Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Category Archives: Consumer Class Action

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DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices

Posted in Consumer Class Action
In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the… Continue Reading

California Legislature Seeks to Restrict Data Use and Ramp Up Retailer Liability for Data Breaches

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection
A bill has been introduced in the California legislature that would dramatically increase retailers’ liability for data breaches. Dubbed the “Consumer Data Breach Protection Act,” Assembly Bill 1710 would enact sweeping changes to California’s data breach notification laws, setting short deadlines by which consumers would need to be notified of breaches and increasing the penalties… Continue Reading

California Court Proposes to Assess $6.8 Million Penalty Against Online Discount Retailer For Engaging in Commonly Used Pricing Claims

Posted in Advertising & Product Risk Management, Consumer Class Action
A California state court recently issued a preliminary ruling proposing to assess a statutory penalty against online discount retailer Overstock.com in the amount of $6.8 million for engaging in allegedly false and misleading discount advertising.1 Overstock.com was alleged to have advertised discounted prices that were pegged to the company’s own uncorroborated estimate of undiscounted retail… Continue Reading

Telemarketers Beware: New TCPA Regulations Effective October 16, 2013

Posted in Consumer Class Action, Privacy & Data Protection
The deadline for complying with new Telephone Consumer Protection Act (TCPA) regulations is on Wednesday, October 16, 2013. The new rules, promulgated by the FCC in 2012, govern the circumstances under which telemarketers can contact consumers. Non-compliance puts both telemarketers and those companies that they act “on behalf of” at potential risk. As of October… Continue Reading

Data Breach Class Action Against Barnes & Noble Dismissed for Lack of Standing

Posted in Consumer Class Action, Privacy & Data Protection
On September 3, 2013, the U.S. District Court for the Northern District of Illinois dismissed a class action complaint against Barnes & Noble seeking damages based on a data security incident, finding that the plaintiffs lacked standing to bring the claims. This decision reaffirms that retailers may be able to avoid damages for data breaches… Continue Reading

Allegation of Data Breach Alone Insufficient to Sustain Claims Based on Inadequate Cybersecurity Under California Law

Posted in Consumer Class Action, Privacy & Data Protection
On March 6, 2013, the United States District Court for the Northern District of California held that a putative class of LinkedIn premium users lacked standing to pursue state law unfair competition, breach of contract, and negligence claims resulting from a hacking incident. The court dismissed the complaint, concluding that the plaintiffs failed to establish… Continue Reading

Crowell & Moring Attorneys to Present “Consumer Protection and Manufacturers, Distributors and Retailers: What Obama’s Second Term Will Mean for Your Business” in San Francisco and Palo Alto

Posted in Advertising & Product Risk Management, Consumer Class Action
Crowell & Moring is pleased to announce two upcoming presentations regarding consumer protection regulation and enforcement and what President Obama’s second turn will mean for retailers (as well as manufacturers and distributors). With the re-election of President Obama, we can expect the government to continue to add to the existing federal regulations. The discussion panel, which includes former agency… Continue Reading

Federal Court Rules Printing Only a Credit Card’s Expiration Month on a Receipt Violates Federal Law

Posted in Consumer Class Action, Privacy & Data Protection
On January 24, 2012, the United States Court of Appeal for the Third Circuit ruled that printing just the month of a credit card’s expiration date on a customer receipt violates the federal Fair And Accurate Credit Transactions Act (FACTA). This is the first federal appeals court to address this issue and confirms that retailers… Continue Reading

Supreme Court Upholds Arbitration Agreement Waiving Customers’ Ability to Bring Class Actions

Posted in Consumer Class Action
In a pro-business and pro-arbitration decision, the United States Supreme Court on April 27 struck down as preempted by federal law the California rule that class arbitration waivers in consumer adhesion contracts are unconscionable and thus unenforceable.  The Court’s decision in AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (2011), hinged on Section 2 of… Continue Reading

California Supreme Court Holds that Collecting and Recording Zip Codes During Credit Card Transactions Violates California Law

Posted in Consumer Class Action, Privacy & Data Protection
In a decision sure to affect the way retailers do business in California, the California Supreme Court has held that asking for and recording a customer’s zip code during a credit card transaction violates California law. Specifically, in Pineda v. Williams-Sonoma Stores, Inc. (Case No. S178241), the Court held that requesting such information violates the… Continue Reading

Supreme Court To Decide Whether Retailers Can Require Individual Arbitration of Customer Claims

Posted in Consumer Class Action
This year, the United States Supreme Court is expected to decide whether a retailer can protect itself against class action lawsuits by including a single claim arbitration provision in its contracts with customers. At issue before the United States Supreme Court is the case of AT&T Mobility v. Concepcion. The question to be decided is… Continue Reading

Food Safety Legislation Highlights Importance of Supply Chain Management for Food Retailers

Posted in Advertising & Product Risk Management, Consumer Class Action
On January 4, 2011, President Obama signed into law the Food Safety Modernization Act (“FSMA”) (Pub. L. No. 111-353, 124 Stat. 3885 (2011)), representing the most substantial overhaul of food safety law in decades. FSMA increases oversight at various points along the supply chain, including production, storage, distribution, and importation. Because the supply chain is… Continue Reading

Retailers That Ask For Customers’ Zip Codes During Credit Card Transactions Do Not Violate Consumer Protection Statute

Posted in Consumer Class Action, Privacy & Data Protection
Case: Pineda v. Williams-Sonoma Stores, Inc., Cal. Court of Appeal, Fourth District, Division One, No. D054355 (Oct. 23, 2009) The One Sentence Summary: A retailer did not violate the Song-Beverly Credit Card Act of 1971 (Cal. Civ. Code § 1747 et. seq.), nor did it invade its customer’s privacy, when it asked a customer who… Continue Reading

Class Action for Deceptive Advertising Was Improper Where Individual Buying Decisions Would Need Proof

Posted in Advertising & Product Risk Management, Consumer Class Action
Case: Thorogood v. Sears, Roebuck & Co., Seventh Cir. No. 08-1590 (10/28/08) The One Sentence Summary: Class action certification was reversed because allegations of deceptive advertising in the sale of Sears Kenmore washing machines with stainless steel drums would require individual determinations of whether buyers were deceived, and deception was unlikely where advertisements did not… Continue Reading

Compliance With State Regulations Provides Protection Against Consumer Claim

Posted in Consumer Class Action
Case: Yabsley v. Cingular Wireless, LLC, Case No. B198827 (Cal. Ct. App. 8/18/2008) The One Sentence Summary: California Court of Appeal holds that compliance with California Regulations relating to retailer’s tax obligations provides safe harbor against claims by consumer for unfair business practices and false advertising under Business and Professions Code sections 17200 and 17500.… Continue Reading

Statute Prohibiting Retailers from Requesting Personal Identification Information for Credit Card Purchases Does Not Apply to Merchandise Returns

Posted in Consumer Class Action
Case: Absher v. AutoZone, Inc., Case No. B202773 (Cal. Ct. App. 6/26/08) The One Sentence Summary: California Court of Appeal held that a consumer protection statute (Civil Code section 1747.08(a)) that prohibits retailers from requesting or requiring consumers to provide personal identification information as a condition to accepting a credit card as payment for a… Continue Reading

For Standing, California’s Unfair Competition Law Requires Injury in Fact and Causation

Posted in Consumer Class Action
Case: Hall v. Time Inc., Case No. G038040 (Cal. Ct. App. 1/7/08)The One Sentence Summary: Plaintiff could not establish injury in fact or causation required by California’s Unfair Competition Law where merchant’s alleged scheme to disregard 21-day free preview period did not induce him to pay for book immediately upon receipt or keep a book… Continue Reading

Protection of Consumer Payment Information Remains an Imperative for California Retailers

Posted in Consumer Class Action, Privacy & Data Protection
The One Sentence Summary: While Governor Schwarzenegger recently vetoed a Bill that would have imposed greater obligations on retailers with respect to protection of consumer payment information, continued legislative efforts are likely and retailers remain subject to data security standards set by the Payment Card Industry. Full Posting: On October 17, Governor Schwarzenegger vetoed AB… Continue Reading

Consumer Lacks Standing to Bring Claim Under California Consumer Protection Laws Where Product Was Purchased for Litigation Purpose Only

Posted in Consumer Class Action
Case: Buckland v. Threshold Enterprises, Ltd., Case No. B192832 (Cal. Ct. App. 9/25/2007) The One Sentence Summary: A consumer who buys a product through her attorney for the sole purpose of litigation arising out of deceptive packaging or advertising lacks standing to bring a claim under the Consumers Legal Remedies Act, unfair competition law or… Continue Reading

Consumer May Seek Restitution Under California’s Unfair Competition Law From Manufacturer Even Though Product Was Purchased From Retailer

Posted in Consumer Class Action
Case: Shersher v. Superior Court (Microsoft Corp.), Case No. B195317 (Cal. Ct. App. 9/10/07)The One Sentence Summary: To recover restitution under California’s Unfair Competition Law, a consumer is not required to have made direct payments to the defendant who is alleged to have engaged in unfair competition or some other act prohibited by the statute… Continue Reading

California Courts Find That Class Action Waivers and Arbitration Clauses in Computer Sale Contracts Were Unenforceable

Posted in Consumer Class Action
Two recent Northern California federal court decisions have held that arbitration, choice of law and class action waiver provisions in computer purchase contracts were not enforceable, and that the consumers could proceed with class action claims in federal court against the computer sellers. In Brazil v. Dell, Inc., (N.D. Cal. No. 5:07-CV-01700 RMW, 8/3/07), the… Continue Reading

California Statutes Prohibiting Use of Misleading Country of Origin Labels on Retail Goods Upheld Against Manufacturer’s Legal Challenges

Posted in Advertising & Product Risk Management, Consumer Class Action
Case: Benson v. Kwikset Corp., No. G030956 (Cal. Ct. App. 6/29/07) The One Sentence Summary: Judgment for plaintiff enjoining manufacturer’s use of “Made in U.S.A.” labels pursuant to California statutes was affirmed, assuming plaintiff can amend the complaint to meet the “injury in fact” and class action requirements of California’s Proposition 64. What They Were… Continue Reading

California Court Refuses to Enforce Cell Phone Provider’s Contractual Arbitration Provision Waiving Class Action Relief

Posted in Consumer Class Action
Case: Gatton v. T-Mobile USA, Inc., Nos. A112082, A112084 (Cal. Ct. App. 6/22/07) The One Sentence Summary: Class action waiver in arbitration clause of T-Mobile’s service agreement was both procedurally and substantively unconscionable and therefore unenforceable. What They Were Fighting About: Plaintiffs filed class action claims challenging T-Mobile’s practice of (1) imposing fee for termination… Continue Reading

Supreme Court Interprets Fair Credit Reporting Act’s “Willful” Standard to Include Reckless Conduct

Posted in Consumer Class Action
Case: Safeco Ins. Co. of America v. Burr, No. 06-84 (Sup. Ct. 6/4/07) The One Sentence Summary: The Supreme Court’s holding that “willful” violations of the Fair Credit Reporting Act include reckless conduct is relevant to pending lawsuits in California and elsewhere alleging that retailers violated 15 U.S.C. section 1681c(g), enabling consumers to seek statutory… Continue Reading