UNITED STATES – Online merchants often use click-wrap agreements to set the terms and conditions for the use of their sites, providing an “I Agree” button that a would-be user must first click before using the site or doing business with the merchant. When presented in an abbreviated or referenced fashion, using a link to the agreement or a scrolling window, these agreements allow companies to set fairly specific terms, including class action waivers and…
FRANCE – Class actions were almost inexistent in France before their introduction in French law by the Statute n°2014-344 of March 17, 2014. The key aspects of this new law have already been outlined in our previous post dated 28 January 2015. The following aims at presenting the only 6 class actions brought before the courts since the implementation of the statute in October 2014 and the foreseeable development of the class and collective actions…
UNITED STATES – Ever since the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) increased the cap on civil penalties from $1,825,000 to $15 million for related violations of the consumer product safety laws, the U.S. Consumer Product Safety Commission (“CPSC”) has steadily—and substantially—increased the amount of civil penalties it has sought from companies violating federal product safety regulations. CPSC Chairman Elliot Kaye has repeatedly called for much higher penalties against violating companies. But up…
UNITED STATES – Any company that makes sales through the Internet to New Jersey consumers should be aware of a recent trend in consumer class actions based on New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (the “TCCWNA”), N.J.S.A. 56:12-14, et seq. The plaintiff’s bar is attracted to the TCCWNA as a basis for consumer class actions because, like many other statutes underlying consumer class actions [1], it provides for statutory damages and attorneys’ fees…
UNITED STATES – In Tyson Foods v. Bouaphakeo, regarding alleged uncompensated time spent by a class of employees donning and doffing hard hats, work boots, gloves, and earplugs, the plaintiff workers supported their claim by submitting averages and other statistical analysis to show similarities between disparate class members. The statistics were achieved through 744 observations of employees conducting such off-the-clock activities to average the length of time spent. The average time was then added to…
UNITED STATES – In Campbell-Ewald Co. v. Gomez, the Supreme Court refused to allow class-action defendants to escape liability through an unaccepted offer of full payment of the named plaintiff’s claims. This resolved a deep circuit split on the issue. The Court concluded that “basic principles of contract law” established that once the offer was rejected, the offer could not moot the claim. Interestingly, the Court expressly refused to decide whether a defendant could escape…
CANADA – In an earlier post we discussed the implications of the Ontario Superior Court decision of Coffin v. Atlantic Power Corp. (“Coffin”) on secondary market securities class actions. We observed that the decision reiterated a higher threshold for secondary market misrepresentation class actions under the Ontario Securities Act (“OSA”), stating that the test for leave under the OSA was intended to be a “robust deterrent screening mechanism” to help “weed out hopeless claims”. Coffin was…
UNITED STATES – The Supreme Court has once again spoken decisively in favor of class action waivers in arbitration agreements. In DirecTV, Inc. v. Imburgia, the Court explained in no uncertain terms that “[t]he Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it.” The Court thus reversed a decision of the California Court of Appeal that…
UNITED STATES – On November 2, 2015, the Supreme Court heard oral argument on an issue that is likely to have a significant impact on the future of consumer class action litigation. The issue before the Court was whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on…
UNITED STATES – The Consumer Financial Protection Bureau (“CFPB”) recently announced that it intends to limit the scope of mandatory arbitration clauses contained in consumers’ agreements with credit card companies and other consumer financial institutions. To this point, credit card companies have been able to obstruct efforts by aggrieved consumers to bring class actions by invoking mandatory arbitration provisions in their contracts, known as “free pass” clauses. Under those provisions, aggrieved consumers must redress their…