Welcome to a three-part series that provides an overview of the California Invasion of Privacy Act (CIPA), examines recent CIPA litigation involving smart speakers, and proposes defenses in response to an alleged violation.

CIPA in the Age of Smart Devices

The California Invasion of Privacy Act (CIPA)[1]—traditionally used by law enforcement and the plaintiffs’ bar to address illegal recording/eavesdropping on phone calls—has seen renewed interest in the age of smart speakers. Smart speakers, such as Amazon’s Alexa, Google Home and Apple’s Siri, are voice-enabled devices where the user utters a “wake word” to activate a “virtual assistant”.  A … Continue Reading

TCPA class actions based on the receipt of unsolicited text messages have grown more common in recent years.  However, the Eleventh Circuit’s decision in Salcedo v. Hanna, may upend that trend by holding that a single unsolicited text message did not generate the harm necessary to satisfy Article III standing to sustain a Telephone Consumer Protection Act (“TCPA”) claim.

In Salcedo, the Eleventh Circuit reviewed its own precedent, the legislative history of the TCPA, and the Supreme Court’s decision in Spokeo v. Robins, 136 S. Ct. 1540 (2016)—which concluded that plaintiffs must allege concrete injuries and could not … Continue Reading

When and how can a defendant in a putative class action defeat a proposed class?  Defendants served with class action complaints frequently struggle with this question.  Typically, defendants wait until class certification briefing following lengthy discovery to contest class treatment.  This waiting game carries a high cost – discovery in class action cases is usually lengthy (even when bifurcated to address class certification first), expensive, and contentious, carried on while potentially ruinous exposure dangles over the defendant’s head.  Many defendants therefore consider filing early motions to strike class allegations prior to or during discovery to attempt to narrow the class—or … Continue Reading

Sometimes settlement with a putative class of nationwide consumers is the best option for resolution. However, since the initial ruling of the Ninth Circuit in In re Hyundai & Kia Fuel Econ. Litig., the mechanism to go about doing so has been in flux.  On June 6, 2019, the full en banc Ninth Circuit finally answered class action practitioners’  questions and affirmed the district court’s June 2015 final settlement approval order and certification of a nationwide class of consumers. The decision unravels the prior ruling of a divided three-judge panel of the Ninth Circuit, which previously vacated the class … Continue Reading

On Tuesday May 28, 2019, the United State Supreme Court declined to afford state court third-party, class action defendants the ability to remove a class action to federal court. See Home Depot U.S.A., Inc. v. Jackson, 17-1471 (May 28, 2019).

In Jackson, Citibank, N.A., filed a debt-collection action against George Jackson in North Carolina state court. Jackson answered this action and filed his own claims: (1) an individual counterclaim against Citibank and (2) a third-party class-action against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc.

After Citibank dismissed its claims against Jackson, Home Depot filed a notice … Continue Reading

The roller coaster of employer liability under the background check provisions of the Fair Credit Reporting Act (FCRA) recently took an upswing with the California Court of Appeals’ decision in Culberson v. Walt Disney Parks & Resorts.  The Culberson court considered two class claims, both of which are now-familiar spindles ready to prick the fingers of unwitting employers.  First, Culberson alleged that he received a pre-background check notice from Disney that contained extraneous information, in violation of the FCRA’s requirement that the notice be provided in a document that “consists solely of the disclosure” (commonly known as the “standalone … Continue Reading

On Jan. 29, 2019, the 9th U.S. Circuit Court of Appeals, in a strikingly broad decision, raised the bar for employers’ compliance with the Fair Credit Reporting Act (FCRA). In Gilberg v California Check Cashing Stores LLC, the court held that an employer violates the FCRA by including, in a pre-background check notice form, information about a job applicant’s rights under various state laws. This decision will require significant revision of many employers’ FCRA consent forms.

The Gilberg court’s opinion focused on the FCRA’s pre-background check notice requirement, one of several notice and disclosure obligations the FCRA imposes on

… Continue Reading

Any good litigator can tell you that removal is proper where there is diversity of citizenship and the amount in controversy exceeds $75,000.  Diversity generally requires that no defendant be a citizen of the same state as the plaintiff.  By way of example, consider a lawsuit filed by Paul, a Pennsylvania citizen, in Pennsylvania state court against Daniel from California and David, also a Pennsylvania citizen.  At first glance, it would seem there is no diversity because David is from Pennsylvania and he is a “forum defendant”.  However, not all litigators may realize that in certain jurisdictions a defendant can … Continue Reading

As the new year begins, this is a good time to recap two of the major Supreme Court decisions from the past year impacting class action law, and to look ahead to a couple big decisions on the horizon.

Looking Back

Arbitration and Class Actions

First, in Epic Systems Corporation v. Lewis, the Court confirmed that class action waivers in arbitration agreements are enforceable in employment contracts, even where the employee is covered by the National Labor Relations Act (NLRA).  Within a year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the … Continue Reading

A number of changes to Fed. R. Civ. P. 23 took effect on December 1, 2018. They’ve been in the works for some time, so no surprises, but now is a good time to summarize them.  The changes deal primarily with class settlements and objections:

Rule 23(c)

Rule 23(c)(2)(B), which deals with class notice, has been expanded to encompass proposed settlement classes. Giving notice of proposed settlement classes is now discretionary under Rule 23(e) as discussed below.

Rule 23(c)(2)(B) also added a sentence specifying that the class notice may be made by U.S. Mail, electronic means, or other appropriate means. … Continue Reading