Consumer Law

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With the rise in remote work, not to mention better technology, many employers have begun using apps and other services to monitor employees’ activities to track, assess, and evaluate workers. The Consumer Financial Protection Bureau (CFPB) recently issued a Circular stating that employers’ use of the reports generated by those apps and services may be subject to the Fair Credit Reporting Action (FCRA) just like a traditional employee background check.Continue Reading Whatcha Watching? The CFPB’s Recent Guidance on Employer Monitoring

By now, you have probably heard about the Federal Trade Commission’s new “click to cancel” rule, which requires sellers to provide a simple mechanism to cancel a negative-option feature (essentially any recurring or automatically renewing subscription). If you haven’t, you can check out our previous post here. But “click to cancel” is just one facet of the FTC’s broader “Rule Concerning Subscriptions and Other Negative Options.” There are three other aspects to the new negative-option rule. Continue Reading Beyond “Click to Cancel:” What Else Is Included in the FTC’s New Negative-Option Rule

Sixth Circuit Affirms Dismissal of Claims Against Bob Baffert and Churchill Downs

Two weeks ago, Mystik Dan won the Kentucky Derby by a nose over Sierra Leone and Forever Young. If you didn’t watch the race and haven’t seen the finishing photo, you should check it out here and here. 

The 2021 Kentucky Derby also had a notable finish, albeit for less auspicious reasons. That year, Medina Spirit was the first horse to cross the finish line at the Kentucky Derby. Nine months later, however, the Kentucky Horse Racing Commission disqualified Medina Spirt because the horse tested positive for betamethasone in a post-race drug test. As a result, Maundaloun was declared the winner. Nineteen individual plaintiffs who would have won their wagers on the new order of finish brought a putative class action against Bob Baffert and Bob Baffert Racing, Inc. (who trained Medina Spirit) and Churchill Downs, Inc. (which owns the racetrack where the Derby is run). Just in time for Triple Crown season, the Sixth Circuit affirmed the dismissal of the plaintiffs’ claims for reasons that provide insight beyond horse racing. Mattera v. Baffert, No. 23-5750 (6th Cir. May 2, 2024).Continue Reading And They’re Not Off . . .

For Halloween, rather than discuss any of the various litigation over candy (e.g., the litigation over Skittles or “slack fill” in packages), we are going to travel back to 1984 to look at what a mishap with a sheep costume says about how consumer expectations can affect liability from Ferlito v. Johnson & Johnson, 983 F.2d 1066 (6th Cir. 1992) (Table). Continue Reading Little Bo Peep’s Fiery Sheep

Pepsi_Stuff_logo

Over the holidays, I enjoyed watching Pepsi, Where’s My Jet?, the Netflix four-episode documentary about John Leonard’s attempt to claim a Harrier fighter jet through the “Pepsi Stuff” promotion during the 1990s. Pepsi ultimately prevailed in the litigation that ensued when the soft-drink company denied Leonard’s claim.  See Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999). Here are four thoughts that I had on the series as someone who practices consumer litigation.Continue Reading Four Thoughts on Pepsi, Where’s My Jet?

Due to a Fifth Circuit decision striking down the Consumer Financial Protection Bureau’s (CFPB) Payday Lending Rule promulgated in 2017 — in a case known as Community Financial Services Association of America, Limited v. CFPB — the Bureau’s very existence is in peril.

Some of the key takeaways from this decision are:

  • CFPB’s funding structure violates the Constitution’s Appropriations Clause.
  • There was a “linear nexus” between the unconstitutional funding mechanism and the challenged CFPB action — in this case, a

…
Continue Reading CFPB is in Existential Crisis — and Covered Parties Have a Unique Opportunity

There is a public perception that class actions result in multimillion-dollar liability for the defendants. The recent settlement of Woodard v. Labrada, a case in which TV’s Dr. Mehmet Oz was originally named as a defendant, shows that is not always the case. The suit alleged misrepresentations regarding certain weight-loss supplements manufactured by Labrada Bodybuilding Nutrition, Inc., which the plaintiffs claimed Dr. Oz received compensation to promote on his TV show. After six years of litigation, Labrada — the only remaining defendant (the plaintiffs dismissed the allegations against Dr. Oz and other media defendants) — agreed to a settlement that requires the payment of just $625,000.
Continue Reading Dr. Oz Suit Shows Not All Class Actions Result in Millions of Dollars

On Monday, the U.S. Supreme Court, in Morgan v. Sundance, Inc., overturned the arbitration-specific waiver rules in nine circuits that had held a finding of prejudice was essential to determining whether a party had waived its right to arbitrate. Instead, courts should apply “ordinary procedural rules” — such as the federal law that waiver is the intentional relinquishment or abandonment of a known right (without a prejudice requirement) — to determine whether an arbitration agreement is enforceable.
Continue Reading No More Special Arbitration-Waiver Rules

Welcome to Taft’s Class Action & Consumer Insights blog. Here, we will discuss developments in class actions and consumer statutes that are frequently the subject of class actions, such as the Fair Credit Reporting Act, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, and various state-law consumer-protection statutes. We hope you enjoy.
Continue Reading Introducing Taft Class Action & Consumer Insights