A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act. In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading
In a unanimous decision, the Supreme Court today held that Facebook’s “login notification” text messages (sent to users when an attempt is made to access their Facebook account from an unknown device or browser) did not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act (“TCPA”). In so … Continue Reading
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading
Last summer, we covered the Supreme Court’s decision to grant certiorari in Romag Fasteners v. Fossil in order to decide whether § 1117(a) of the Lanham Act requires that a plaintiff make a showing of willfulness in order to obtain a trademark infringement defendant’s profits for a violation of § 1125(a). As we noted in … Continue Reading
On Friday, June 28, 2019, the Supreme Court granted certiorari in Romag Fasteners, Inc. v. Fossil, Inc. to decide whether a showing of willfulness is necessary to obtain a defendant’s profits under the Lanham Act. In Romag, the plaintiff, a manufacturer of magnetic snap fasteners, sued Fossil and various retailers for, among other things, infringement … Continue Reading
By Carl Mazurek and Lawrence Weinstein on Posted in Class Actions
On May 28, the Supreme Court decided Home Depot U.S.A. v. Jackson, 17-1471 (2019), ruling 5–4 that third-party counterclaim defendants may not remove class actions from state to federal court. The decision, besides keeping in state court certain class actions that otherwise could be removed to federal court, is noteworthy for the highly unusual composition … Continue Reading
Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)’s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, … Continue Reading
On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … Continue Reading
On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading
Our readers may recall that last year, the Supreme Court ruled that a plaintiff in a putative class action cannot subvert the discretionary nature of Rule 23(f) interlocutory review by voluntarily dismissing his case after denial of class certification to obtain an appeal from the denial of class certification as a matter of right. We … Continue Reading
Recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court’s denial of class certification after plaintiff voluntarily dismissed his claims with prejudice. While 28 U.S.C. § 1291 allows appeals from final … Continue Reading
In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff had alleged a particularized injury, and failed to assess whether the alleged injury was “concrete”. Although Spokeo was … Continue Reading
Recently, the U.S. Supreme Court held in Campbell-Ewald Co. v. Gomez, a putative class action case, that an unaccepted pre-certification settlement offer to the named plaintiff does not moot either the plaintiff’s claim or that of the supposed class. The case involved a claim under the Telephone Consumer Protection Act (“TCPA”) and was decided on … Continue Reading
In 2014, we blogged about a California state appellate court decision invalidating the arbitration clause in DIRECTV’s consumer contracts. We found that California decision to be noteworthy because it seemed to fly in the face of the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. 333, 352 (2011), which invalidated California’s ban … Continue Reading
Last year, in Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), the U.S. Court of Appeals for the Ninth Circuit held that offers of complete relief made to individual plaintiffs under Fed. R. Civ. P. 68 do not moot either individual or class claims. This holding mirrors decisions by … Continue Reading
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