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9th Cir. Says Arb. Clause Did Not Violate McGill Rule Because Consumer Can Get Public Injunctive Relief as an Individual in Arbitration

by Scott J. Hyman |

In DiCarlo v. MoneyLion, Inc., No. 20-55058, 2021 U.S. App. LEXIS 4817 (9th Cir. Feb. 19, 2021), the Court of Appeals for the 9th Circuit ordered a case to arbitration, finding that the arbitration clause did not violate the McGill rule. California's legal requirement that contracts allow public injunctive relief is known as the McGill rule. See McGill v. Citibank, N.A., 2… Read More

District Court (Cal.) Orders FCRA Claim Against Automobile Lender to Arbitration

by Scott J. Hyman |

In Camarillo v. Balboa Thrift & Loan Ass'n, No. 3:20-cv-00913-BEN-BLM, 2021 U.S. Dist. LEXIS 22351 (S.D. Cal. Feb. 4, 2021), Judge Benitez ordered an FCRA claim to arbitration. In the present case, Plaintiff never argues that the terms of the RISC were substantively or procedurally unconscionable. Reply at 13:11-12. To the extent she may try to advance such arguments now,… Read More

11th Cir. Declines Standing to Data Theft Victim

by Scott J. Hyman |

In Tsao v. Captiva MVP Rest. Partnres, Ltd. Liab. Co., No. 18-14959, 2021 U.S. App. LEXIS 3055 (11th Cir. Feb. 4, 2021), the Court of Appeals for the 11th Circuit held that a data theft victim had no Articile III standing. We begin with Tsao's theory that he has Article III standing because he faces a "substantial risk of identity… Read More

California Court of Appeal Holds Attorney Fees Incurred in Enforcing a Judgment May Be Recovered if the Judgment Includes an Award of Attorney Fees Pursuant to Contract

by Laszlo Ladi, Jr. |

In Chunlei Guo v. Moorpark Recovery Services, 2021 Cal. App. LEXIS 112, the Court of Appeal of California, First Appellate District, Division Five reversed a postjudgment order denying attorney fees under California Code of Civil Procedure § 685.040, which authorizes the recovery of attorney fees incurred for enforcement of a judgment when the underlying judgment includes an award of attorney… Read More

Ambiguity in the Privacy Policy and Terms of Use Undermine Defendant’s Motion to Dismiss Based on Article III Standing. Without Sensitive Information at Issue, Plaintiff Cannot Move Forward With an Intrusion on Seclusion Claim.

by Genevieve R. Walser-Jolly |

On February 2, 2021, Judge Susan Van Keulen, in the Northern District of California, denied in part and granted in part Defendant's Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA). Evaluating Article III standing based on Plaintiff's consent to Defendant's online privacy policy and terms of use, the Court held that: [i]f “the contract language… Read More

District Court (Cal.) says Plaintiffs are Entitled to Discovery on German Defendant’s Claim re Lack of Personal Jurisdiction. Under a Negligence Claim, the Sensitive Nature of Data Held By A Dating App Carried Plaintiffs over the Pleading Threshold for a Duty of Care and the Fact that the Breach Occurred was Sufficient to Plead the Element of Breach.

by Genevieve R. Walser-Jolly |

On January 28, 2021, Judge Alsup, in the Northern District of California, denied in part and granted in part Defendants' Motion to Dismiss.  Flores-Mendez et al v. Zoosk, Inc. et al. (N.D. CA; 3:20-cv-04929-WHA). Zoosk, a dating app, is a subsidiary of Spark.  Spark's principal place of business is in Berlin.  Spark filed a 12(b)(2) motion challenging the Court's personal… Read More

AB 335 – Proposed Amendment to the CCPA

by Genevieve R. Walser-Jolly |

On January 27, 2021, Assembly Member Boerner Horvath introduced AB 335 - California Consumer Privacy Act of 2018: vessel information. "Existing law, the California Consumer Privacy Act of 2018, grants a consumer various rights with regard to personal information relating to that consumer that is held by a business, including the right to direct a business not to sell, as… Read More

District Court (Cal.) Says Arbitration Clause in Automobile RISC Extends to FCRA Claims

by Scott J. Hyman |

In Camarillo v. Balboa Thrift & Loan Ass'n, No. 3:20-cv-00913-BEN-BLM, 2021 U.S. Dist. LEXIS 22351 (S.D. Cal. Feb. 4, 2021), Judge Benitez granted a petition to compel arbitration with respect to an FCRA claim arising out of an automobile RISC. In this case, neither party contends that (1) they lacked the capability to contract, (2) the RISC5 or Arbitration Provision… Read More

California DFPI Issues Invitation for Comments for CCFPL Rulemaking

by Laszlo Ladi, Jr. |

On February 4, 2021, the California Department of Financial Protection and Innovation (formerly DBO) issued an invitation for comments from stakeholders for rulemaking under the California Consumer Financial Protection Law (CCFPL), which became effective January 1, 2021. As previously discussed, for “covered persons” the CCFPL includes a broad list of prohibited conduct, including engaging in “unlawful, unfair, deceptive, or abusive… Read More

California’s DFPI Begins to Use its New Powers and Hire New Staff

by Laszlo Ladi, Jr. |

We previously posted about California’s new Department of Financial Protection and Innovation (“DFPI”) (formerly Department of Business Oversight) and some of its new powers to regulate debt collectors and other financial institutions under the Debt Collection Licensing Act and California Consumer Financial Protection Law (“CFPL”) (also known as the mini-CFPB). Both laws took effect on January 1, 2021. While the… Read More

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