WTK Connect
This blog provides updates and important insights about products liability, commercial, and consumer litigation. It aims to educate our audience on the developments in these areas as well as to provide the audience with unique perspectives from seasoned defense attorneys. ______________________________________________________________________________________________________________________
- California’s Lemon Law Continues to Produce Bitter Results for Manufacturers as Only the Legislature, not the Courts, Can Address the Law’s “Twisted” Fee-Shifting Provision
Jan 29, 2019 | Topic: Warranty
A recent ruling by San Diego Superior Court Judge Timothy Taylor and the corresponding California Court of Appeal opinion have confirmed that the California legislature should be tasked with reviewing and amending California’s Song-Beverly Consumer Warranty Act (“Song-Beverly”) fee-shifting provision.
Continue reading... - Central District Of California’s Local Rule 23-3 Remains In Current Version Of Local Rules Despite The Ninth Circuit’s Explicit Rejection Of Bright-Line Rule
Jan 29, 2019 | Posted by Kirsten F. Gallacher | Topic: Class Actions
Certain district courts, such as the Central District of California, have local rules with strict filing deadlines for motions for class certification in order to streamline class actions pending in the district. Local Rule 23-3 provides that “[w]ithin 90 days after service of a pleading to commence a class action . . . the proponent of the class shall file a motion for class certification that the action is maintainable as a class action, unless otherwise ordered by the Court.” C.D. Cal. L.R. 23-3.
Continue reading... - District Court Holds Text Messages Sent As Part Of Ongoing Business Transaction With The Plaintiff Are Not Advertising Or Telemarketing Under The TCPA
Jan 29, 2019 | Posted by Kirsten F. Gallacher | Topics: Telephone Consumer Protection Act, Class Actions
In An Phan v. Agoda Company Pte. Ltd., No. 16-CV-07243-BLF, --- F. Supp. 3d ----, 2018 WL 6591800 (N.D. Cal., Dec. 13, 2018),[1] the district court granted summary judgment for the defendant upon holding that text messages sent from the defendant to the plaintiff were merely transactional—i.e., did not contain advertising or telemarketing—and thus were not subject to the heighted standard requiring prior express written consent.
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[1] This decision was appealed to the Ninth Circuit on January 4, 2019.
- Information Gathering or Advertising: FCC to Rule on What Constitutes An Advertisement For Purposes Of TCPA Liability
Jan 29, 2019 | Topic: Telephone Consumer Protection Act
The Telephone Consumer Protection Act (“TCPA”) is aimed at protecting consumers from unsolicited telephone marketing calls and faxes. In order for liability under the TCPA to be triggered, an unsolicited call of fax must be an “advertisement” i.e., “any material advertising the commercial availability or quality of any property, goods, or services.” See 47 U.S.C. § 227(a)(5). Because of this “unsolicited advertisement” requirement, Courts and the Federal Communications Commission (“FCC”) are often tasked with determining if a call or fax is in fact an advertisement. Hopefully, what constitutes an advertisements will be further defined once the FCC issues an order in Kenneth A. Thomas MD LLC v. Best Doctors, Inc., No. 1:18-cv-10957.
Continue reading... - The Ninth Circuit’s Decision Not to Rehear Panel’s Decision That Evidence Need Not Be Admissible At Class Certification, Gives Rise to a Fiery Dissent Criticizing the Decision
Nov 30, 2018 | Posted by Kirsten F. Gallacher | Topic: Class Actions
Earlier this year, the Ninth Circuit issued a decision in Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018), holding that because the class certification order is “preliminary” and can be entered at an early stage of the litigation, a motion for class certification need not be supported by admissible evidence.
Continue reading... - The Supreme Court Will Address Whether District Courts Are Required to Accept the FCC’s Legal Interpretation of the TCPA, Which Will Likely Have Huge Ramifications on TCPA Litigation
Nov 30, 2018 | Posted by Kirsten F. Gallacher | Topics: Class Actions, Telephone Consumer Protection Act
On November 13, 2018, the United States Supreme Court granted in part a petition for a writ of certiorari of the Fourth Circuit’s decision in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018). The specific question before the Supreme Court is “[w]hether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.”
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