Category Archives: Consumer Litigation

On Daubert and Class Certification

The Sixth Circuit today vacated a district court’s certification of 10 classes relating to claims about Nissan’s automatic electronic braking systems. The court first held that the district court had inadequately considered commonality and predominance. It then went onto address a question that has divided the circuits over the past decade- whether expert testimony considered […]

First Circuit Affirms Antitrust Block on American-JetBlue Joint Venture

On her last day as Secretary of Transportation during the last Trump Administration, Elaine Chao signed off on a joint venture between American Airlines and JetBlue, which allowed extensive cooperation and coordination between the two airlines, effectively allowing the two to operate as a single airline with respect to most routes out of Boston and […]

Third Circuit Allows Benzene Class Action to Proceed Under Benefit-of-the-Bargain Theory

After Bayer voluntarily recalled certain anti-fungal consumer products that contained benzene due to a production error , consumers who had purchased the affected products filed a class action. They alleged three forms of harm: (1) that they were deprived of the benefit of their bargain because they contracted for safe products that did not contain […]

Whither consumer protection in a second Trump administration?

The future, they say, is the hardest thing to predict. With that caveat, what can we expect from a second Trump administration for consumer prediction? Some quick thoughts: President-elect Trump will surely ask CFPB Director Rohit Chopra to resign so that he can replace Chopra with someone he prefers. Despite the fact that Vice President-elect […]

California’s Refund-or-Replace Remedy Doesn’t Apply to Used Cars Still Under Warranty

California’s Song-Beverly Consumer Warranty Act provides significant protections to consumers in that case–particularly for those who purchase automobiles. One provision gives certain car buyers a “refund-or-replace remedy,” requiring the manufacture to replace a defective car, or provide restitution, after a “reasonable number of attempts” for repair. Today, the California Supreme Court issued a decision as […]

Ninth Circuit holds FAA does not apply to mass arbitration provisions

Yesterday, the Ninth Circuit issued an opinion in Heckman v. Live Nation Entertainment, where it affirmed a district order denying a motion to compel mass  arbitration of a consumer antitrust class action about online ticket sales practices by Live Nation and Ticketmaster. Finding the arbitration agreement “borderline unintelligible,” the panel majority held that both the […]

Third Circuit Clarifies Standard for Discovery Into Arbitrability

In Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013), the Third Circuit addressed the question of, when considering a motion to compel arbitration,  what standards district courts should apply when determining whether an agreement to arbitrate was actually formed between the parties. The court held that the Rule 12(b)(6) standard […]

Who is a “consumer” under the Video Privacy Protection Act?

Enacted in 1988, the Video Privacy Protection Act  (VPPA) makes it unlawful for a “video tape service provider” to “knowingly disclose[], to any person, personally identifiable information concerning any consumer of such provider.” The statute further defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”  The […]

More on “Browse-Wrap” Arbitration

Yesterday, I noted the Pennsylvania Supreme Court had agreed to hear a case involving browse-wrap arbitration agreements. Later in the day, the Seventh Circuit issued a decision concerning one such agreement, finding  that a consumer and a home improvement had entered into a valid and enforceable agreement. Adopting case law from the 9th and 2nd […]

Eighth Circuit Affirms Sanctions for Experian’s Overbroad FCRA Discovery Tactics

Two consumers sued Experian after discovering the agency, was reporting an automobile loan as “discharged through bankruptcy,” when they had been making payments on the loan for years, and their attempts to correct the issue proved unsuccessful. For some reason, Experian responded by issuing sweeping discovery requests — including broad subpoenas issued to the law […]