Defending litigation is ultimately an exercise in risk management. So how do companies manage to protect themselves? In the context of a company preparing for sale, litigation can often delay or in some cases halt the transaction.  There are a variety of ways to address litigation such as a large escrow holdback or a purchase price reduction.  However, these solutions may not be palatable to the seller. Another option is Litigation Buyout Insurance (“LBO Insurance”). But as everyone wants to know, how does it work? Risk Settlements recently had a webinar with Celesq on LBO Insurance ..read more

The Ninth Circuit’s October 2021 McKinney-Drobnis v. Massage Envy Franchising decision might signal the death knell for voucher-based class action settlements that are not considered “coupon” settlements under CAFA. If this settlement cannot survive, it’s not clear what voucher-based settlement could. The Back Story In 2013, Massage Envy Franchising (“MEF”) began unilaterally increasing customers’ membership dues—first, $0.99 per month, then $10—without authorization. Years later, a class action was filed, followed by a nationwide class settlement, which permitted class members to submit claim ..read more

The Ninth Circuit’s June 2021 decision in Briseño v. Henderson, which reversed and remanded a claims-made settlement involving the ConAgra-owned Wesson Oil’s use of a “100% natural” label, attracted attention for its colorful language, including pop culture references to Star Wars, Matthew McConaughey, and The Bachelor (among others).  But its import for the class action bar had more to do with its holding: that district courts must apply Bluetooth’s heightened scrutiny to post-class certification settlements in assessing whether the division of funds between class members and their couns ..read more

In July 2021, Risk Settlements co-presented a PLI webinar on how litigation buyout insurance (LBO insurance) can help keep companies “deal ready.” Following up on that presentation, we thought a brief article detailing the nuts and bolts of litigation buyout insurance might help those interested in pursuing such a policy to determine if it is right for them. Below, we have outlined some of the most common questions we receive about the logistics behind LBO insurance and our thoughts on each. What Is LBO Insurance? LBO insurance is an insurance product through which the insurer agrees ..read more

by Ross Weiner I wrote a June 2021 article in Law360 describing how competitor advertising disputes brought to the National Adverting Division (NAD) are often a precursor to civil litigation.  But a recent decision out of the Northern District of California confirms another worry for NAD participants: what happens in the NAD will not necessarily stay there. Civil Litigation Concerning Woolite Follows an NAD Proceeding In Prescott v. Reckitt Benckiser LLC, six consumers filed a 2020 class action against Reckitt Benckiser, the manufacturer of Woolite Laundry Detergent, alleging that Woolite ..read more

On June 1, 2021, the 11th Circuit stymied a certified class’s effort to force an insurance company to cover its insured’s TCPA settlement.  Horn v. Liberty Ins. Underwriters, Inc., 998 F.3d 1289 (11th Cir. 2021).  The court agreed with the district court’s ruling that TCPA claims were excluded from coverage by the policy’s exclusion for “[c]laims … arising out of … an invasion of privacy.”  The underlying class action lawsuit In 2017, Jacob Horn filed a TCPA class action against iCan Benefit Group, LLC for sending unauthorized text messages.  The complaint alleged that iCan ..read more

It has been well documented that the Supreme Court’s June 25, 2021, opinion in TransUnion LLC v. Ramirez further limits the ability of plaintiffs to bring lawsuits in federal court based on technical statutory violations.  Indeed, to establish federal court standing, a plaintiff must have personally suffered “concrete harm.”  Given this new barrier to entry, one of TransUnion’s unintended results could be plaintiffs choosing to file class actions in state court and defendants losing the ability to remove them.  Justice Thomas’ dissent predicts just this.   On What Basis Did ..read more

We are all Lucas Cranor.   In June 2018, Cranor made a purchase at a store called 5 Star, and while there, he gave 5 Star his mobile number.  As a reward for his patronage, 5 Star sent Cranor a series of unsolicited advertising texts, about both a rewards program and a can’t miss sale.  Annoyed to his core, Cranor replied: STOP. This exchange led to legal threats, which ultimately resolved with a pre-suit settlement of $1,000.  But of course, the story did not end there. Months later, 5 Star went back to the well and sent Cranor another unsolicited text promoting a sal ..read more

Sergio Ramirez was trying to buy a car at a Nissan dealership when he was informed that his name matched two names on a list of suspected terrorists and criminals with whom U.S. companies are barred from doing business. TransUnion had provided to the dealership both the credit report and the notification that Ramirez’ name matched names on the list.  When Ramirez first obtained a copy of his TransUnion credit report, it did not show the alert. The alert was included, however, in the second report that TransUnion sent the next day. That version omitted a legally required summary-of-rights ..read more

This article was originally published on Law360.com The National Advertising Division (the advertising industry’s voluntary self-regulator) is as busy as ever this year. Recently, the NAD recommended Spectrum Mobile discontinue claims of “fastest overall speeds” in response to a challenge from AT&T. It also recently directed Zarbee’s to qualify its use of the term “natural” on certain products.  Be warned: the companies involved and the advertising industry are hardly the only ones monitoring such disputes between competitors about advertising claims. When a company contends that a co ..read more