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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
California overhauled its Rules of Professional Conduct effective November 1, 2018. This post highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixty-nine new and revised rules.… Continue Reading
A recent California Court of Appeal decision highlights the narrow construction given to the commercial speech exemption of California’s anti-SLAPP statute, and the burden on plaintiffs opposing an anti-SLAPP motion on the basis of the exemption.… Continue Reading
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
Should Titanic’s Box Office release or the debut of Harry Potter already be described as events from the ancient past? It would hardly seem so. But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements … Continue Reading
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
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
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 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
When a contract awards attorneys’ fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney’s fees to the prevailing party, regardless of the party awarded fees in the contract, and b) requiring the court to fix the attorney’s fees as an element of the costs of … Continue Reading
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