sale in California.  Continue Reading California’s Appliance Efficiency Standards and the Cost of Non-Compliance

On March 14, 2017, the Consumer Review Fairness Act of 2016 (the “Fairness Act”) will come into effect, 90 days after it was signed into law by President Obama. The Fairness Act voids any provision in a form contract between a consumer and a business that (1) restricts the consumer’s ability to leave reviews, (2) imposes penalties for leaving negative reviews or (3) transfers intellectual property rights in reviews or feedback content from the consumer to the business. The Fairness Act was passed in response to an increase in the use of so-called “non-disparagement clauses” that prohibited consumers from sharing their honest opinions about a seller’s goods, services or conduct. Continue Reading How Companies Can Comply with the Newly Effective Consumer Review Fairness Act

On January 13, 2017, the United States Supreme Court agreed to resolve the question of whether class action waivers in the employment context violate the National Labor Relations Act (“NLRA”). The decision will have far-reaching consequences for retailers who include such waivers in employee arbitration agreements in an effort to limit class action exposure.  Continue Reading U.S. Supreme Court to Decide Enforceability of Class Action Waivers in Employee Arbitration Agreements

On January 3, 2017, a Ninth Circuit panel (the “panel”) weighed in on a growing split among circuits over Rule 23’s ascertainability requirement—in particular, the extent to which a plaintiff must prove there is an “administratively feasible” means of identifying class members. Continue Reading Ninth Circuit Widens Circuit Split on Rule 23’s Ascertainability Requirement

In this post-Spokeo world, a defendant facing the all-too-common “no-injury” putative class action might be tempted to seek dismissal of the lawsuit on Article III grounds. But a panel of Ninth Circuit judges recently gave a compelling reason why defendants should strongly consider otherwise. In Polo v. Innoventions Intern. LLC, a Ninth Circuit panel reversed the dismissal of a putative class action based on a lack of jurisdiction, with instructions to remand the case to state court. We previously reported about this possibility following the issuance of Spokeo, into which a Ninth Circuit panel now has breathed life. Continue Reading Why Not to Move for Dismissal under Article III

On July 29, 2016, President Obama signed into law a bill that will establish federal standards for labeling of food products that contain ingredients from genetically modified organisms (“GMOs”). Several consumer advocates opposed the bill, as it preempts more stringent labeling requirements in states like Vermont. However, several advocates on the other side favored the notion of national, uniform standards, as opposed to a patchwork of individualized state labeling laws. Continue Reading President Obama Signs Bill That Will Establish Federal GMO Labeling Standards

On May 16, 2016, the United States Supreme Court rendered its decision in Spokeo, Inc. v. Robins, Case No. 13-1339, a case that businesses and the plaintiffs’ bar have been following closely, due largely to its potential effect on class actions predicated on alleged statutory violations and seeking solely statutory damages. In an opinion authored by Justice Alito, the Court held that a plaintiff must do more than plead a statutory procedural violation to establish standing; to plead an injury in fact, a plaintiff also must allege a harm that is both “concrete” and “particularized.” However, the Court did not apply its holding to the facts, instead remanding for further analysis by the Ninth Circuit. While both plaintiffs’ attorneys and defense attorneys are claiming a “victory,” Spokeo provides some ammunition for businesses that find themselves facing so-called “no-injury” class action lawsuits predicated on consumer protection statutes.  Continue Reading Supreme Court Issues Decision in Spokeo v. Robins; Must Allege Concrete Injury For Technical Statutory Violations

We previously reported on the United States Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), wherein a 6-3 majority held that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.” As part of its decision, however, the Supreme Court expressly left open one critical question: whether a defendant can moot a case by tendering—as opposed to simply offering—complete relief to the plaintiff. The Ninth Circuit has now weighed in on that issue and has answered that question in the negative. Continue Reading Ninth Circuit Panel Weighs In on Critical Issue Left Open by Campbell-Ewald