In February 2023, the Ninth Circuit Court of Appeals held in a 2–1 decision that Xerox waived “its right to compel arbitration … against unnamed” class members in Hill v. Xerox Business Services, LLC. Key Takeaway Hill v. Xerox Business Services, LLC shows how the Ninth Circuit’s waiver test, revised after a 2022 SCOTUS case, could force defendants in potentially arbitrable cases to instead become further involved in class action litigation. In February 2023, the Ninth Circuit Court of Appeals held in a 2–1 decision that Xerox waived “its right to compel arbitration … against unnamed”[1 ..read more

The Supreme Court of California’s recent CMA v. Aetna ruling provides a blueprint of the facts needed for organizations to allege standing under section 17204 of the Unfair Competition Law. Key Takeaway: The Supreme Court of California’s recent CMA v. Aetna ruling provides a blueprint of the facts needed for organizations to allege standing under section 17204 of the UCL.  In July 2023, the Supreme Court of California held that diversion of resources from an organization, as a result of the organization’s efforts to combat a particular policy, is enough to create standing for the organiza ..read more

Defendants have found recent success with complete dismissal by the courts, or significantly narrowing, of consumer class action lawsuits alleging that products' advertised protein content is false or misleading. Key Takeaway: Defendants have found recent success having courts dismiss or significantly narrow consumer class action lawsuits alleging that products’ advertised protein content is false or misleading.  A slew of putative class action lawsuits, primarily filed in the Northern District of California, allege that the makers of protein bars and shakes, breakfast foods, and snack pr ..read more

In a recent Ninth Circuit decision, the court affirmed that the key factor in determining whether an attorneys’ fee award in a Rule 23 class action settlement is reasonable is the benefit the class received under the settlement. In a recent Ninth Circuit decision, the court affirmed that the key factor in determining whether an attorneys’ fee award in a Rule 23 class action settlement is reasonable is the benefit the class received under the settlement. Any attorneys’ fee award must be proportional to the actual benefit realized by class members regardless of the amount of hours and resources ..read more

The Ninth Circuit Court of Appeals held in two companion cases that courts properly can consider the wording on the back labels of products to clarify any ambiguous claims on the front labels. Key Takeaway: The Ninth Circuit Court of Appeals held in two companion cases that courts properly can consider the wording on the back labels of products to clarify any ambiguous claims on the front labels. On June 9, 2023, the Ninth Circuit Court of Appeals affirmed the dismissal of California consumer protection claims against The Proctor & Gamble Company (P&G) in McGinity v. Procter & ..read more

Last week, in Cothron v. White Castle System, Inc., the Illinois Supreme Court confirmed that each violation of BIPA constitutes a distinct and separately actionable violation of the statute.  Last week, in Cothron v. White Castle System, Inc., the Illinois Supreme Court confirmed that each violation of BIPA constitutes a distinct and separately actionable violation of the statute.  This means that many plaintiffs will have a significantly longer time in which to initiate litigation (for example, an employee who clocks in daily using a fingerprint scan resets the statute of limitatio ..read more

Beginning on January 1, 2023, the provisions of the California Privacy Rights Act (“CPRA”) come into effect, thereby amending and expanding portions of the California Consumer Privacy Act (“CCPA”). KEY TAKEAWAYS: The CPRA amendments to the CCPA will place additional requirements on employers to respond to employee inquiries about the collection and processing of their personal information and provide employees with an enhanced notice of how employee personal information is handled. The CPRA amendments to the CCPA’s private cause of action also increase employer exposure, primarily by expandin ..read more

A Virginia federal judge tossed a class action lawsuit on October 17 alleging Gerber Products Company deceptively led consumers to believe their baby food products were “healthy” and “safe” despite allegedly containing unsafe levels of toxic metals. Key Takeaways: A speculative risk of future harm is not enough to establish Article III standing Plaintiffs arguing price premium and benefit of the bargain theories must plead a harm to themselves, not others, and they must plead more than the conclusory allegation that they overpaid A Virginia federal judge tossed a class action lawsuit on Octo ..read more

Class action lawsuit against Costco based on “unreasonable or fanciful interpretations of labels” warrants dismissal. Key Takeaway: Class action lawsuit against Costco based on “unreasonable or fanciful interpretations of labels” warrants dismissal.  Consumers may have a lot of choices while grocery shopping, but according to a district court in Illinois, the reasonable consumer knows the difference between “flavor” and “ingredient.”   In September 2021, Plaintiff Timothy Akers filed a class action complaint against Costco Wholesale Corporation, alleging that Costco’s Kirkland S ..read more

The nature of a class action requires defendants to think beyond the story or situation posed by one single plaintiff. When facing a lawsuit that potentially challenges a large-scale business practice or procedure, counsel often must focus on big-picture systemic issues that may affect hundreds or thousands of people. Yet sometimes, the deposition of a single person—the proposed class representative, commonly referred to as the “named plaintiff”—can elicit facts that tear the entire class action apart. The nature of a class action requires defendants to think beyond the story or situation pose ..read more