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 and appearance of the hyperlinks and the “I agree” button – carry tremendous legal significance. Those seemingly small design details could make the difference between a dispute being resolved in arbitration, or in litigation.
Earlier this month, the Second Circuit ruled that Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) when it sent automated flu shot text message reminders to patients. The three-judge panel in Latner v. Mount Sinai Health Systems, Inc. affirmed the dismissal of the putative class action, finding that the lead plaintiff, Daniel Latner, had consented to receiving the messages. As companies in the healthcare industry and beyond increasingly rely on automated communication systems, this case highlights the consumer privacy implications of using mass text messages to contact patients and consumers.
On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).
Robins had brought a putative class action against Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information. Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person. According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress.
On August 1, 2017, plaintiff Raymond Alvandi filed a putative class action in California federal court against Annie’s, Inc., seeking damages and injunctive and declaratory relief. Alvandi alleges that Annie’s misrepresented the strawberry content and nutritional and health qualities of its “Summer Strawberry” Organic Bunny Fruit Snacks. Alvandi seeks to represent a nationwide class of all consumers of Annie’s Strawberry Fruit Snacks in the last six years, as well as a subclass of those who purchased the fruit snacks in California. He claims that the court has jurisdiction pursuant to the Class Action Fairness Act, alleging that there are at least several thousand putative class members and that the amount in controversy exceeds $5,000,000. Alvandi alleges that over the last six years, Annie’s marketing practices have been deceptive, trying to convince consumers that its Strawberry Fruit Snacks actually contain strawberries and are a nutritious and healthful option. Instead, the only fruit-related byproduct in the Strawberry Fruit Snacks is “Pear Juice From Concentrate,” which is essentially a neutral tasting form of sugar.
On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The plaintiff claimed that he only bought the shoes because he believed he was receiving a significant value and that Saks’s $145 market price was false and misleading.
Defendants in a putative class action lawsuit alleging wage fixing antitrust claims no longer need to count sheep to rest easily. A district court judge in Colorado recently denied plaintiffs’ request for leave to amend, effectively dismissing claims brought by a group of shepherds working under the H-2A Visa Program, which covers agricultural guest workers. In Llacua et al. v. Western Range Association et al. report and recommendation adopted, plaintiffs alleged that two trade associations representing sheep ranchers, and some of their members, conspired to suppress the wages paid to shepherds in violation of the Sherman Act. The Court adopted the Magistrate Judge’s ruling that plaintiffs failed to plausibly allege a conspiracy and failed to allege facts sufficient to warrant granting leave to amend their Complaint a third time, describing the Magistrate Judge’s opinion as a “masterful and cogent” analysis of the substantive allegations. Because this is one of the first judicial opinions following the DOJ and FTC’s recent announcement of an initiative to prosecute wage fixing claims, the Magistrate’s report and recommendation provides important guidance for associations and their members facing similar claims.
A new putative consumer class action claiming damages in excess of $5,000,000 was filed earlier this month in the Northern District of California against Goya Foods, Inc. (“Goya”). The plaintiff, a purchaser of Goya octopus products from the website Amazon.com, alleges that Goya tricked consumers into purchasing its products by labeling them as octopus when in reality, the products contained jumbo squid. The plaintiff alleges that independent DNA testing showed that Goya’s products were in fact jumbo squid, which is significantly cheaper and of lower quality than octopus.
On May 16, 2016, the Supreme Court decided Spokeo, Inc. v. Robins, ruling that a plaintiff must sufficiently allege an injury that is both concrete and particularized in order to have Article III standing, and further that a “bare procedural violation” of a plaintiff’s statutory right may not be sufficiently “concrete” under this analysis. This ruling has the potential to affect class actions generally, but may prove especially influential in privacy and data security class actions.