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Delayed Discovery Cannot Cure Defective Pre-Litigation Investigations for Proposition 65 Suits

A California appellate court recently determined that a consumer group’s failure to conduct required pre-litigation investigations of several restaurant chains’ alleged Proposition 65 violations warranted dismissal of the...more

Thank You Commissioner O'Rielly - FCC Acknowledgment of TCPA Confusion is Long Overdue

But One Vote is Not Enough for Action, Nor Does Action Assure a Favorable Outcome - FCC Commissioner Michael O’Rielly recently blogged that “It is Time to Provide Clarity” on issues swirling around application of the...more

Pom Wonderful Brings Food Labeling Dispute To The U.S. Supreme Court: When Are Claims Based On Allegedly Improper Product Labeling...

A long-standing false advertising dispute between beverage companies Pom Wonderful and Coca-Cola has reached the United States Supreme Court and carries far-reaching implications for other food labeling litigation. On January...more

Food Litigation Newsletter - February 2014

In This Issue: - Recent Significant Developments and Rulings ..Smart Balance Milk Labeling Suit Not Preempted ..Mott’s “No Sugar Added” Labeling Lawsuit Narrowed ..Court Preliminarily Approves Trader...more

Calling 7th Circuit: Robocalls And Federal Preemption

In a recent decision, the U.S. Court of Appeals for the Seventh Circuit held that the federal Telephone Consumer Protection Act did not preempt an Indiana state law with more restrictive prohibitions on autodialed calls —...more

Supreme Court Grants Certiorari in POM’s Attack on FDCA/Lanham Act Preemption

On Friday, the Supreme Court granted the certiorari petition of Pom Wonderful in its Lanham Act false advertising case against Coca-Cola. Pom Wonderful LLC v. Coca Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert granted, ___...more

TCPA Connect -- Jan 13, 2014

Good Faith Belief in a Consumer’s Consent Found to be Valid Defense to TCPA Claim - Despite a material question about whether the defendant had express consent to contact the plaintiff, a California federal court judge...more

California Appellate Court Holds That Federal Law Preempts Unfair Competition Law Claims Tied to Organic Label

In a case of first impression in the state courts, a California appellate court delivered an early Christmas present Dec. 23 to beleaguered food and beverage companies facing an avalanche of lawsuits under California’s Unfair...more

Floodgates To New York Telemarketing Class Actions Under The TCPA Are Open, Says Second Circuit

Just in time for the holidays, the Second Circuit’s recent decision in Bank v. Independence Energy Group LLC has dropped a lump of coal in the business community’s stocking. In this case, the “lump of coal” is an open door to...more

CFPB bootstraps purported state law violations into attack on online payday lending companies

The CFPB has broken new ground in an attack in Massachusetts federal court against CashCall, several related companies and their principal. The companies funded, purchased, serviced and collected online payday loans made by a...more

Fifth Circuit Holds State AG Credit Card Add-On Suit Not Subject To Federal Jurisdiction

On December 2, the U.S. Court of Appeals for the Fifth Circuit held that a set of parens patriae suits filed by the Mississippi Attorney General (AG) against credit card issuers is not subject to federal jurisdiction under...more

Seventh Circuit Holds TCPA Does Not Preempt State Law Banning Robocalls

On November 21, the U.S. Court of Appeals for the Seventh Circuit held that the federal Telephone Consumer Protection Act (TCPA) does not preempt an Indiana statute that bans most robocalls without exempting calls that are...more

A House Divided: Federal Judges Take Conflicting Positions on Wiretap Act Claims Against Google in California's Northern District

Last week, the U.S. District Court for the Northern District of California dismissed a class action claim that Google’s modifications to its customer privacy policies and subsequent sharing of customer data across Google...more

7th Circuit Issues Troubling TCPA Non-Preemption Ruling

The U.S. Court of Appeals for the Seventh Circuit held in Patriotic Veterans v. Indiana that the state’s automatic dialing-announcing device (ADAD) statute is not preempted by provisions that govern prerecorded calls and...more

California Courts Rule for and against Arbitration

Two recent Ninth Circuit opinions and a California Supreme Court ruling demonstrate that the debate over the enforceability of consumer arbitration provisions is far from over. With the U.S. Supreme Court weighing whether to...more

Can A State Impose Civil Penalties On A Drug Or Device Company For Using A Federally-Approved Label?

Overview - States have increasingly brought actions under Medicaid fraud or consumer protection statutes seeking civil penalties and restitution from the makers of prescription drugs. Many top-selling drugs have been...more

When the FDCPA and the Bankruptcy Code Conflict: Which Controls?

As most lenders and banking litigators understand, courts construe the language of the Fair Debt Collection Protection Act (FDCPA) very broadly. As we have discussed in previous posts, an initial communication to collect a...more

Infobytes Special Alert: CFPB Issues Mortgage Servicing Rule Amendments And Guidance Addressing Conflicts With Bankruptcy And Debt...

On October 15, 2013, the Consumer Financial Protection Bureau (“CFPB”) issued an interim final rule amending certain provisions of its mortgage servicing rules and making technical changes to other January 2013 mortgage rules...more

Recent Rulings Find Preemption of State Law Claims and Enforce Airline Contracts of Carriage

In the past few months, courts have issued several decisions favorable to the airlines finding preemption of various state law claims and rejecting breach of contract claims. The decisions address a variety of passenger...more

Food Litigation Newsletter - August 5, 2013

In This Issue: - Recent Significant Developments and Rulings ..VitaRain “Natural” Caffeine Claims Against Costco Rules Preempted ..Court Refuses To Certify Most “All Natural” Claims Against Kashi and Bear...more

Dodd-Frank News: July 2013: Dodd-Frank Wall Street Reform And Consumer Protection Act Update

In This Issue: - Recent Cases ..Dodd-Frank Act Amendments to RESPA ..Amendments to Preemption Standards ..Whistleblower Protection ..SEC Final Rule Pursuant to Dodd-Frank Act Vacated ...more

False Advertising Claims Against Tropicana Survive Motion to Dismiss

We have frequently reported on how courts have addressed preemption arguments in the growing number of mislabeling suits that have been filed against food companies. Last week, a federal court in New Jersey denied Tropicana’s...more

Court To Decide Whether FDA Regulation Of Lead In Baby Food Pre-empts California Proposition 65

One of the rare California Proposition 65 trials began on April 8, 2013 – the Environmental Law Foundation (ELF) suit in Alameda County, CA Superior Court (ELF Lead In Food Case, available at...more

Liquidated Damages For Junk Faxes Are Insurable in Illinois

The Federal Telephone Consumer Protection Act provides that it's unlawful to send unsolicited advertisements to a fax machine. 47 USC 227(b)(1)(C). The statute creates a private right of action, with damages equal to actual...more

Ninth Circuit Affirms Preemption Of State Law Claims Asserting National Bank Mislead Consumers By Failing To Make Material...

On May 22, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s holding that the National Bank Act (NBA) preempts state disclosure requirements on a bank’s deposit-related activities. Robinson v. Bank...more

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