2019
Web Arbitration Clauses: Federal Court Upholds “Terms of Use”
David Bertoni / 0 CommentsOn 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...
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2018
Class Arbitration and Other Risks: Are You Protected?
David Bertoni / 0 CommentsMore companies, large and small, are including arbitration clauses in their consumer agreements, including clauses that seek to bar class arbitration. Such clauses may be easier said than done, and there remain traps for the unwary.
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2018
Autodialers: Ninth Circuit (Again) Opens Class Action Floodgates
David Bertoni / 0 CommentsBusinesses 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...
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2018
Toxics In Packaging: Are You Protected?
David Bertoni / 0 CommentsAs many direct marketers wrestle with the new Proposition 65 regulations (set to go into effect on August 30, 2018), there are other state laws relating to product safety as to which they should be aware. We address here the nineteen (19) states that have enacted so-called “toxics in packaging” laws that regulate the presence...
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2017
Proposition 65: Big Changes for Direct Marketers
David Bertoni / 0 CommentsStarting next summer, you’ll be required put Proposition 65 product safety warnings in your catalogs and on your websites near every affected product.
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2017
Class Actions: What Might Be On Your Horizon as a Direct Marketer?
David Bertoni / 0 CommentsCompanies 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...
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2017
Spokeo Speaks — Again
David Bertoni / 0 CommentsIn 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.
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2017
Reference Prices: Are You at Risk?
David Bertoni / 0 CommentsReference 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...
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2014
Challenged Settlement Highlights Risk of Consumer Class Actions
Nathaniel Bessey / 0 CommentsThe Seventh Circuit Court of Appeals recently heard oral argument on a challenge to a proposed class settlement in the case of Michael Rosman v. Radio Shack Corporation. The lawsuit alleged that Radio Shack had violated the Fair and Accurate Credit Transactions Act (“FACT”), 15 U.S.C. §1681c(g), by printing the expiration date of the customer’s...
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