Calif. supreme court saves consumer class actions

In a major victory for consumers, the California Supreme Court has unanimously cut back on corporations’ ability to toss out class actions.

Emergent LLP’s Peter Roldan served as counsel to Emergent’s client, Diana Nieves Noel, along with Public Justice, a nonprofit dedicated to consumer and worker rights.

The decision handed down in Noel v. Thrifty Payless, Inc., held that the "ascertainability" requirement for class certification does not require plaintiffs, including consumers and employees, to show all class members can be identified through official records in order to gain class action certification. The ascertainability standard defendants had advocated would have made it all but impossible for consumers to win class certification in the California courts

“This is an important ruling for consumers and employees. Corporations have used the stricter version of the ascertainability doctrine adopted by the California Court of Appeals a few years ago to eliminate plaintiffs’ right to use class actions. The result has been that corporate misbehavior has increasingly been ignored, as plaintiffs cannot afford to try these actions on individual basis.  We're glad the California Supreme Court has rejected this unfair standard,” said Mr. Roldan.

The suit at issue focused on the purchase of a $60 backyard pool from a Rite-Aid store. The pool was one-half the size of the product’s packaging. While the group of potential plaintiffs was easily ascertainable – 20,000 other California consumers bought the product from Rite-Aid – the trial court threw out the case claiming that because some purchasers used cash and didn’t keep receipts, Rite-Aid would not be able to identify them.

The Supreme Court reversed this decision, noting the importance of having a realistically obtainable class action certification standard. The court noted:

“Thus the true choice in this case is not between a single class action challenging the packaging of the Ready Set Pool and multiple individual actions pressing similar claims; it is between a class action and no lawsuits being brought at all.”

Mr. Roldan noted the ultimate impact impact of this decision: “Consumers and employees will now have a better chance of getting their day in court for corporate misbehavior.”

Email Peter (peter@emergent.law) or contact us to learn more about how Emergent LLP can help clients with potential consumer fraud claims.


SETH ROSENBERG OBTAINS $4.5 MILLION JURY VERDICT AGAINST EDM DJ SKRILLEX

A Los Angeles jury on Nov. 20 awarded Jennifer Fraissl $4.5 million in damages against DJ and producer Skrillex (real name Sonny John Moore), his touring company, Lost Boys Touring Company, Inc., and the Belasco Theater in Los Angeles.

Fraissl alleged that on February 11, 2012, Skrillex stage dove at the end of his set, causing her to be struck in the back of her head and neck. Although she was unaware of it at the time, the blow caused her to suffer a rare vertebral artery dissection, followed by a catastrophic stroke 16 days later.

The jury voted 12-0, finding all defendants negligent and responsible for Fraissl’s stroke.  The jury found Skrillex 35 percent responsible, Lost Boys Touring, Inc. 40 percent responsible, and the Belasco Theater 10 percent liable.  The jury awarded Fraissl $4.5 million in damages, which will be reduced to over $3.8 million because the jury found Fraissl 15 percent at fault. 

Fraissl was represented by Seth I. Rosenberg of Emergent LLP, and B. Mark Fong of Minami Tamaki LLP. Fraissl’s attorneys believe this is the first successful jury award in a case involving injuries resulting from a performer’s crowd dive.

Fraissl’s case faced numerous obstacles, including asking the jury to find the defendants liable for a blow that could not be seen on videos of the show, and which occurred in a setting where many people assume stage diving occurs. Fraissl’s attorneys also had to convince the jury that her stroke being caused by the blow to her head two weeks earlier was not only possible, but probable. Ultimately, credible expert and lay witnesses, plus a remarkably effective trial presentation prevailed.

“Skrillex caused Jennifer Fraissl to be injured, and the jury saw past his celebrity and wealth to hold him and the other defendants responsible,” said Rosenberg. “We presented a common-sense case despite attempts by the Skrillex team to blame the victim.”

Fraissl’s attorneys called experts from fields such as vascular neurology, interventional neuroradiology, security, and biomechanics to explain the complexity of arterial dissections and stroke, as well as crowd dynamics during a stage dive.

“Jennifer Fraissl showed that when the truth is on your side, David can beat Goliath,” said Fong. “We’re glad Jennifer persevered through this six-year-long case and are thankful to the jury and the judge for a fair and impartial trial.”

Jennifer Fraissl was represented by attorneys Seth I. Rosenberg of Emergent LLP and B. Mark Fong of Minami Tamaki LLP, and paralegal Brian Edgar, also of Minami Tamaki LLP.

The three battled a small army from international law firm Baker McKenzie, including five attorneys, a dedicated technology specialist, substantial litigation support, and endless resources.  The trial took five weeks and the jury deliberated for two days.

Email or call Seth (seth@emergent.law | (415) 894-9284 x104) or contact us to learn more about how Emergent LLP is helping clients navigate the field of complex litigation.

Emergent LLP Partner Chi-Ru Jou Interviewed on ICO Investor TV

Emergent LLP partner Chi-Ru Jou was recently interviewed on ICO Investor TV in New York City on the topic of the current regulatory environment for ICOs, security tokens, and cryptocurrency.  A video of the interview can be found here.  As part of Emergent’s Blockchain and Digital Currency practice group, Chi-Ru draws on her expertise as a securities litigator to advise clients on the latest developments in the industry and to keep them apprised of changes in the law and enforcement schemes.

Email Chi-Ru or contact us to learn more about how Emergent LLP is helping clients navigate the brave new world of blockchain technology.

Emergent LLP Partner Peter Roldan Publishes Article on Use of Bitcoin by Law Firms

Emergent LLP partner Peter Roldan heads Emergent’s Blockchain and Digital Currency practice group, which draws on the firm’s expertise in corporate and securities law, regulatory compliance, FinTech, intellectual property, privacy law, and cybersecurity.  Peter recently published an article in the Spring 2018 issue of San Francisco Attorney magazine entitled “Bitcoin: A Primer for Attorneys.”  The article, which can be found here, provides guidance to attorneys regarding the use of bitcoin in their practices.

Email Peter (peter@emergent.law) or contact us to learn more about how Emergent LLP can help clients involved in the burgeoning blockchain industry.

Supreme Court of California Grants Review of Emergent Class Action Case

On February 28, 2018, the Supreme Court of California granted the petition of Emergent LLP client James Noel to review the appellate decision denying certification of his class action lawsuit against Rite Aid, which sold Noel and 20,000 other California consumers an inflatable “Ready Set Pool” using packaging that deceptively exaggerated the size of the pool.  A copy of the petition, which includes photographs of the pool and packaging, is here.

The Supreme Court’s decision on Noel’s petition could affect numerous class actions brought under California’s consumer protection laws.  Rite Aid argued, and the appellate court agreed, that a class of pool purchasers could not be certified, because Noel had not shown that Rite Aid’s records contained enough contact information for the court to personally notify each class member of the lawsuit. 

This rationale would apply to every consumer class action and, Noel argued, would spell the end of consumer class actions in California.  Large retailers and manufacturers often do not retain individualized data about the sales of their products, and if consumer class actions could be defeated by an absence of contact information, companies likely to be sued for deceptive advertising, defective products, or any other mass consumer harm could insulate themselves by purging their purchase records or anonymizing those records so they retained the demographic information companies use to target their advertising, but eliminated the identifying information that would permit a class action.

The parties will submit their briefs to the Court between March and May, and the Court will then set a date for argument, likely in 2019.  Emergent partners Peter Roldan and Christopher Wimmer represent the late Noel, who passed away in 2016, and his widow.

Emergent LLP has an active appellate practice, representing parties in the Court of Appeals for the Ninth Circuit, California Court of Appeal, and Supreme Court of California, as well as amici curiae in the Supreme Court of the United States.  To find out whether Emergent can handle your appeal, contact us.

Emergent Partner Peter Roldan Argues High Profile D&O Insurance Appeal in the Ninth Circuit

Emergent LLP partner Peter Roldan represents corporate and individual policyholders in insurance coverage and bad faith litigation.  On February 13, Peter appeared before the Ninth Circuit for oral argument in HotChalk, Inc. v. Scottsdale Ins. Co., a much-discussed case that commentators believe “is likely to shape the scope of professional services exclusions.”  Law360 named it one of the three key D&O insurance cases to watch in 2018. 

Appearing on behalf of Emergent’s client, HotChalk, Inc., a leading online education platform that serves universities and students across the United States, Peter advocated for a reversal of the district court’s holding that HotChalk could only be liable for the claims alleged against it because of the professional services that it provided, even if, as was the case here, there was only a minimal causal connection or incidental relationship between the claim and HotChalk’s professional services.  This standard, if upheld, would essentially eviscerate D&O coverage for HotChalk and other professional service companies.

Peter argued that the professional services exclusion should only apply to claims arising out of a company’s provision of services to its clients and customers, and that it was not meant to exclude claims arising out of an insured’s internal business practices and management decisions.  Otherwise, professional service companies would find that their coverage was effectively swallowed up by the exclusion because almost everything they do is in some way tied to the services they provide.

Video of Peter's argument is available through the Ninth Circuit's YouTube channel.

Emergent also received support from policyholder advocacy group United Policyholders, which filed an amicus brief in connection with the appeal, seeking to reverse the trend of insurers stretching the professional services exclusion beyond its intended scope.

Peter's Ninth Circuit oral argument is the second Emergent partners have presented in the past three months; over that same period, the firm also argued two cases before the California Court of Appeal.  To find out whether Emergent can handle your appeal, contact us.