Michael Stortz

Michael Stortz

Akin Gump Strauss Hauer & Feld LLP

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9th Circuit Provides Key Guidance for Defendants Opposing Rule 23(b)(3) Class Actions

Key Points - The en banc 9th Circuit clarified numerous rules applicable to class actions brought under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The court’s watershed decision in Olean Wholesale Grocery v....more

4/13/2022  /  Class Action , Class Certification , Class Members , Daubert Standards , Evidence , FRCP 23(b)(3) , Preponderance of the Evidence

Changes on the Horizon for Service Contract Sellers and Other Businesses

Service contracts allow retailers and manufacturers to offer service plans for consumer products, and sellers and administrators of such contracts are categorically exempted from California’s ARL....more

11/12/2021  /  Automatic Renewals , CPUC , Disclosure Requirements , FCC , FERC , Financial Institutions , Governor Newsom , Service Contracts , Subscription Services

Despite Its Allure, Litigation Funding Is Just ‘The Cost of Doing Business’ for Class Counsel

A federal district court rejected a novel request from class counsel for reimbursement of counsel’s litigation funding expenses. According to the court in Perez v. Rash Curtis & Assoc., No. 16-03396 (N.D. Cal. October 1,...more

10/26/2021  /  Class Action , Class Members , Fee Awards , FRCP 23(e) , Litigation Fees & Costs , Litigation Funding , Settlement

“No Concrete Harm, No Standing”

Key Points - The U.S. Supreme Court held that all members of a certified class must demonstrate that they suffered a concrete harm—such as physical injury or monetary loss—to have Article III standing to recover damages in...more

6/30/2021  /  Article III , Class Action , Class Members , Credit Reporting Agencies , Credit Reports , FCRA , Injury-in-Fact , SCOTUS , Standing , TransUnion , TransUnion LLC v Ramirez

Supreme Court to Review Article III Standing Requirement for Absent Class Members

The U.S. Supreme Court granted review last week in TransUnion LLC v. Ramirez, which presents the question of whether Article III or Rule 23 of the Federal Rules of Civil Procedure permits a damages class action where most...more

12/23/2020  /  Article III , Class Certification , Class Members , Class Representatives , FCRA , FRCP 23 , Injury-in-Fact , Office of Foreign Assets Control (OFAC) , Petition for Writ of Certiorari , Standing , TransUnion

It Settled—Now What? Ninth Circuit Limits Settling Plaintiffs’ Ability to Appeal Orders Denying Class Certification

- The 9th Circuit has held that settlement of a plaintiff’s individual claims moots the appeal of an order denying class certification, unless the settlement agreement specifically preserves the plaintiff’s personal stake in...more

6/18/2020  /  Appeals , Article III , Class Action , Class Certification , Class Representatives , FRCP 23(f) , Litigation Fees & Costs , Microsoft v Baker , Mootness , Putative Class Actions , Settlement Agreements , Settlement Negotiations

Second Circuit Decision Widens Circuit Split in TCPA Landscape

- In a departure from the majority view, the 2nd Circuit has held that a texting platform need not have the capacity for random or sequential number generation in order to constitute an an automatic telephone dialing system...more

4/13/2020  /  ATDS , Auto-Dialed Calls , FCC , Prior Express Consent , Split of Authority , Statutory Interpretation , TCPA , Telemarketing , Text Messages

9th Circuit Holds All Members of a Certified Class Must Have Article III Standing To Recover Monetary Damages

- In a matter of first impression within the 9th Circuit, the court held that each member of a certified class must have Article III standing in order to recover individual monetary damages at trial. - Those class members...more

3/9/2020  /  Appeals , Article III , Class Action , Class Certification , Class Members , Credit Reports , FCRA , Injury-in-Fact , Office of Foreign Assets Control (OFAC) , Punitive Damages , Standing , Statutory Damages , Statutory Violations , TransUnion

Eleventh Circuit Decision “Marks” a Further Shift in the TCPA Landscape

Key Points - On January 27, 2020, the 11th Circuit held that telephone equipment must randomly or sequentially generate numbers in order to constitute an “automatic telephone dialing system” (ATDS) under the Telephone...more

1/31/2020  /  ATDS , Auto-Dialed Calls , Class Action , Debt Collection , FCC , First Amendment , Legislative History , Predictive Coding , Statutory Interpretation , TCPA

11th Circuit Holds That Single Unwanted Text Message Does Not Confer Standing

• In Salcedo v. Hanna, the court found that a single text message sent in alleged violation of the TCPA does not result in concrete injury required by Article III. • A single text message does not result in the type of...more

9/5/2019  /  Article III , Injury-in-Fact , Invasion of Privacy , Putative Class Actions , Spokeo v Robins , Standing , TCPA , Telemarketing , Text Messages

California Supreme Court Revises Ascertainability Prerequisite to Class Certification

• In Noel v. Thrifty Payless, Inc., the California Supreme Court clarified the scope of the ascertainability prerequisite to class certification. The Court held that proposed classes are ascertainable if defined by objective...more

8/5/2019  /  Ascertainable Class , CA Supreme Court , Cal Code of Civil Procedure , Class Action , Class Certification , Class Members , Due Process , Reversal

Critical Considerations for Compliance with the FCRA

These days, companies conducting background checks on job applicants have a lot to think about. Most companies are aware of the Fair Credit Reporting Act (FCRA) and FCRA’s various state analogs. FCRA, one of a number of...more

6/19/2019  /  Background Checks , Class Action , Consumer Reports , Corporate Counsel , Disclosure Requirements , Employer Liability Issues , Employment Application , Employment Litigation , FCRA , Hiring & Firing , Job Applicants

En Banc 9th Circuit Holds Class Action Certification Is Different For Settlement Classes

• En banc 9th Circuit affirmed a $210 million settlement in multidistrict litigation against Hyundai and Kia relating to their alleged misrepresentations about the fuel efficiency of their vehicles, reversing the decision of...more

6/11/2019  /  Choice-of-Law , Class Action , Class Certification , FRCP 23 , Hyundai , Kia , Predominance Requirement , Putative Class Actions , Settlement

Where Are We Now? – Taking Stock of CCPA Amendments after May 31 Legislative Deadline

• May 31, 2019, was the deadline for the California Legislature to pass bills out of the chamber in which they were introduced. Several measures proposing amendments to the California Consumer Privacy Act (CCPA) passed the...more

6/5/2019  /  California Consumer Privacy Act (CCPA) , Consumer Privacy Rights , Cybersecurity , Data Collection , Data Privacy , Data Protection , Legislative Agendas , Personal Data , Personally Identifiable Information , Privacy Laws , Proposed Amendments

Proposed Bill to Expand the CCPA’s Private Right of Action Likely Dead For the Year

• On May 16, 2019, the California Senate Appropriations Committee held Senate Bill 561 (SB-561) in committee, likely blocking its passage this term. • SB-561, co-authored by the California Attorney General, would have...more

5/20/2019  /  California Consumer Privacy Act (CCPA) , Consumer Privacy Rights , Cybersecurity , Data Breach , Data Collection , Enforcement Actions , Personal Data , Private Right of Action , State Attorneys General

U.S. Supreme Court Confirms That the Federal Arbitration Act Protects Bilateral Arbitration

• The Supreme Court has once again affirmed that the Federal Arbitration Act (FAA) protects a party’s right to individualized arbitration, and preempts state policy that would force resolution of broader, more complex...more

4/26/2019  /  Ambiguous , Appeals , Arbitration , Arbitration Agreements , Class Arbitration , Consent , Federal Arbitration Act , Federal v State Law Application , Jurisdiction , Lamps Plus Inc v Varela , Motion to Compel , Preemption , Reversal , SCOTUS

Supreme Court Confirms Standing Requirements Apply at All Stages of Litigation

• On March 20, 2019, the U.S. Supreme Court remanded a case involving the use of cy pres in lieu of specific relief to individual class members in a proposed settlement for a determination of whether the plaintiffs had...more

3/25/2019  /  Class Action , Corporate Counsel , Cy Pres Funds , Frank v Gaos , FRCP 23(e) , Remand , SCOTUS , Settlement , Spokeo v Robins , Standing , Vacated

Shoptalk 2019 - The Transformation of Retail on Full Display

“I sleep like a baby . . . I wake up every two hours crying.” - Jim Donald, President & CEO of Albertsons when interviewed at Shoptalk about how he deals with the pace of certain competitors. “The industry is in such a sea...more

3/8/2019  /  Advertising , Business Development , Competition , Customer Information , Data Collection , Data Privacy , Data Use Policies , Marketing , Retail Market , Retail Sales , Retailers , Supply Chain , Technology Sector

Ninth Circuit Determines that Absence of Federal Guidance Is No Bar to ADA Claims Challenging Websites and Mobile Apps

• The 9th Circuit held that, because a website and mobile app were auxiliary services of a place of public accommodation, they were required to be ADA-compliant. • This holding is limited to claims that the lack of...more

1/25/2019  /  ADA , Brick-and-Mortar Stores , Department of Justice (DOJ) , Disability Discrimination , Dominos , Mobile Apps , Public Accommodation , Title III , Web Content Accessibility Guidelines (WCAG) , Website Accessibility , Website Owner Liability , Websites

Ninth Circuit Invalidates Local Rule Requiring Class Certification Motions to Be Brought Within 90 Days

• Central District of California Local Rule 23-3 requires plaintiffs to file a motion for class action certification within 90 days of service of the complaint. • The 9th Circuit in ABS Entertainment overturned Local Rule...more

1/14/2019  /  Abuse of Discretion , Appeals , Bright-Line Rule , Class Action , Class Certification , Discovery , Filing Deadlines , FRCP 23 , Local Rules , Reversal , Summary Judgment

FCC Approves Order Addressing Reassigned Number Database and Accompanying Safe Harbor

• Companies across industries have been facing TCPA litigation based upon calls and text messages to reassigned telephone numbers. • On December 12, 2018, the FCC—with the support of many parties and industry groups—voted...more

12/14/2018  /  ATDS , Auto-Dialed Calls , Corporate Counsel , FCC , Liability , Reassigned Phone Numbers , Robocalling , Safe Harbors , TCPA , Telecommunications

Retail Industry Leaders Association Urges the FCC to Address Key TCPA Issues

• Companies across industries continue to face TCPA litigation and address compliance challenges. • The FCC will soon be addressing key TCPA issues in the wake of the D.C. Circuit’s ruling in ACA International. • One...more

10/29/2018  /  ATDS , Class Action , FCC , Retailers , Statutory Interpretation , TCPA , Telecommunications , Telemarketing

Ninth Circuit Creates Split Of Authority as to TCPA’s Scope

• Parting company with the 3rd Circuit, the 9th Circuit has ruled that equipment that can automatically dial stored numbers may qualify as an ATDS under the TCPA. • The ruling creates a split of authority as to whether the...more

9/26/2018  /  ATDS , Auto-Dialed Calls , FCC , Predictive Coding , Prior Express Consent , Smartphones , Split of Authority , Statutory Interpretation , TCPA , Telecommunications , Vacated

Bargained-For Consent: An Increasingly Viable Defense to TCPA Claims

• In most TCPA cases, a threshold question is whether a called party has provided prior express consent to receive calls (or texts) using an automatic telephone dialing system. • While numerous courts have ruled that a party...more

9/6/2018  /  Auto-Dialed Calls , Contract Terms , Corporate Counsel , Debt Collection , Debt Collectors , Dish Network , FCC , Prior Express Consent , Revocation , Robocalling , Summary Judgment , TCPA , Telecommunications , Telemarketing , Text Messages
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JD Supra Privacy Policy

Updated: Dec 28, 2021:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
150 Harbor Drive, #2760
Sausalito, CA 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
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There are different types of cookies and other technologies used our Website, notably:

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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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