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District Court Says Supreme Court Ruling on Standing in Class Actions Does Not Apply to Privacy Claims

July 29, 2021

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On June 25, 2021, the Supreme Court issued an important decision on Article III standing in class actions that will have a significant impact on the way class actions are certified – and will likely scuttle numerous  settlements that have not yet received final approval.  In TransUnion LLC v. Ramirez (2021) 141 S.Ct. 2190, the Supreme Court reversed a Ninth Circuit decision certifying a class of 8,185 individuals as to whom TransUnion had erroneously placed an Office of Foreign Assets Control alert into their credit files – in effect, labeling them as a terrorist, narco-trafficker, or serious criminal — in violation of the Fair Credit Reporting Act (“FCRA”).  Through FCRA, Congress imposed a requirement on credit reporting agencies to make reasonable efforts to ensure the accuracy of credit reports and created a private right of action which makes “Any person who willfully fails to comply with any [FCRA] requirement … liable to that consumer” for actual damages, statutory damages, punitive damages and attorney’s fees. § 1681n(a).  A jury ultimately awarded the class $60 million in statutory and punitive damages.

The Supreme Court reversed.  The Court first clarified that all class members, not just representative class members, must demonstrate Article III standing, reversing decisions such as Neale v. Volvo Cars of North America, LLC (3d Cir. 2015) 794 F.3d 353, 362 and Melendres v. Arpaio (9th Cir. 2015) 784 F.3d 1254, 1264, which held that only named class members must have standing.  Next, expanding on its decision in Spokeo, Inc. v. Robins, 578 U. S. 330, 340, 136 S.Ct.

California Federal Court Holds Domino’s Website Violates the ADA, Limits Penalties Under Unruh Act to $4,000

A California federal district court has held that the website of Domino’s Pizza violates the ADA, following a long saga that included the Ninth Circuit’s reversal of the district court’s prior dismissal of the case.

Judge Jesus Bernal of the Central District of California granted the motion for summary judgment by plaintiff Guillermo Robles on June 23, 2021, on grounds that Robles could not order a pizza from Domino’s website using screen reader technology, and ordered Domino’s to make the website accessible in accordance with the Web Content Accessibility Guidelines (WCAG), version 2.0.  The court denied the plaintiff’s motion for summary judgment as to Domino’s app, however, finding that whether the app is currently accessible – and therefore whether the plaintiff’s claim for injunctive relief under the ADA is moot – to be a disputed issue of fact.

The court also held that Domino’s violated California’s Unruh Act, which incorporates the ADA.  In a bright spot for Domino’s and other website accessibility defendants, however, Judge Bernal rejected the plaintiff’s argument that he was entitled to $4,000 in statutory damages under the Unruh Act for each of his visits to Domino’s website, because each visit constituted a separate violation.  Instead, the court held that Domino’s inaccessible website constitutes a “single overarching violation,” and that the plaintiff is limited to $4,000 in Unruh Act penalties.

The court rejected Domino’s argument that its phone line was an acceptable accessibility substitute for its web page and app, because the plaintiff had waited for more than

Employee COVID Vaccination Status: You Asked. They Answered. Now What?

As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination.  In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).

But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on providing employees’ vaccination status to other employees, such as managers, or even to third parties, such as clients or vendors? Where should an employer keep the information?

Recently, the EEOC updated its Guidance to partially address these questions:

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (5/28/21)

U.S. Biometric Laws & Pending Legislation Tracker

BCLP has been tracking enacted biometric privacy statutes and proposed legislation across the United States. This Alert provides a map highlighting the current status of biometric privacy-related laws and pending legislation. Existing laws have led to a boon of class action litigation for claimed violations of biometric privacy rights. It is therefore imperative that businesses remain informed of their obligations, which are increasingly expanding and arising in new jurisdictions. BCLP continues to monitor as newly proposed legislation proliferates. Please check back here periodically for updates.

Click here to read the Alert in full.

Employers Required to Pay Premiums for COBRA Continuation Coverage Until At Least September 30, 2021

May 3, 2021

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Employers in the U.S. should remember that they may be required to pay for employees’ COBRA coverage this year.  The American Rescue Plan Act of 2021 provides that, for periods of COBRA coverage between April 1 and September 30, 2021, that were triggered by an involuntary termination of employment or a reduction of hours, 100% of the COBRA premium will be paid by the employer, health plan, or insurer, and the premium expense will be reimbursed by the federal government through a refundable FICA tax credit.

For more information, see the helpful blog post by our colleagues in the Employee Benefits and Executive Compensation group, which can be found here: DOL Flies Alone: Guidance on the 100% COBRA Subsidy under the American Rescue Plan Act of 2021.

Fast Growing CBD Market Continues To Create Regulatory Challenges and Litigation Opportunity

April 15, 2021

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CBD litigation in 2020 reinforced a several things about the CBD (and other hemp derivatives) industry, including:

  • companies involved in the CBD industry must carefully navigate the regulatory and litigation landscape;
  • it’s not just the brand owners who are the target of claims, but also raw material suppliers, manufacturers, distributors and retailers;
  • ensure that your product contains what you say it contains and in the amount you say it contains; and
  • perhaps most importantly, carefully scrutinize your claims, as false, misleading, or egregious claims present the quickest and most direct path to government scrutiny and class action claims.

Click here to read the Alert in full.

Website Accessibility Alert: Eleventh Circuit Court of Appeals Issues Important Split Decision in Winn-Dixie Website Action

Businesses with an online presence should take note that the United States Court of Appeals for the Eleventh Circuit has held—in a split decision—that websites are not places of public accommodation under Title III of the Americans with Disabilities Act (“ADA”).

On Wednesday, April 7, 2021, the Eleventh Circuit issued its much-awaited decision in Gil v. Winn-Dixie Stores, Inc. —holding that “websites are not a place of public accommodation under Title III” of the Americans with Disabilities Act (“ADA”) and that the plaintiff’s inability to access Winn-Dixie’s website was not a violation of Title III, vacating the decision of the district court, and remanding the case for further proceedings.

As we previously reported, Gil was the first website accessibility case to go to trial.  After a bench trial, the U.S. District Court for the Southern District of Florida held that Winn-Dixie had violated Title III of the ADA because its website was inaccessible to the visually impaired plaintiff.  Despite the fact that Winn-Dixie does not conduct sales through its website, the district court found that the website was “heavily integrated” with the physical store locations since customers could use the website to access digital coupons, find store locations, and refill prescriptions through the website.

The appeal presented three questions: (1) whether the plaintiff had standing to bring the case; (2) whether websites are places of public accommodation under Title III of the ADA; and (3) whether the district court erred in its verdict and judgment.  Opinion at 9.  In addressing the

California Court Halts New Prop. 65 Actions for Acrylamide as a Carcinogen

April 2, 2021

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A California district court has granted the California Chamber of Commerce’s preliminary injunction motion and prohibited the filing of new Proposition 65 lawsuits alleging exposure to acrylamide in food, pending the outcome of the case filed by the Chamber against the Attorney General’s office challenging enforcement of the cancer warning for acrylamide.

The order by Judge Kimberly J. Mueller states that “[w]hile this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products.”  The injunction applies to the Attorney General as well as private enforcers.

Although not a final prohibition on such enforcement actions, the ruling is expected to bring welcome relief to food manufacturers and retailers who have been hit hard by a wave of lawsuits.  There have been more than 1,000 60-day notices alleging exposure to acrylamide in food, and more than one-third of those were served in the past year.

The issue before Judge Mueller was whether the safe harbor warning language set out in the Proposition 65 regulations, which includes the use of the statement that the product is “known” to cause cancer, constitutes compelled speech which is not “purely factual and uncontroversial.”  After weighing competing factors of prior restraint, free speech, and conflicting scientific evidence, Judge Mueller concluded that the Chamber had demonstrated a likelihood of success in its argument that the warning is not “purely factual

Court Confirms that CCPA Is Not Retroactive

March 24, 2021

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In one of the first substantive decisions handed down since the California Consumer Privacy Act (“CCPA”) came into effect, the District Court for the Northern District of California held in Gardiner v. Walmart, Case No. 20-cv-04618-JSW (March 5, 2021) that the limited private right of action for the unauthorized disclosure of unencrypted personal information does not apply to conduct occurring prior to the statute’s January 1, 2020 effective date.

In Gardiner, plaintiff alleged personal information that he and other users of Walmart’s website provided in creating an online account, including credit card information, was accessed by hackers as a result of an undisclosed data breach and had been posted on the Dark Web. The District Court dismissed plaintiff’s CCPA claim, finding that plaintiff’s failure to allege the date of the alleged hacking and access of his data required dismissal because he could not show that it had occurred after the statute’s effective date, citing Civ. Code § 3 (“[n]o part of [this Code] is retroactive, unless expressly so declared.”) and People v. Brown, 54 Cal. 4th 314, 319-20 (2012) (“in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature must have intended a retroactive application.”). In so holding, the court also implicitly affirmed that in order to state a claim under the CCPA, a plaintiff must allege a data breach under §1798.150, rather than a violation of other CCPA provisions. See p. 4 (n order to have a viable

New Toxic Chemical Regulations: Is Your Supply Chain Impacted?

March 18, 2021

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There are new chemical regulations on the block, and your company’s supply chain might be implicated. These rules prohibit both the manufacturing of certain bioaccumulating chemicals as well as the distribution of products that contain these chemicals. Read on for a high-level summary of the rules and what you should expect next.

The U.S. Environmental Protection Agency (“EPA”) issued five final rules regulating the manufacture and distribution of certain persistent, bioaccumulative and toxic (“PBT”) chemicals pursuant to the Toxic Substance Control Act (“TSCA”) in January 2021. These rules became effective on February 5, 2021, and impact chemical and end use product manufacturers, suppliers, wholesalers, and merchants.

Click here to read the Alert in full.

US COVID-19: Under the American Rescue Plan, Providing FFCRA Leave Remains Voluntary

The American Rescue Plan (“ARP”), signed into law by President Biden on March 11, 2021, does not place any new paid leave requirements on private employers who were previously covered by the Families First Coronavirus Response Act (“FFCRA”).  However, as they have been able to do through the first quarter of 2021, such employers may voluntarily continue to provide Paid Sick Leave (“PSL”) and Emergency Family and Medical Leave Act (“EFMLA”) leave as set forth in the FFCRA and receive certain payroll tax credits for such wages.

In addition, the ARP expands various aspects of the FFCRA:

Expansion of PSL:

  • Employees can be given a new 10-day allotment of PSL for use from April 1, 2021 through September 30, 2021, even if they exhausted their PSL days during 2020 or used PSL with the employer’s permission during the period January 1 – March 31, 2021.
  • PSL can be used for additional reasons (subject to the FFCRA requirement that the employee be unable to work due to the qualifying reason), specifically:
    • for leave needed when the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID 19, where such employee has been exposed to COVID-19 or the employer has requested such test or diagnosis;
    • for leave needed when the employee is obtaining immunization related COVID-19; and/or
    • for leave needed when the employee is recovering from any injury, disability, illness, or condition related to COVID-19 immunization.

Expansion of EFMLA:

  • The first ten

Changing “Buy Now Pay Later” Regulations & Considerations for Retailers

On 2 February 2021, the FCA published its Review of the Unsecured Credit Market in the UK. The full title of the review is “The Woolard Review – A review of change and innovation in the unsecured credit market” (“the Review“). Critically, the Review recommended that all Buy Now Pay Later (“BNPL“) credit arrangements should be brought within the scope of the UK’s regulatory regime for consumer credit “as a matter of urgency”. Key amongst the various motivating factors for this recommendation is the idea that proper affordability assessments should be carried out on those being offered these credit products so as to prevent, or at least mitigate, potential consumer detriment.

Click here to read the Alert in full.

Year In Review: 2020 Food, Beverage & Supplement Litigation Round-Up

February 12, 2021

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The global pandemic, stay at home orders, and government issued lockdowns did not stop 2020 from being yet another active year for new regulatory activity and litigation targeting the food, beverage and supplement industries.

In this round-up, Bryan Cave Leighton Paisner LLP presents a collection of regulatory developments, key court decisions, and notable settlements that were reached in 2020.

The highlights of this 2020 round-up include:

  • New federal and state legislation governing food labeling, packaging, and taxation
  • Litigation trends within the food industry
  • COVID-19 related litigation and regulation
  • An update on regulations and litigation regarding CBD-based products
  • Slack fill litigation update
  • Plant-based product litigation update
  • Prop 65 and food safety update
  • Notable rulings and settlements
  • A preview of areas to watch in 2021

CPRA Digest – New Consumer Rights under CPRA and What That Means for Your Business

On November 3, 2020, Californians voted to pass Proposition 24, expanding and modifying the California Consumer Privacy Act (“CCPA”), which came into force on January 1, 2020. The new California Privacy Rights Act (“CPRA”) supersedes the CCPA and will be fully operative on January 1, 2023 (with a look-back period starting January 1, 2022). Until that time, the CCPA as written and amended generally remains in effect.  As we learned during the lead up to the CCPA, the time period to prepare for this type of comprehensive and complex legislation passes quickly, and businesses should begin their CPRA preparations sooner rather than later.  In this installment of the CPRA Digest, we discuss the expanded and new consumer rights under the CPRA, and the implications for organizations anticipating the CPRA.

Expanded Consumer Rights

The CPRA expands the following existing consumer rights:

  • In addition to having the right to request the categories of personal information about a consumer that a business sells, a consumer now also has to the right to know when their personal information is “shared” with a third party, and when information is otherwise disclosed for  a business purposes, including disclosures to a service provider.1

Under the CPRA, the concept of “sharing” personal information is novel and significant because it is aimed directly at cookies and similar technologies used for online advertising. “Sharing” is defined as renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal Information

California Proposes Changes to Short-Form Prop. 65 Warning

February 10, 2021

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The short form of the California Proposition 65 warning that appears on numerous consumer products may look different in the future.  California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed several significant changes to the language and permitted uses of the short-form warning.

Use Limited to Small Packages

When OEHHA issued the warning regulations that took effect in August 2018, it provided an option for a short form warning, intending that it be used on products too small to accommodate the longer warning.  However, the final regulatory language did not specify that the warning could only be used on small packages, resulting in its use on everything from pens to refrigerator boxes.

In response, on January 8, 2021, OEHHA proposed a regulation that provides that the warning can only be used where the following three conditions are met:

  • The total surface area of the packaging is five square inches or less;
  • The package shape or size cannot accommodate the full-length warning; and
  • The warning is printed in a type size no smaller than the largest type size used for other consumer information, but in no case smaller than 6-point type.

Use Permitted on Food Products

The proposed regulation clarifies a point of debate by confirming that the short form can be used on food products – so long as it’s set apart in a box just like the long form warning.

Use Prohibited for Internet and Catalog Warnings

OEHHA is also proposing to eliminate the option to use

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