Gibbons Law Alert

Gibbons Law Alert

Tagged: Class Action

CIPA Litigation and the “Technological Capability” to Violate California’s Privacy Laws

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Posted in Class Action

On March 7, 2025

In Ambriz v. Google, LLC,  a court in the Northern District of California refused to grant Google’s motion to dismiss the plaintiffs’ claims under Section 631(a) of the California Invasion of Privacy Act (CIPA) for (i) “intentional wiretapping,” and (ii) “willfully attempting to learn the contents or meaning of a communication in transit.”  The lawsuit challenges Google’s AI-powered product, Google Cloud Contact Center AI (“GCCCAI”), which is used to support the customer service centers of other businesses by providing a virtual agent with whom callers can interact. The plaintiffs alleged that they placed customer service calls to businesses that use the GCCCAI service – specifically, Verizon, Hulu, GoDaddy, and Home Depot – and spoke with a “virtual agent” and human representative but did not know that Google would be listening in on and transcribing the call. Nor did the plaintiffs consent to Google’s alleged eavesdropping. Google moved to dismiss the CIPA claims on the ground, among others, that it simply provides a software tool to its business clients and was not “an unauthorized third-party listener to the communications between the named Plaintiffs and the customer service centers they called.” In denying Google’s motion to dismiss, the court began its analysis by explaining the split that has emerged in cases interpreting CIPA 631(a): Some courts require...

ChatBot or Not: California Federal Courts Limit CIPA Applicability

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Posted in Class Action Defense

On September 3, 2024

The Northern District of California recently issued a decision further constraining plaintiffs’ ability to assert claims under the California Invasion of Privacy Act (CIPA). In Ambriz v. Google, LLC, the plaintiff filed a putative class action alleging that Google violated CIPA § 631(a) because its Cloud Contact Center AI software-as-a-service, a virtual customer service tool, wiretapped, eavesdropped on, and recorded his call to Verizon’s customer service center.

FCC Reverses Course and Finds That Government Contractors Are “Persons” Under the TCPA

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Posted in Class Action Defense

On January 26, 2021

Last month, the Federal Communications Commission (FCC) issued an Order on Reconsideration, overturning Commission precedent by clarifying that federal, state, and local government contractors are “persons” under the Telephone Consumer Protection Act (TCPA) and therefore must, under 47 U.S.C. § 227(b)(1)(A)-(D), obtain prior written consent to make certain calls using an automatic telephone dialing system or artificial or prerecorded voice; to initiate a call to any residential telephone line using an artificial or prerecorded voice; to use a fax machine or other device to send an unsolicited advertisement; or to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. This ruling is the latest in the Commission’s efforts to protect consumers from unwanted robocalls. The TCPA prohibits certain unsolicited calls made by any “person,” which includes an “individual, partnership, association, joint-stock company, trust, or corporation,” without the prior written consent of the consumer. In 2016, the FCC issued a declaratory ruling stating that the federal government and federal government contractors were not “persons” under the TCPA, and therefore, the limitations on calling enumerated in Section 227(b)(1)(A)-(D) did not apply to them. The FCC reasoned that there is a longstanding presumption that the word “person” does not include the sovereign and that,...

Lack of Plaintiff Article III Standing Proves Fatal to Eleventh Circuit in FACTA Class Action Settlement

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Posted in Class Action Defense

On January 25, 2021

In a 7-to-3 en banc decision, the Eleventh Circuit vacated a high-stakes $6.3 million class settlement on standing grounds. In James Price v. Godiva Chocolatier, Inc., et al, the court held that a named plaintiff lacked standing to bring a claim under the Fair and Accurate Credit Transactions Act (FACTA) on behalf of a proposed settlement class. The plaintiff, Dr. David Muransky, filed a class action complaint against Godiva claiming a violation of FACTA, which prohibits “merchants from printing more than the last five digits of the card number (or the card’s expiration date) on receipts offered to customers.” After visiting a Godiva retail store in Florida, the plaintiff was handed a receipt that contained the first six and the last four digits of his credit card number–a technical violation of FACTA. The plaintiff claimed that the violation was “statutory in nature” and did “not intend[] to request any recovery for personal injury.” The plaintiff further framed the class’s harm from violations as “irreparable harm as a result of the defendant’s unlawful and wrongful conduct,” and that “Plaintiff and members of the class continue to be exposed to an elevated risk of identity theft.” The putative class was so large that Godiva could have faced statutory damages, punitive damages, and costs of more than $342...

Second District Court to Dismiss Claims Based on Unconstitutional Statute Provision

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Posted in Class Action Defense

On January 22, 2021

In Lindenbaum v. Realgy, the United States District Court for the Northern District of Ohio dismissed the plaintiff’s “robo-call” class action under the Telephone Consumer Protection Act (TCPA), based on the Supreme Court’s 2020 holding that a statutory exception for automated calls to collect government debts was unconstitutional. Because the statute was unconstitutional at the time of the alleged violations, the district court determined that it lacked subject matter jurisdiction and dismissed the lawsuit. Originally enacted in 1991, the TCPA restricts almost all prerecorded sales calls to cell phones. In 2015, Congress amended the provision to allow prerecorded calls “made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii). The 2015 provision was struck down in 2020 by the United States Supreme Court’s plurality decision in Barr v. American Association of Political Consultants, Inc. While the Supreme Court struck down the portion of the statute dealing with calls for government debt, it left the rest intact. In Lindenbaum, the plaintiff brought a class action lawsuit alleging violations of the TCPA. Specifically, the plaintiff alleged that she received two prerecorded calls, one to her cellphone and one to her landline, and had not provided express written consent to receive these calls. The plaintiff argued that the severance of the...

Wrap Up of United States Supreme Court’s 2014-2015 Term

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Posted in General Litigation

On July 1, 2015

With the close of the United States Supreme Court’s 2014-15 term, we offer this wrap up of the Court’s term, focusing on the Court’s most important business and commercial cases (excluding patent cases). Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund: It is widely known that if the registration statement an issuer files with the SEC contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading, then a purchaser of securities sold pursuant to the registration statement may sue the issuer for damages.

Supreme Court Shuts Door on Moldy Washer Litigations

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Posted in Class Action Defense

On April 30, 2014

After much anticipation, on February 24, 2014, the Supreme Court rejected, without comment, Whirlpool Corp.’s and Sears Roebuck & Co.’s bids to challenge class certification in litigations involving allegedly defective washer machines. For a discussion of the history of the “moldy washer” cases, click here and here. In denying the writs of certiorari, the Supreme Court declined to disturb the Sixth and Seventh Circuits’ post-remand orders, concluding that Comcast Corp. v. Behrend had “limited application” to decisions where determinations on liability and damages were bifurcated.

Fifth Circuit Denies NLRB Petition to Rehear D.R. Horton

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Posted in Alternative Dispute Resolution

On April 21, 2014

On April 16, 2014, the Fifth Circuit Court of Appeals denied the National Labor Relations Board’s (the “Board” or “NLRB”) petition for rehearing en banc in D.R. Horton, Inc. v. NLRB, thus upholding its December 3, 2013 decision that arbitration agreements prohibiting class or collective actions claims do not violate the National Labor Relations Act (“NLRA”).

Eleventh Circuit Becomes Latest Court of Appeals to Enforce Agreement to Arbitrate FLSA Collective Action

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Posted in Wage and Hour

On April 1, 2014

On March 21, 2014, the United States Court of Appeals for the Eleventh Circuit joined a growing number of federal Courts of Appeals to reject arguments that class waivers contained in arbitration agreements should not be enforced in the employment context. In Walthour v. Chipio Windshield Repair LLC, the Eleventh Circuit (which covers Georgia, Florida, and Alabama) upheld a broad arbitration provision which required employees to bring all employment claims in their “individual capacity and not as a plaintiff of class member in a purported class or representative proceeding ….”

D.R. Horton Reversed by 5th Circuit

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Posted in Alternative Dispute Resolution

On December 4, 2013

On December 3, 2013, the Fifth Circuit Court of Appeals reversed the decision of the National Labor Relations Board (the “Board” or “NLRB”) in D.R. Horton, Inc. and held that D.R. Horton’s arbitration agreement prohibiting class or collective action claims did not violate the National Labor Relations Act (“NLRA”). In so holding, the court found that the Board did not give proper weight to the Federal Arbitration Act (“FAA”).

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