Amazon Drivers Avoid Arbitration Claiming Non-delivery of Updated TOS

By Tara Brailey on May 24, 2023 Posted in Arbitration, Litigation

The Ninth Circuit recently issued an opinion that could shape how companies draft and revise two oft-encountered types of contracts: terms of service agreements (“TOS”) and arbitration clauses.

In Jackson v. Amazon.com, Inc., the Ninth Circuit affirmed the district court’s order denying Amazon.com, Inc.’s motion to compel arbitration in a case brought by a proposed class of “Amazon Flex” drivers. Amazon Flex is a delivery program run through a smartphone app that Amazon uses to engage individuals to make Amazon deliveries in their personal cars.

Tags: Arbitration, Arbitration Clause, arbitration provisions, Jackson v. Amazon.com, Litigation, Privacy, Privacy Law, privacy litigation, terms of service agreements (“TOS”), US Court of Appeals for the Ninth Circuit

Banks as Gatekeepers Against Fraud: Customer Protection and the So-Called Quincecare Duty in the UK

By Dorothy Murray, Julia Bihary and Hena M. Vora on May 23, 2023 Posted in Commercial Litigation, Litigation

Who can be held responsible when a rogue actor directs payment from a company’s bank account? Unless discovered quickly, stolen funds are usually quickly spirited away from easy recovery. Victims of fraud therefore look for other sources of compensation, including the bank itself who executed the instruction. In England, when banks and financial institutions have reasonable grounds to believe that a payment instruction is an attempt to misappropriate a customer’s funds, they owe a duty of care to that customer to refrain from making or executing the order and make necessary inquiries before proceeding.

Tags: anti-money laundering, authorized push payment (APP), Bank Secrecy Act (BSA), Barclays Bank plc v Quincecare Ltd., commercial litigation, Financial Crimes Enforcement Network (FinCEN), financial institutions, fraud, misappropriation, Philipp v Barclays, PT Asuransi Tugu Pratama Indonesia TBK v Citibank N.A, regulatory compliance, Singularis Holdings v Daiwa Capital, Singularis Holdings v Daiwa Capital Markets, UK Finance, UK supreme court, US Department of Treasury

Antitrust and Section 230: Where Are We After Gonzalez v. Google?

By Colin Kass, David Munkittrick, Kelly Landers Hawthorne and Henrique Carneiro on May 19, 2023 Posted in Antitrust, Federal Rules, Litigation, Media and Technology

In an unsigned per curiam opinion yesterday in Gonzalez v. Google, the U.S. Supreme Court vacated the Ninth Circuit’s judgment— which had held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act – and remanded it. But the Court’s opinion entirely skirted a highly-anticipated issue: whether Section 230 does, in fact, shelter as much activity as courts have held to date.

Tags: 47 U.S.C. § 230(c), AI technology, antitrust law, antitrust technology, Artificial Intelligence (AI), communications decency act, federal antitrust law, Gonzalez v. Google, Internet, Ninth Circuit, online platforms, SCOTUS, Section 230, Social Media, Supreme Court, U.S. Supreme Court

For All Intents and Dual-Purposes, SCOTUS Fails to Resolve Circuit Split

By Julia M. Ansanelli on May 8, 2023 Posted in Appellate, Federal Rules, Litigation, Trial Issues

A three-way circuit split has long plagued the realm of attorney-client privilege on how to treat communications that implicate both legal and non-legal concerns (known as “dual-purpose communications”). Namely, if a lawyer communicates with their client, simultaneously providing legal advice and business advice, is the entire communication protected by the attorney-client privilege? How substantial must the legal advice be for the communication to be privileged? The Supreme Court recently had the opportunity to resolve this split, but in a strange turn of events, dismissed the previously granted writ of certiorari as improvidently granted two weeks after hearing oral argument. Before delving into the oral argument and subsequent dismissal by the Supreme Court, it is worth reviewing a brief history of the existing circuit split.

Tags: “dual-purpose” documents, “primary purpose test”, “significant purpose test”, Attorney-Client Privilege, dual-purpose communications, Privilege, SCOTUS, Seventh Circuit, U.S. Supreme Court, U.S. v. Frederick

Seventh Circuit Rules: Just Saying it Doesn’t Make it So, for Class Certification

By Om V. Alladi on May 3, 2023 Posted in Appellate, Class Action, Litigation

Defendants on the losing side of a class certification order were recently provided with a roadmap of how to challenge a district court’s analysis on appeal.

On April 12, 2023, the United States Court of Appeals for the Seventh Circuit vacated and remanded a district court’s class certification order because it failed to “rigorously analyze” the prerequisites to certify a class under Federal Rule of Civil Procedure 23. The appellate court held that the district court abused its discretion by failing to “go beyond the pleadings” – in other words, the plaintiffs’ allegations – in its analysis.

Tags: appellate, Class Action, class action lawsuit, Class Certification, coronavirus, Court of Appeals, covid-19, Federal Rule of Civil Procedure 23, higher education, Seventh Circuit

Amazon Acts Against DMCA Abuse

By David Munkittrick and Peter Cramer on April 26, 2023 Posted in Copyright, Litigation

Competition between Amazon’s third-party merchants is notoriously fierce. The online retail giant often finds itself playing the role of referee, banning what it considers unfair business practices (such as offering free products in exchange for perfect reviews, or targeting competitors with so-called “review bombing”). Last month, in the latest round of this push and pull, the online retail giant blew the whistle on several merchants who Amazon claims crossed a red line and may now have to face litigation in federal court.

Tags: copyright infringement, Digital Millennium Copyright Act, DMCA, Intellectual Property, online marketplace, online service providers (OSP), technology, third party vendor, trademark infringement

Extra, Extra, Extraterritorial, Read All About It: Supreme Court Considers Lanham Act’s Reach

By Isaiah D. Anderson on April 20, 2023 Posted in Commercial Litigation, Extraterritorial Discovery, False Advertising, Trademark

Last month, the Supreme Court heard oral argument on Abitron Austria GmbH et al. v. Hetronic International, Inc. and considered, for the first time since 1952, the extraterritorial reach of the Lanham Act. This case presents the opportunity for the Court to establish a uniform test for the Lanham Act’s extraterritorial reach when seeking remedies in U.S. courts and to provide clarity for U.S. companies looking to protect their marks and reputation around the world.

Tags: Abitron Austria GmbH et al. v. Hetronic International, commercial litigation, federal trademark law, Intellectual Property, Lanham Act, SCOTUS, tenth circuit, trademark infringement, trademark law, U.S. Supreme Court, U.S. trademark owners

Proskauer’s perspective on developments and trends in commercial litigation.