Class Action

The following decisions provide useful guidance for crafting product labeling that is resilient to legal challenges brought under California’s consumer protection laws.

Landlords and property managers are increasingly adding arbitration clauses with class action waivers to their residential leases. These lease provisions can protect landlords from the significant time and costs associated with litigating claims brought by residents, including potential class claims that present high exposure risk for multifamily owners and managers. But the enforceability of these types of provisions remains an open question in many states. 

In a win for Defendant IQVIA, Inc., accused of allegedly sending faxes in violation of the Telephone Consumer Protection Act (TCPA), the United States District Court for the Eastern District of Pennsylvania denied Plaintiff Brian J. Lyngaas D.D.S.’s (Lyngaas) motion for class certification, agreeing with IQVIA that the class did not cross the Third Circuit’s threshold ascertainability requirement.

Online retailers routinely include arbitration clauses in the terms of service for their website, seeking to send any consumer claims to arbitration and to eliminate a consumer’s right to file a class action lawsuit. 

In a significant August 2022 ruling, the California Court of Appeal narrowed the reach of Title III of the Americans with Disabilities Act (ADA) and the Unruh Civil Rights Act (Unruh) as they apply to online-only businesses. The Appeals Court held in Martinez v. Cot’n Wash Inc. that the websites of online-only businesses are not places of public accommodation within the meaning of the ADA or with regard to Unruh.  This decision is a welcome relief for small and medium-sized businesses throughout the country that have been frequent targets of demand letters and lawsuits from California plaintiffs.

As discussed in an earlier post, colleges and universities are facing a wave of class action lawsuits seeking refunds of tuition, fees, and room and board expenses after schools closed their campus in the spring of 2020 in response to COVID-19.

Across the United States, students have brought over 100 class action lawsuits against public and private colleges and universities seeking refunds of tuition, fees, and room and board expenses after schools closed their physical facilities, including their classrooms and residence halls, in response to the COVID-19 pandemic.

After the U.S. Court of Appeals for the District of Columbia released its highly anticipated decision in ACA International v. Federal Communications Commission, courts have been addressing issues raised in that case. We previously summarized the opinion — which raises four issues, one of which is what constitutes an Automatic Telephone Dialing System (“ATDS”).

The Federal Communications Commission (“FCC” or “Commission”) is busy evaluating scores of comments and reply comments it received in several ongoing TCPA proceedings in the past month.

Our previous post discussed the decision in Marshall v. CBE Group, Inc., which completely rejected the FCC’s broad interpretation of an ATDS and found in favor of the defendant. Since then, another district court in the Ninth Circuit has followed suit, but three others in the Eleventh Circuit have concluded that the FCC’s 2003 Order survives ACA Int’l. It could behoove some TCPA defendants to seek stays while this circuit split is sorted out or until after the FCC clarifies its position on the ATDS issue following ACA Int’l.

The Federal Communications Commission (“FCC”) is reconsidering several issues central to TCPA liability, including what equipment constitutes an automatic telephone dialing system (“ATDS”) and who the “called party” is when a wireless number has been reassigned.

The Federal Communications Commission (“FCC”) is reconsidering several issues central to TCPA liability, including what equipment constitutes an automatic telephone dialing system ((“ATDS”) and who the “called party” is when a wireless number has been reassigned.

The North American Numbering Council (NANC), a federal advisory committee established by the FCC, delivered a call authentication report to the FCC on May 3. The report was developed by the Call Authentication Trust Anchor Working Group (CATA WG) and approved by NANC on April 27. It “details a framework for call authentication that can more quickly be established than various alternatives, while obtaining the broadest participation of industry.”

Every month, robocalls make up the majority of Do Not Call registry complaints at the Federal Trade Commission (FTC). The FCC estimated that in March 2018 approximately 3 billion robocalls were placed. In an effort to combat these illegal robocalls, the Senate Commerce Committee and the House Energy & Commerce Committee each held a hearing regarding these illegal robocalls and asked witnesses for ideas on how to combat this rampant problem.

Comments on the FCC’s Second Further Notice of Proposed Rulemaking (FNPRM) are due on June 7, and replies are due by July 9. The second FNPRM was adopted at the March Commission Meeting and seeks input on the adoption of a reassigned numbers database that businesses could check to avoid making unwanted calls to a new subscriber whose number was previously assigned to a consumer who had consented to receiving their calls.

On May 3, the Peer-to-Peer Alliance (P2P Alliance) filed a Petition for Clarification asking the FCC to clarify that P2P text messages to mobile numbers are not subject to TCPA restrictions. It explained that P2P messaging is often used by universities, nonprofits, businesses, and political organizations to communicate with individuals with whom they already have a relationship.

On April 23, the FCC and FTC hosted a joint expo aimed at stopping illegal robocalls through technological solutions. The expo showcased innovative technologies, devices, and applications that minimize or eliminate the number of illegal robocalls consumers receive. The expo was held one month after the FCC and FTC’s Joint Policy Forum on fighting illegal robocalls, and in between the Senate Commerce and House Energy & Commerce Committee hearings on the same topic.

As we wrote in a previous post, on March 16, 2018 the US Court of Appeals for the District of Columbia Circuit released its highly anticipated decision in ACA International v. Federal Communications Commission. Among other things, the DC Circuit set aside the Commission’s explanation of which devices qualified as Automatic Telephone Dialing Systems under the Telephone Consumer Protection Act. Though the decision has been out for less than two months, courts in the Ninth Circuit have taken notice.

On March 22, 2018, the Federal Communications Commission (FCC) adopted a Second Further Notice of Proposed Rulemaking (FNPRM) proposing the creation of a reassigned numbers database. Under the proposed rules, the FCC will ensure that a database is available to provide callers with the timely and comprehensive information they need to avoid calling reassigned numbers. The FNPRM also seeks comment on the kind of information that callers need from such a database, the best way for service providers to report this information, and whether the FCC should adopt a safe harbor from TCPA liability for callers who check the database.

Roughly around this time last year, the U.S. Supreme Court issued its ruling in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), wherein the Court rejected the California Supreme Court’s finding of specific jurisdiction over mass tort claims filed by nonresidents.