Takeaways:

  • Recent detection of cosmetic products containing asbestos has led to voluntary recalls of five products so far this year.
  • At present, the FDA does not have mandatory recall authority over cosmetic products.
  • The FDA and Congress are contemplating proposals concerning the cosmetics industry that may lead to further enforcement activity in this sector.


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Takeaway: The U.S. Supreme Court ever so slightly trimmed removal rules under the Class Action Fairness Act (CAFA) last week in Home Depot U.S.A., Inc. v. Jackson, No. 17-1471. In an opinion by Justice Thomas, the Court held that neither CAFA nor the general removal statute (28 U.S.C. § 1441(a)) permit removal by a third-party counterclaim defendant. That is, a party brought into the suit through a claim filed by the original defendant cannot remove the case to federal court.

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The United States Supreme Court recently held that classwide arbitration cannot be inferred from an ambiguous agreement.  The Supreme Court’s decision reverses a Ninth Circuit decision that relied on state contract principles to compel classwide arbitration of a putative class action filed by an individual employee.

In Lamps Plus, Inc. v. Varela, __ U.S. __ (April 24, 2019), the Court considered whether the Federal Arbitration Act (“FAA”) forecloses interpretation of an ambiguous arbitration agreement compelling classwide arbitration.  The Ninth Circuit affirmed the trial court’s determination that an agreement that stated “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” was ambiguous as to whether it authorized class arbitration.  Applying California state contract principles to construe the agreement against the drafter, the Ninth Circuit held there was sufficient ambiguity to conclude the parties agreed to class arbitration.
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In the wake of the D.C. Circuit’s opinion vacating the Federal Communications Commission’s order interpreting the Telephone Consumer Protection Act (TCPA), federal courts have disagreed on how to define an “automated telephone dialing system” (“autodialer”) under the statute. Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois recently stepped into the fray, holding in Gadelhak v. AT&T Service, Inc., that equipment qualifies as an autodialer only if it has the (present) capacity to generate numbers randomly or sequentially.
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On December 29, 2018, Google won summary judgment in Rivera v. Google, a privacy class action alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The case involved “face grouping,” a feature that enables Google Photos to automatically sort and group the photographs in a user’s private account based on visual similarities between

The Ninth Circuit recently denied a motion for rehearing en banc in Marks v. Crunch, leaving in place a Ninth Circuit decision that broadly defines “automated telephone dialing system” (“autodialer”) under the Telephone Consumer Protection Act (“TCPA”). The decision conflicts with decisions from other circuits.  And in the New Year, the FCC is expected to issue its own new interpretation of the term “autodialer” under the TCPA. Amidst this uncertainty, companies should proceed cautiously when reaching consumers by phone or text, and should consider how to minimize risk with respect to the TCPA’s autodialer provisions.
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It’s been a busy year in consumer protection law and during this holiday season, we’re taking stock of the past year and looking ahead to what’s next.  In 2018, we saw many class actions related to pricing practices, scrutiny of Made in USA claims, continued growth in popularity and the evolution of influencers (

As consumers shift towards “organic,” “natural,” and “clean” foods for themselves and their families, they are also making similar purchasing decisions when it comes to pet food. However, as sales of “premium” pet food have increased in recent years, so has the number of consumer class action lawsuits filed against pet food manufacturers, specifically those involving claims that marketing and labeling pet foods as “natural” is false and misleading when they contain artificial ingredients, synthetic ingredients, chemicals, heavy metals, and/or toxins.
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A customer who is blind has sued Five Guys Enterprises in the Southern District of California, claiming that he could not access the Freestyle Coca-Cola soda machine in a Five Guys restaurant.  The parties each filed a motion for summary judgment on the issue of whether Five Guys violated the Americans with Disability Act (ADA), California’s Unruh Act and California’s Disabled Person Act (DPA) when its employees did not offer to help the customer use the soda machine.

Generally, the ADA, and California’s Unruh Act and the DPA require that public accommodations (like a restaurant) ensure that no individual is discriminated against on the basis of a disability.  Public accommodations are required to furnish appropriate auxiliary aids and services to ensure effective communication with individuals with disabilities.  Here, the plaintiff claimed that this meant Five Guys employees should have offered to help him operate the soda machine. 
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A California appeals court has allowed a putative-class-action complaint to proceed against an online retailer based on a consumer’s allegation that the retailer falsely advertised price discounts and that the consumer would not have purchased the items if he knew he was not receiving a discount.

In Hansen v. Newegg.com Americas Inc., Case No.