The Ninth Circuit Court of Appeals recently affirmed the dismissal of a putative class action lawsuit brought by a consumer who claimed that The Kroger Company supermarkets falsely advertised its spreadable fruit product containing fruit-based sweeteners as “Just Fruit.”
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FTC Complaints and Class Actions Send Warning to Consumer Product Manufacturers and Retailers: Double-Check Your Product Warranties
In the past year, the FTC has promoted consumers’ so-called “right to repair.” In particular, the FTC has focused on the “Anti-Tying Rule” of the Magnuson-Moss Warranty Act (the “MMWA”), which limits manufacturers’ ability to steer consumers to manufacturer-affiliated repair shops. Plaintiffs’ firms have taken notice, filing a spate of class actions based on purported violations of the Anti-Tying Rule. These same firms have also filed a spate of consumer class actions against retailers alleging violations of the MMWA’s “Pre-Sale Availability Rule.” Manufacturers and retailers should confirm they are complying with the MMWA and state law.
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Is a Wave of PFAS Consumer Class Actions on the Horizon?
Two putative class actions recently filed in the Northern District of California preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances. Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false.
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Ninth Circuit Clears the Way for Surcharges on Credit Card Payments in California
On January 3, 2018, the Ninth Circuit found unconstitutional a California law barring retailers from imposing surcharges on customers using credit cards. The ruling has important implications for retailers operating in California and potentially for retailers operating in several other states with similar bans on credit card surcharges.
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Supreme Court Again Tightens Jurisdictional Requirements for Claims Against Out-of-State Defendants
On June 19, 2017, the U.S. Supreme Court announced important constitutional limitations on state courts’ ability to exercise specific jurisdiction over nonresidents’ claims against out-of-state defendants. The Court’s nearly unanimous decision in Bristol-Myers v. Superior Court has potentially far-reaching implications for companies facing claims brought by nonresident and resident plaintiffs in states in which those companies are neither incorporated nor maintain their principal place of business.
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U.S. Supreme Court to Decide Enforceability of Class Action Waivers in Employee Arbitration Agreements
The United States Supreme Court has granted certiorari in a set of cases in order to determine whether class action waivers in employees’ arbitration agreements are unenforceable, which is the interpretation of the National Labor Relations Board.
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Ninth Circuit Widens Circuit Split on Rule 23’s Ascertainability Requirement
On January 3, 2017, a Ninth Circuit 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.
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ATRA Releases Annual “Judicial Hellholes” Report
The American Tort Reform Association recently released the 2016–2017 edition of its “Judicial Hellholes” report. This annual report identifies venues it deems least favorable for civil defendants based on recent decisions and verdicts, as well as state laws and policies.
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