Former Price Promotions, Current Legal Risk

Former price promotions, you say? Plus ça change, plus c’est la même chose. This isn’t just a quote from Jean-Baptiste Alphonse Karr or a line from Circumstances by Rush. It’s also a fitting description of the risks associated with California’s thorny and potentially unconstitutional Business & Professions Code § 17501. The combination of this statute and avaricious lawyers is...

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David Bertoni to Moderate Panel on Ethics and Wiretapping Class Actions

On May 6, 2024, David W. Bertoni will moderate a panel on The Ethics of Wiretapping and Data Privacy Class Actions at the 2024 Class Action Money & Ethics Conference in New York. Bertoni and a panel of leading practitioners will explore the legal, ethical, and technological dimensions of wiretapping claims in the internet age....

Web Arbitration Clauses: Federal Court Upholds “Terms of Use”

On June 7, 2019, the United States District Court for the Northern District of Illinois ruled in favor of retailer Wayfair LLC, and its parent company, Wayfair Inc., in a decision that both (1) upholds a web arbitration agreement and (2) provides useful guidance in presenting “terms of use” to website shoppers. What can we...

Autodialers: Ninth Circuit (Again) Opens Class Action Floodgates

Businesses who market by text or telemarketing beware.  On September 20, 2018, the Ninth Circuit adopted the most radical and expansive definition of what constitute autodialers for purposes of liability in the Telephone Consumer Protection Act (“TCPA”).  This startling interpretation of the TCPA, which could make even smartphones autodialers, is a potent reminder that, in...

Class Actions: What Might Be On Your Horizon as a Direct Marketer?

Companies who have faced class action lawsuits, even (and maybe especially) frivolous ones, won’t soon forget the experience.  Just getting a case dismissed, or fending off class certification in the first place, can be extraordinarily costly and stressful.   The amounts at stake are often huge–with potential downsides of “per violation” penalties in the four...

Spokeo Speaks — Again

In Robins v. Spokeo, Inc., the U.S. Court of Appeals for Ninth Circuit has again allowed a case to go forward on a gossamer thread of alleged “harm,” despite the U.S. Supreme Court’s admonition that concrete harm must alleged.

Reference Prices: Are You at Risk?

Reference prices advise consumers that they are getting a bargain. The California Court of Appeal, however, just upheld a $6.8 million penalty on the grounds that a company’s use of list prices and comparison prices constituted a deceptive trade practice.  Amazon is also apparently under investigation for its use of list prices.  If past is prologue, we...

Former Prices: A Class Action Trap

Do you promote “former prices” to underscore the bargains you’re offering?  If so, you should be on high alert.  Increasingly, lawyers are targeting these kinds of promotions for sweeping class action lawsuits.

Arbitration Redux: Supreme Court Speaks Again

Just seven days after my last blog post on arbitration clauses, the United States Supreme Court issued its decision in DIRECTV, Inc. v. Imburgia finding, yet again, that a class action waiver provision was enforceable against a consumer.  Although the decision turned on a rather nuanced question of contract interpretation, it serves as a powerful reminder of...