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

Category Archives: California Rules

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Beware of the Fine Print: Website Design Choices that Carry Legal Significance

Website owners who seek to bind visitors to the terms of an arbitration agreement must make those terms “reasonably conspicuous” under the law, and website visitors must “manifest unambiguous assent” to those terms.  That means that the smallest of details – the font and color of the text, the color of the page, the location … Continue Reading

Using Demonstrative Exhibits as Admissible Evidence Under California Law

During trial, lawyers make many strategic decisions to try to appeal to a jury.  For example, they consider not only the substance of the evidence they present, but also the emotional impact of that evidence.  But the impact of a witness’ testimony can be blunted if your jury is not following the testimony, so the … Continue Reading

A Comedy of Errors Sinks a Local Government’s Price Gouging Case

In a case of mistaken identity and a web of conflicting testimony, a Fresno local business successfully appealed a price gouging fine.  The saga between the store and the City of Fresno offers insights in the importance of maintaining proper business records to defend potential price gouging allegations. On April 8, 2021, an Administrative Hearing … Continue Reading

Circuit Split Deepens as Eleventh Circuit Holds Administrative Feasibility is Not a Requirement for Class Certification

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of administrative feasibility as a prerequisite to certification under Federal Rule of Civil Procedure 23 has deepened a circuit split on the issue.… Continue Reading

Rental Properties Not Exempt From Price Gouging Laws

While PPE, toilet paper, and groceries make price gouging headlines, consumer goods are not the only goods covered by price gouging laws in many states. Less publicized, but equally important, lodging or housing may be found on lists of products covered by many price gouging statutes. A recent case in California offers a glimpse. In … Continue Reading

California Price Gouging Update: Class Action Filed Against Restaurant Group

On November 24, 2020, a class action price gouging claim was filed against a California based operator of casual fine dining restaurants. The class action lawsuit against Hillstone Restaurant Group alleges price gouging in violation of California Penal Code §396. According to the lawsuit, “Hillstone engaged in unfair and unlawful business practices by increasing its … Continue Reading

California Strengthens Penal Code Section 396, Codifies Price Gouging Executive Order

Since the beginning of the pandemic, many governors have issued executive orders targeted at combating price gouging. However, one California state senator, Senator Thomas Umberg, proposed going a step further. In April 2020, Senator Umberg introduced Senate Bill 1196, which would codify many of the provisions in California Governor Gavin Newsom’s Executive Order N-44-20. On … Continue Reading

What’s My Price? Price Gouging Enforcement, Bargaining Power and Stealth Price Increases

Businesses may be wondering whether there is increased risk of price gouging liability when they impose higher penalty terms, ask for higher up-front payments, raise rates, or otherwise seek terms that may be more burdensome. Sellers and service provides should consider the risk of being held liable for non-price terms that result in higher customer … Continue Reading

California Attorney General Releases Final Proposed Regulations

On June 1, 2020, the California Attorney General’s office released the third and final set of CCPA proposed regulations (available here). In the link below, we provide information about the final proposed regulations and enforcement actions. The CCPA, or the California Consumer Privacy Act of 2018, gives California consumers certain rights to learn about and … Continue Reading

California’s Crackdown on the Price Gouging Gold Rush

In early March, California Attorney General Xavier Becerra issued a consumer alert on price gouging. Two weeks later, police in San Diego arrested eight people for price gouging. The same week, investigations by Sacramento authorities prompted new warnings from local authorities. Since then, both the Governor and Attorney General have indicated price gouging will remain … Continue Reading

Five Key Takeaways from the New Emergency Judicial Procedures in the Eastern District of California

Federal court judges in California are facing a crisis caused by expanding caseloads coupled with increasing vacancies in judicial seats that remain unfilled. United States District Court Judge Dale A. Drozd of the Eastern District of California recently took matters into his own hands. After three other judges in the Eastern District assumed Senior status … Continue Reading

CCP 2031.280(a): New Document Production Obligations in California Civil Litigation

Effective as of January 1, 2020, all civil litigants in California will have additional discovery burdens. The California Code of Civil Procedure now requires “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” … Continue Reading

Data Breaches and Damages: Consumer Action Under the CCPA

With less than one month to go before the California Consumer Privacy Act of 2018’s (“CCPA”) effective date of January 1, 2020, businesses should be aware of the potential litigation that awaits them. The CCPA is a California privacy law that gives California consumers the rights to know about and control the personal information that … Continue Reading

CCPA: Consumers and the Right to Sue

The California Consumer Privacy Act of 2018 (“CCPA”) is a California privacy law that gives consumers, defined as natural persons residing in California, affirmative rights with respect to their data privacy.  Namely, the CCPA endows consumers with certain rights to access information about and control what a business does with their personal information.  (For an … Continue Reading

Will Settling Class Actions Get More Difficult in 2019?

Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class … Continue Reading

To Be or Not To Be: Can Attorney’s Fees Be Recovered on a Void Contract

Trying to collect attorney’s fees based on a void contract? Surprisingly, you can, according to a recent California Court of Appeal case. In California-American Water Co. v. Marina Coast Water Dist., the California Court of Appeal held that prevailing parties were entitled to recover attorney’s fees and costs based on a contract, even though the … Continue Reading

When It Comes to Pretrial Publicity, Should Lawyers Let Their Clients Do the Talking?

When it overturned a federal court’s order suppressing a litigant’s right to publicly gripe about a pending suit late last month, the Ninth Circuit took the opportunity to remind those of us in the legal profession that we are held to a different, higher standard when it comes to public comment on litigation. In an … Continue Reading

No TKO: California Judge Refuses to Disqualify Counsel from Patent Litigation

Last week, a federal judge in California denied the plaintiff’s motions to disqualify the defendant’s counsel, finding that the firm’s former representation of the plaintiff was not sufficiently recent, substantial, or substantively related to the firm’s current representation of the defendant to warrant disqualification. The plaintiff, IPS Group, Inc., brought two related lawsuits against Duncan … Continue Reading

Consider Whether the Promise of a Bird in the Hand is Better Than Two in the Bush

When drafting settlement agreements, most lawyers give due attention to the scope of any release clause. And for good reason: for defendants, the extent to which the release protects against future litigation is critical, and for plaintiffs, the extent to which it preserves future claims may be equally critical. But lawyers – and particularly those … Continue Reading

California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC  that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel … Continue Reading
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