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Consumer Litigation


In-depth looks into topics relevant to you. Find all of the Consumer Litigation Committee’s articles in this archive.


FTC Proposes Sweeping, Nationwide Regulations for Automatic Renewals
By Michael P. Daly, Matthew J. Adler, and Meaghan V. Geatens – August 17, 2023
Proposed amendments to the Negative Option Rule would regulate continuous contracts, automatically renewing agreements, and free (or discounted) trials in addition to prenotification plans.

Fourth Circuit Takes Expansive View of MLA Auto Loan Exemption
By Mark E. Rooney – August 17, 2023
Court sides with lenders to find that related products or services bundled into an auto loan don’t disqualify the loan from the Military Lending Act’s auto loan exemption.

The Ninth Circuit’s Road Map on How to Defend California Consumer Fraud Claims
By Jeffrey S. Jacobson – August 17, 2023
The recent McGinity decision out of the Ninth Circuit clarifies how to apply the “reasonable consumer” test.

What’s the Risk?: Recent Trends in Advertising Class Actions
By Baldassare Vinti, Jeffrey Warshafsky, and Jennifer Yang – February 16, 2023
Staying on top of the latest trends can go a long way toward being able to mitigate risk for your business.

Is Your Website a Ticking Time Bomb? Ten Tips for Defusing Litigation Risk
By Michael P. Daly and Matthew J. Adler – February 16, 2023
Things to consider when designing a website or drafting a website’s terms of use and other customer-facing policies.

“I’ll Do That Later”: Procrastination, the Quiet Enemy
By Virginia Flynn, Stefanie Cerrone, Nicole ElMurr, and Joshua Howell – February 16, 2023
An overview of why we procrastinate, with some tricks to keep you motivated to stay on top of your work.


Reasonable Security Measures: The Next Focus in Data Breach Litigation
By Gregory Szewczyk and Sarah Dannecker – August 25, 2022
Standing likely will not be central to many data breach cases, but the key issue will likely shift to whether or not a company implemented reasonable security measures.

Standing at the Crossroads: Article III in FDCPA and TCPA Litigation since TransUnion
By James J. Morrissey, Matthew M. Morrissey, and Sophie H. Gotlieb – August 25, 2022
In the wake of TransUnion, Article III standing has once again become a hotly contested issue in consumer class actions.

One Year Later: Facebook’s Impact on the TCPA
By Christopher E. Roberts, Virginia Bell Flynn, and Sarah E. Siu – August 25, 2022
The Supreme Court’s ruling in Facebook v. Duguid has effectively closed the door on most autodialer claims.  

One Year Later: Facebook’s Impact on the TCPA
By Christopher E. Roberts, Virginia Bell Flynn, and Sarah E. Siu – April 22, 2022
The Supreme Court’s ruling in Facebook v. Duguid has effectively closed the door on most autodialer claims.

Lost Market Share Not Compensable under California's UCL
By Kalama M. Lui-Kwan, Victoria Phan, and Alexandria Pritchett – February 11, 2022
The California Court of Appeal confirmed that damages remedies masquerading as equitable remedies are not compensable under the UCL.

The Problematic Proliferation of Automatic Renewal Laws
By Michael Daly, Matthew Adler, and John Cappel – February 11, 2022
Answers to 10 key questions every consumer-facing company should be asking about automatic renewal laws.

The Year 2021 in Review: Trends in Data Breach Litigation
By Gregory Szewczyk and Kelsey Fayer – February 11, 2022
In 2021, courts weighed in on Article III standing, privilege, and biometrics, answering some questions and creating new ones for litigants and counsel.

A Tale of Two Functions: Business and Legal Considerations after a Data Breach
By Todd Presnell and Ben Perry – February 11, 2022
Analyzing how best to preserve attorney-client privilege and work product protections over data breach investigatory reports in light of changing trends.

CCPA Enforcement: Key Takeaways from the California AG Case Examples
By Webb McArthur and Megan Nicholls – February 11, 2022
The California attorney general's office spotlights its focus on targeted advertising and disclosures in CCPA enforcement.


Facebook Decision Upends TCPA Litigation Landscape
By Michael P. Daly and Mark E. Rooney – July 15, 2021
The Supreme Court's decision was a victory for Facebook and any other business that routinely attempts to communicate with its consumers using stored lists of consumer numbers.

CPRA Brings Heightened Enforcement Risk Alongside Data Breach Private Right of Action
By Kyle R. Fath – July 15, 2021
Given the complexity of the law, organizations must begin preparing for the CPRA well in advance of 2023.

Constitutionality of the TCPA Between 2015 and 2020
By Gregg Stevens and Stefanie Deka – July 15, 2021
A question has arisen regarding whether the TCPA was constitutional between the enactment of the government-debt exception in 2015 and the AAPC decision in 2020.

FCRA Year in Review: Key FCRA Appellate Decisions
By Rebecca E. Kuehn and David N. Anthony – July 15, 2021
In 2020, the appellate courts had numerous opportunities to weigh in on many unanswered questions that remain in litigation after over 50 years since the statute was first enacted.

Senescence and Sensibility: Will the Supreme Court Mothball the TCPA?
By Michael P. Daly – February 22, 2021
The TCPA’s autodialing restriction has been read in a way that Congress could not have imagined, let alone intended.


California's Choice-of-Law Jurisprudence and Its Application to Internet Fraud
By Jonathan Udell – March 19, 2019
Tracking the genesis of California's choice-of-law analysis, the current state of the law, and how that analysis ought to apply in the relatively new realm of e-commerce cases. 

The Forthcoming Wave of Biometrics Class Actions
By Geoffrey J. Derrick – March 19, 2019
Consumer-facing businesses should thoroughly investigate their compliance with BIPA unless they want to go surfing. 

Food Fights in the Big Apple: Two Significant New Food Labeling Decisions
By August T. Horvath – March 19, 2019
Two recent decisions in New York have the potential to change the landscape for these types of cases. 

It's a Wonderful Payment History
By Donald R. Pocock – March 19, 2019
George Bailey would have never heard of securitization of debt. 

The Evolving Definition of an Auto-Dialer under the TCPA
By Mark E. Rooney – March 19, 2019
The ACA International ruling and its aftermath raise more questions than answers. 


Statistics in Class Actions: Is the Computer Algorithm Era upon Us? (Part II)
By Paul G. Karlsgodt, Patrick T. Lewis, and Bonnie McNee – August 14, 2018
A discussion of the practical implications of using statistical methods in litigation.

The Origin and Evolution of Cryptocurrencies
By Seoyung Kim and Sumon Mazumdar– August 14, 2018
An accessible introduction to the evolution, current uses, and regulatory perspectives on Bitcoin and other virtual currencies.

Consumer Protection in Cryptocurrency Markets under the CFTC's Watch
By Seoyung Kim and Sumon Mazumdar– August 14, 2018
Discussing the recent efforts undertaken by the Commodity Futures Trading Commission to rein in on the abuses in the cryptocurrency market.

Using Compelling Visuals for Effective Communication in Litigation
By Angela Sabbe and Jeremy Guinta – August 14, 2018
Learn how to use charts and other visuals to tell a story in motion practice and at trial, and learn how to evaluate visuals critically.

Summary Judgment: How to Get It and How to Beat It
By Roger Slade – August 14, 2018
A useful primer for younger attorneys and state court practitioners on how to approach summary judgment motions.


Statistics in Class Actions: Is the Computer Algorithm Era upon Us? (Part I)
By Paul G. Karlsgodt, Patrick T. Lewis, and Bonnie McNee – August 31, 2017
Has the legal system reached a state where class-wide damages can be determined simply by statistical analysis rather than documentary evidence? A discussion of key cases and trends on the use of statistics in class actions.

Henson v. Santander: Debt Purchasers Versus Debt Collectors
By Jason Tompkins and Jonathan Hoffmann – August 31, 2017
Returning to textualism, the U.S. Supreme Court held that debt purchasers collecting on their own debts fall outside one definition of "debt collector" under the FDCPA.

Calls, Faxes, and Texts: Prior Consent under the TCPA
By Angela Sabbe and Zach Merritt – August 31, 2017
Discussing recent cases addressing the issue of consent to be contacted under the TCPA.

Clarifying Cooperation under Rule 1: A Command or a Recommendation?
By Kathryn Honecker and Jonathan Udell – January 31, 2017
At least one district court has threatened to sanction counsel who do not cooperate.

Emerging Issues under the Fair Debt Collection Practices Act
By Christopher E. Roberts – March 8, 2017
Examining recent appellate and Supreme Court cases concerning consumer debt purchasers and debt collectors under the FDCPA.

Prepaid Accounts: Expanded Consumer Protection by the CFPB
By Angela Sabbe and Heather Koo – March 8, 2017
Discussing the final rule recently issued by the CFPB broadening the protections for consumers who use prepaid credit cards and other prepaid accounts.

Ensuring Validity and Admissibility of Consumer Surveys
By Rebecca Kirk Fair and Laura O’Laughlin – March 8, 2017
Reviewing relevant cases and literature and discussing best practices for the use of expert-prepared consumer surveys as part of litigation strategies.

Character and Fitness: The Underrepresentation of Black Men in Law
By Jay E. Mitchell – March 8, 2017
Examining one aspect of the legal infrastructure that may hinder greater diverse representation in the legal community: the character and fitness portion of state bar examinations.


Conspiracy Liability: If the Underlying Wrong Doesn't Fit, You Must Acquit
By Ben Johnston – March 18, 2015
An examination of the genesis and expansion of the "legally capable" requirement.

Tactics for Defeating Class Certification of TCPA Claims
By Kali Backer – March 2, 2015
Obtaining a denial of class certification is a powerful tool that can significantly impact settlement negotiations.


Financial Fraud Enforcement Task Force Has Ambitious Agenda
By Benjamin P. Saul – June 13, 2013
Institutions are wise to focus on the task force's recent enforcement priorities.

Mazza's Impact on the Inference of Reliance in Consumer Class Actions
By Neal Marder, Stephanie Leonard, and Ali Rabbani – June 13, 2013
The Ninth Circuit's blockbuster decision continues to have a significant influence on consumer-protection class actions.

Low-Hanging Fruit: Cross-Border Consumer Copycat Class Actions
By Thomas Arndt and Wendy Hulton – June 13, 2013
Class counsel benefit from the bounty generated by their colleagues in other jurisdictions.

Mass. High Court: ZIP Codes Are "Personal Identification Information"
By Michelle Doolin, Darcie Tilly, and Lindsay Parker – June 13, 2013
The Massachusetts SJC follows in the footsteps of the California Supreme Court.


Article III and the Supreme Court's 'Non-Decision' in Edwards
By Whitty Somvichian and Kyle Wong – November 1, 2012
The Supreme Court's non-decision in Edwards v. First American Corp. creates lingering uncertainty on the Article III injury requirement in consumer cases.

Ethical Issues in the Digital Age: Navigating E-Discovery Challenges
By Elizabeth E. McGinn and Kristopher Knabe – November 1, 2012
Recent shifts in technology have fundamentally altered the practice of discovery.

Prop 37: California's Newest Challenge for Food-Product Companies
By Rebecca Cross – November 1, 2012
A new proposal takes aim at products containing genetically modified ingredients.

State UDAP Statutes: Disgorgement, Dissolution, and Sequestration
By Michael Flynn – November 1, 2012
It will take courage and funding for public enforcers to vigorously seek the full range of remedies under state statutes for unfair and deceptive acts and practices.

New Privacy Framework Poses Challenges for Digital Stakeholders
By David S. Almeida and David M. Poell – April 17, 2012
The Obama administration takes a bold step to secure online privacy for consumers.

Consumer Lawsuits Arising from "Green" Labeling Claims
By C. Kinnier Lastimosa – April 17, 2012
"All natural" may not mean what it used to.

Recent Developments in Enforcement of Online Consumer Contracts
By Whitty Somvichian – April 17, 2012
Courts around the country weigh in on the reach and scope of online user agreements.

Shine-the-Light Law: California's Latest Class-Action Trend
By John W. McGuinness and Christina J. Weis – April 17, 2012
Until now there has been little guidance in creating litigation-proof privacy policies.


Lower Class-Certification Standards as Discrimination Suit Advances
By Elizabeth E. McGinn, Benjamin P. Saul, and Sarah Betts Esterhay – February 1, 2011
More than 1.5 million current or former female Wal-Mart employees are all potential class members in a lawsuit alleging gender discrimination.

Have You Heard of Electronic Discovery and Metadata?
By John T. Rouse – February 1, 2011
Based on the amended rules and the recent case law, the question arises, "What is discoverable?" The short answer is, "everything relevant."

Settlement Bodes Expanded Liability and Aggressive Enforcement
By Benjamin P. Saul – February 1, 2011
The settlement reflects the DOJ's increasingly aggressive enforcement of fair-lending laws and, to the extent it broadens lender liability for the actions of third parties, is especially significant.

The Continuing Violations Doctrine under the FHA
By Kirk D. Jensen – February 1, 2011
Courts have recently struggled with the application of the continuing violations doctrine to claims brought under the Fair Housing Act.