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February 2017

House Bill Seeks to Reform Class Action Litigation

New-Development-IconBy Christina Aryafar

On February 9, 2017, House Judiciary Committee Chairman Bob Goodlatte introduced the “Fairness in Class Action Litigation Act of 2017” (H.R. 985), which seeks to amend the procedures used in Federal court class actions and multidistrict litigation proceedings.  Representatives Pete Sessions and Glenn Grothman signed on as cosponsors of the bill earlier this week. 

According to Representative Goodlatte, the proposed reforms would “protect innocent individuals and small businesses who have become the targets of frivolous suits by attorneys who have found loopholes in our civil litigation system.”  He asserts that the provisions of the bill would “maximize recoveries by deserving victims, and weed out unmeritorious claims that would otherwise siphon resources away from innocent parties.”  See Press Release from the Office of Bob Goodlatte, Feb. 10, 2017 (available here).

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Vizio Pays $2.2 Million Fine to Settle Smart TV Spying Charges

By Mary Ellen CallahanJulie Shepard and Mara Ludmer

Night-television-tv-theme-machinesVizio, one of the largest Smart TV companies, recently agreed to pay a $2.2 million fine and be subject to a permanent injunction to settle charges by Federal Trade Commission and the Office of the New Jersey Attorney General that Vizio tracked consumer television viewing on 11 million internet-connect TVs without consent in violation of consumer protection laws.  This is the first case where the FTC’s interpretation of “sensitive information” has been expanded to include consumer’s television viewing data.

According to the FTC’s proposed Complaint, Vizio’s affiliated smart TV manufacturer developed proprietary automated content recognition (“ACR”) software to detect content on internet- connected monitors and televisions.  Commencing in 2014, Vizio began selling ACR-equipped smart TVs with ACR enabled by default and remotely installed ACR tracking on previously-sold TVs.  Vizio allegedly captured “highly-specific, second-by-second information” as to what individuals watched, sent that information to Vizio’s servers and matched it to publicly-available content.  Vizio also allegedly collected viewing data from cable and broadband service providers, over the air broadcasts, set top boxes and external streaming devices.  Vizio was alleged to have collected IP addresses, MAC addresses, and other items.  

To read the full Jenner & Block client alert on this subject, please click here

One Year After Campbell-Ewald v. Gomez: How Have Lower Courts Answered The “Open Question” Posed by the Supreme Court?

Supreme Court iStock_000017257808LargeBy Kate T. Spelman

It has been a year since the Supreme Court issued its highly anticipated decision in Campbell-Ewald v. Gomez.  As we reported here, the Court held in Gomez that an unaccepted offer of settlement, conveyed either as an offer of judgment under Federal Rule of Civil Procedure 68 or otherwise, was insufficient to moot a putative class representative’s claim.  The Supreme Court left open the question, however, of whether a defendant could potentially moot a plaintiff’s claim by actually tendering a reimbursement to the individual plaintiff – e.g., through depositing monies in her bank account or something similar.

How have lower federal courts responded to this open question?  The answer is two-fold. 

On the one hand, no real consensus has emerged with respect to a defendant’s ability to moot a representative plaintiff’s individual claim by tendering full relief.  Some courts have held that such a tender negates the existence of a “live claim,” whereas others have found that a named plaintiff’s individual claim cannot be mooted by an unwelcome reimbursement.  Compare Leyse v. Lifetime Entm’t Servs., LLC, No. 13 CIV. 5794 (AKH), 2016 WL 1253607, at *2 (S.D.N.Y. Mar. 17, 2016) (“[O]nce the defendant has furnished full relief, there is no basis for the plaintiff to object to the entry of judgment in its favor.”) with Bais Yaakov of Spring Valley v. Graduation Source, LLC, No. 14-cv-3232, 2016 WL 872914, at *1 (S.D.N.Y. Mar. 7, 2016) (finding that a plaintiff's TCPA claims remained live even after the defendant deposited a check with the court and assented to the requested injunctive relief). 

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Standing at a Fork in the Road: Prospective Injunctive Relief in the Ninth Circuit

By Sandra Hanian

Road-nature-lines-country1To have Article III standing to obtain injunctive relief in federal court, a plaintiff must allege a “real or immediate threat” that he will be wronged again in a similar way.  City of Los Angeles v. Lyons, 461 U.S. 95, 96 (1983).  This simple proposition has resulted in a split within the Ninth Circuit, where plaintiffs regularly seek injunctive relief in putative consumer class actions alleging false advertising in violation of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  The question is whether a representative plaintiff can establish a credible threat of future injury when he or she is already aware that the packaging and/or advertising claims on a product are allegedly misleading.  California federal district courts can be categorized into three camps on this issue.

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Trump Administration’s Regulatory Rollback Should Come with a Warning Label: Cutting Some Regulations May Be Harmful to Your Bottom Line

Supermarket-949913_1920By Jill M. Hutchison

On January 30, President Trump signed the Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs.  Executive Order 13371.  The stated aim of the Order is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations” by identifying regulations for elimination.  Order Section 1.  Much of the early coverage of this Executive Order has focused on environmental regulations and labor rules, pondering the impact to workers, the environment, and public safety in exchange for a presumably less burdensome, lower-cost regulatory environment for businesses.  However, a significant cut in the regulations of each agency is not a panacea that will result in a “gain” on the business side of the ledger for all industries.  Fewer regulations, particularly regulations related to labeling, may make some aspects of the consumer products industry more complicated and costly, not less.

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