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FTC Rule on Automatic Renewals

FTC Rule Proposal on Automatic Renewals

FTC Rule on Automatic Renewals

The Federal Trade Commission (FTC) may soon pass new rules that strengthen federal protections for consumers who purchase products or services that are automatically renewed. The FTC rule proposal on automatic renewals would impose strict requirements on companies that offer automatic renewal subscriptions, or negative options, to consumers. Federal statutes and rules typically refer to automatic renewals as “negative options” because the absence of any affirmative action by the customer is enough to justify the auto-renewal. In other words, silence or inaction by the consumer is construed as acceptance of the auto-renewal contract. The amended FTC rule would make it easier for consumers to cancel their auto-renewal subscriptions, and it would impose civil penalties on companies that violate federal law.

For more information about the proposed amendments to the FTC Rule on Automatic Renewals, keep reading this blog.

What Is the Federal Law on Automatic Renewals?

California consumer protection lawyers are familiar with California’s Automatic Renewal Law (ARL), which regulates businesses that offer auto-renewing subscriptions to consumers in the state. The federal analogue to the ARL is the Negative Option Rule, which has been in effect in every state for 50 years. The Negative Option Rule is enforced through Section 5 of the FTC Act. In this context, automatic renewals are called “negative options” because sellers are allowed to interpret a customer’s silence as implied acceptance of an auto-renewal offer.

There are some major limitations on the Negative Option Rule. For example, the federal law only regulates prenotification plans. This means that the law only applies to companies that attach auto renewals to customer agreements before the sale of products or services.

FTC Proposes Amendment to the Federal Rule on Automatic Renewals

The FTC has proposed amendments to the federal Automatic Renewal Law. The suggested changes to federal law would have a significant effect on many state laws, especially in states that do not already regulate auto-renewal subscriptions. Some of the specific regulations that would be modified or added to federal law under the rule change include:

  • Mandatory upfront disclosures of auto-renewal plans.
  • Penalties for company misrepresentations about auto-renewal plans.
  • Obtaining consumer consent for enrolling in auto-renewal plans.
  • Annual reminders about automatic renewals.
  • Easier cancellation of auto-renewal plans.

Ultimately, the FTC will decide whether to approve or decline the proposed rule changes. The federal agency might also decide to make revisions and then open up the new amendment for public comments.

Auto-Renewal Disclosures

One of the biggest changes being proposed for federal law is to require businesses to disclose any auto-renewal terms in a way that ensures that customers will see the terms. The current federal law stipulates that businesses must place auto-renewal terms in “visual proximity” to a request for consent. By contrast, the new rules would require these disclosures to be “immediately adjacent,” or right next to, any text about customer consent so that the disclosures are easily noticeable or difficult to miss. In other words, companies won’t be able to hide the auto-renewal consent text.

Additionally, the proposed FTC rule calls for companies to disclose particular information before customers can legally consent to an automatic renewal plan:

  • Will payments be recurring?
  • What is the cost of the subscription, including the auto-renewals?
  • When will the subscription first automatically renew, and on what dates or at what intervals thereafter?
  • What is the deadline to cancel the subscription before it automatically renews?
  • What is the process for canceling the subscription?

The amended FTC rules would require companies to provide this information for all types of transactions involving recurring contracts, not just those occurring online. That’s because the rules would apply to offers made on the internet, in print publications and advertisements, during telephone solicitations, and in person at brick-and-mortar retail stores.

Misrepresentations About Auto-Renewal Plans

California consumer fraud lawyers will tell you that the state’s false advertising laws impose severe restrictions on the sales practices of companies that do business in the state. Companies that violate these laws may be subject to both civil liability and criminal penalties for egregious conduct. The proposed FTC rules would go a long way toward catching up with California’s regulations of companies that offer auto-renewal plans by applying federal regulations to misrepresentations about the entire sale agreement. For instance, the federal law would explicitly bar companies from misrepresenting a material fact related to any part of a transaction involving an automatically renewing subscription, even if the misrepresentation has nothing to do with the auto-renewal.

Consumer Consent for Auto-Renewals

The proposed changes to FTC rules would include a requirement that companies obtain affirmative consent from consumers before an auto-renewal contract becomes legally binding. Importantly, the customer’s consent for auto-renewal terms would have to be separate and apart from their consent for the transaction or purchase itself. For example, the business would not be able to hide the auto-renewal agreement or otherwise confuse the customer into thinking that they are only agreeing to the original purchase. As set forth by the recommended FTC rules, the request for affirmative consent from the consumer for the auto-renewal subscription would likely have to be a “check box, signature, or other substantially similar method.”

Additionally, companies will need to maintain a record of the customer-provided consent for a period of at least three (3) years from the date on which the subscription was first approved, or for one (1) year after the subscription has been cancelled.

Annual Reminders About Auto-Renewals

The FTC rule amendment under consideration would require companies to send annual reminders to customers about any auto-renewing subscriptions that involve products or services other than physical goods. The reminder must be sent annually even if it is not a yearly subscription plan. Additionally, these annual reminders would need to be in plain language that clearly identifies the product subscription or service being renewed, the dollar amount of the subscription, the frequency of the renewals, and the process for cancelling the subscription. The reminder would also have to be sent to the consumer in the same manner that they initially provided consent for the auto-renewal plan.

Cancellation of Auto-Renewals

The FTC rule changes would also require businesses to make it easy for customers to immediately cancel their auto-renewal subscriptions. For example, the cancellation option must use simple and easy-to-understand terms. The customer must also be given the ability to cancel through the same method they used to make the initial purchase, meaning that an online purchase could be cancelled on the company’s website.

Another requirement under consideration by the FTC is that companies would not be able to make any additional offers when a customer is attempting to cancel their auto-renewal subscription. These types of offers are known as “save attempts” because they tend to involve the business trying to save the auto-renewal subscription from cancellation. The idea here is that businesses should not be allowed to confuse customers with unclear terms or modifications that might dissuade them from cancelling their subscription.

FTC Rule on Auto-Renewals Regulates Business-to-Business Contracts

The California Automatic Renewal Law (ARL) is considered by many to be the strongest such law in the country, imposing requirements on businesses that go far beyond anything in current federal laws. In at least one way, however, the proposed FTC rule would actually go further than California’s ARL. That’s because the federal law would apply to both consumer transactions and business-to-business transactions.

FTC Enforcement of Federal Auto-Renewal Laws

Amendments to the federal law on automatic renewals would greatly strengthen the ability of the Federal Trade Commission (FTC) to enforce the law and crack down on violators. The FTC proposal would allow the government to seek restitution on behalf of consumers, as well as imposing civil penalties against companies that violate the law.

The federal law does not provide a civil remedy for individual consumers, but they can still seek financial compensation by filing a lawsuit based on state laws like the California Automatic Renewal Law (ARL). The federal law on auto renewals may also make it easier for consumers to file class action lawsuits under state law.

California’s Law on Automatic Renewal Offers

Companies that do business in California must follow stringent requirements when it comes to subscription renewals, including pre-transaction disclosures, affirmative consent, renewal notices, and cancellation policies. The purpose of the California Automatic Renewal Law (ARL) is to end the practice of ongoing charging of consumer credit cards without consumers’ explicit consent.

Some of the specific requirements that the California ARL imposes on companies include the following:

  • Cancellations: Customers must be permitted to cancel their subscriptions online if they initially signed up online. Additionally, the cancellation process must be easy, with no steps that might obstruct or delay the process.
  • Long-term subscriptions: If the subscription is for a period of at least one year before the initial renewal, businesses must send renewal notices to customers to ensure that they are informed. This notice needs to be sent at least 15 days before the subscription is scheduled to be renewed.
  • Free gifts or promotions: If there was a free gift, trial subscription, or promotional discount involved, the company must send a notice of renewal to the customer before the trial period is over.

Call the California Consumer Fraud Attorneys at Tauler Smith LLP

The California consumer fraud attorneys at Tauler Smith LLP represent plaintiffs in civil suits filed in both state and federal courtrooms throughout the country. If you were charged for an automatically renewing subscription that you did not authorize, we can help you pursue restitution and monetary damages. Call 310-590-3927 or email us to discuss your case.

Nationwide Mutual Insurance CIPA Lawsuit

CIPA Lawsuit Against Nationwide Mutual Insurance

Nationwide Mutual Insurance CIPA Lawsuit

A CIPA lawsuit was recently filed against Nationwide Mutual Insurance for illegal wiretapping and invasion of privacy, and now a federal judge in California has ruled that the case can proceed to trial. The U.S. District Court judge issued the ruling in response to a motion to dismiss the wiretapping claims under Section 631 of CIPA, or the California Invasion of Privacy Act. The civil suit alleges that Nationwide Mutual unlawfully allows a third party to eavesdrop on customer conversations on the insurance company’s website. Chat communications are allegedly monitored in real time, and the sensitive personal data from those conversations is allegedly stored and used for financial gain. These actions would constitute clear violations of California consumer privacy laws.

These days, it is common for many different types of businesses to violate the CIPA and other invasion of privacy laws. If you live in California and used the chat feature on a company’s website, you may be eligible to join a class action lawsuit for invasion of privacy. The Los Angeles consumer protection lawyers at Tauler Smith LLP can help you get financial compensation.

Nationwide Mutual Insurance Sued for Invasion of Privacy

The defendant in the recent invasion of privacy case is Nationwide Mutual Insurance Co., which is a corporation that offers insurance, retirement, investing, and other financial services and products to consumers in the United States, including residents of California. Nationwide operates a website: www.nationwide.com. The website has a chat feature, which customers can use to have online conversations with Nationwide. Sometimes, the customers who use the chat feature may share sensitive personal data with the company.

Third-Party Wiretapping of Customer Conversations

Nationwide Mutual Insurance has been accused of using a third-party company, Akamai or Kustomer, to embed code into the Nationwide website, which allows the third-party company to monitor and store transcripts of the conversations that occur through the chat feature. Akamai specializes in harvesting data from consumer conversations, which is believed to be the reason that Nationwide contracted with them in the first place.

Significantly, Nationwide does not inform customers who use the chat feature on the website that monitoring of conversations, storing of transcripts, or data harvesting occurs. Beyond that, Nationwide does not obtain customers’ consent for any of these activities.

Federal Judge Denies Motion to Dismiss Wiretapping Lawsuit Against Nationwide Mutual Insurance

The plaintiff in the consumer data privacy case is a California resident who used a smartphone to visit the Nationwide Mutual Insurance website and to communicate with Nationwide via the company’s website chat program. She filed her original legal complaint in Los Angeles County Superior Court, and the case was later removed to the U.S. District Court for the Central District of California.

Once the case arrived in federal court, Nationwide filed a motion to dismiss the complaint. The U.S. District Court recently held a hearing on the motion to dismiss. Although the Section 632.7 CIPA complaint was dismissed, the court ruled that the Section 631 CIPA complaint could move forward to trial. The court found that the plaintiff had stated a valid claim under § 631 of the CIPA because she plausibly alleged that Nationwide aided third-party Akamai in violating the consumer privacy statute.

What Are California’s Data Privacy Laws?

On top of having extremely strong consumer protection laws, California also has some of the strongest digital privacy laws in the country. The three most prominent statutes are the California Invasion of Privacy Act (CIPA), the California Consumer Privacy Act (CCPA), and the California Privacy Rights Act (CPRA). All of these data protection laws impose civil liability on companies that invade the privacy of customers. The CIPA imposes a requirement on businesses to obtain permission from customers before recording telephone and internet communications, including online chat conversations. The CCPA specifically prohibits businesses from sharing the personal information of customers with third parties, while the CPRA amended the law to increase the penalties for violating consumer privacy.

What Conduct Is Prohibited by the California Invasion of Privacy Act?

Although Section 631 of the California Invasion of Privacy Act (CIPA) is technically a criminal statute with criminal penalties, the Penal Code authorizes civil liability for violations of the law. This means that consumers whose confidentiality was invaded by a company doing business in California can potentially bring a civil lawsuit for monetary damages.

California courts ruling on CIPA claims have interpreted Section 631 to prohibit three types of conduct:

  1. Intentional wiretapping.
  2. Attempting to learn the contents of a communication in transit over a wire.
  3. Attempting to use information obtained as a result of wiretapping or monitoring of communications.

Additional requirements or elements of a CIPA violation include that the intentional wiretapping was done while the communication was in transit and that the communication was being sent from or received at a location within California. The prohibited conduct includes reading the contents of any message, report, or communication without the consent of all parties to that message, report, or communication. If one of the parties did not know that the chat or other type of communication was being monitored and/or wiretapped, then it would not be possible for them to provide consent or authorization. The bottom line is that eavesdropping on a conversation is a clear violation of Section 631 of the CIPA.

“Aiding” a Violation of the CIPA

Section 631 of the California Invasion of Privacy Act (CIPA) also imposes liability on any company that “aids” or assists another in violating the statute. The plaintiff in this case alleges that Nationwide Mutual Insurance “aided, abetted, and even paid third parties to eavesdrop” on her conversations. Moreover, she alleges that these privacy breaches happened not only with her communications, but also with other consumers’ communications on the Nationwide website.

Party Exception to § 631

There is a “party exception” to Section 631 of the CIPA. Courts have found that a party to a conversation cannot be liable for “eavesdropping” on that conversation. But this gets complicated when the conversation involves a third party. For example, if computer code on a website automatically directs a communication to a third party, the party exception won’t shield the third party from civil liability under the CIPA.

U.S. District Court: Nationwide Mutual Insurance May Have Violated California Invasion of Privacy Law

The plaintiff in the Nationwide Mutual Insurance data privacy case alleged that Nationwide violated the California Invasion of Privacy Act (CIPA) pursuant to California Penal Code § 631. Now, the U.S. District Court for the Central District of California has found that the plaintiff plausibly alleged that Akamai read the contents of her messages, which would constitute a violation of Section 631 by Nationwide for “aiding” in the wiretapping offense. Moreover, the court agreed that it is conceivable that Nationwide hired Akamai specifically to intercept messages and use them for Nationwide’s financial benefit. This would constitute “aiding” the illegal wiretapping by Akamai, which would lead to Nationwide itself being liable for violating the CIPA.

One theory put forward in the case is that Nationwide paid Akamai to “embed code” into the website that “enables Akamai to secretly intercept in real time, eavesdrop upon, and store transcripts” of messages sent via the website chat feature. In fact, it has been alleged that Akamai’s business model is to harvest data from transcripts of communications. Significantly, the federal court said that one inference from the plaintiff’s legal claim is that the personal information being harvested goes beyond mere “record information” like the consumer’s name, address, and subscriber number.

Akamai has been accused of intercepting customers’ messages as they are sent and received on the Nationwide website. The court found that these allegations are “plausible” based on Akamai’s public statements about their conduct. Additionally, the court said that the plaintiff clearly alleged that neither Akamai nor Nationwide Mutual Insurance had her consent to harvest personal data from communications on the Nationwide website.

Contact the California Consumer Protection Lawyers at Tauler Smith LLP

Anyone who used the chat feature on a company’s website may have been the victim of illegal wiretapping and privacy violations. If you are a California resident who visited a website, the Tauler Smith LLP legal team can help you. Contact our Los Angeles consumer fraud and false advertising attorneys today. You can call 310-590-3927 or email us.

Website Wiretapping & CIPA

California Invasion of Privacy Act & Website Wiretapping

Website Wiretapping & CIPA

It is important for consumers who interact with businesses online to have a solid understanding of the California Invasion of Privacy Act (CIPA) and website wiretapping. When you have a conversation with someone on the phone or via the computer, there is usually a reasonable expectation that the conversation will remain between the two parties. But what happens when what you believed to be a private conversation was actually being wiretapped, surveilled, and/or recorded by the other party? If this happens in the context of a business transaction, sales call, or online chat, your information could be sold to other companies that profit from the data. This has become a very serious problem in the internet era when personal data can be transmitted and circulated at a rapid pace. It’s one reason that California consumer privacy laws like the CIPA have become so important as tools to protect consumers against unethical business practices.

To learn more about the consumer protections against website wiretapping afforded by the California Invasion of Privacy Act, keep reading this blog.

What Is Website Wiretapping?

Wiretapping is a term used to describe the act of connecting a listening or recording device to a telephone. Website wiretapping occurs when the chat communications on a website are unlawfully recorded, transcribed, or surveilled without permission. These days, wiretapping technology is commonly used to secretly record conversations on websites that were supposed to remain private. Some of the reasons that people might illegally wiretap a website chat include gaining information about a business competitor, learning the details of an opponent’s lawsuit, or acquiring valuable data about a customer that can be sold to others.

Illegal wiretaps are not just against the law; they can also cause significant harm to victims. That’s why California allows individuals to file civil lawsuits against anyone who records their online conversation without consent.

California’s Law on Website Wiretapping: Section 631 of the CIPA

California has a number of very strong consumer protection laws that prohibit companies from jeopardizing the digital privacy and security of customers. Any company that does business in California needs to be completely transparent in their data collection practices, which includes obtaining proper consent from customers and website visitors before any personal information is shared online.

For example, California courts have held that it is a violation of California’s Invasion of Privacy Act (CIPA) for companies to wiretap user chats and other communications on websites. It is specifically a violation of § 631(a) of the CIPA when the intercepted communications contain what might be considered more sensitive than “record information” such as the user’s name, address, email, etc.

Additionally, Section 631 of the CIPA gives consumers a legal right to know when their phone conversation is being recorded, or when their online chat conversation is being monitored and transcribed. That is why a lot of companies provide automated warnings at the beginning of calls to alert customers to the possibility that the call may be monitored or recorded, and privacy policies on websites that disclose the monitoring of website chat communications with session recording technology.

Wiretapping on Websites:

Customers have a reasonable expectation of privacy when they visit a company’s website and use the chat feature. Their privacy rights are violated when a company wiretaps the online conversations, and they are further violated when that company allows third-party entities to eavesdrop on the chat conversations.

In recent years, many companies doing business online have been accused of breaching the privacy of individuals who visit their websites. When those websites are accessible to customers in California, the companies may be violating California’s very robust consumer privacy laws. Companies violate the California Invasion of Privacy Act (CIPA) by illegally wiretapping the conversations of website visitors.

Winning a CIPA Claim for Illegal Wiretapping

The simple fact is that a lot of businesses fail to provide clear warnings about the nature of phone conversations, online chats, or other communications with customers. When a business secretly monitors or records a conversation, the customer whose privacy rights were violated by the illegal wiretapping may be able to take legal action by filing a CIPA claim.

One element of a successful CIPA claim that the plaintiff will need to prove is that they had a reasonable expectation of privacy. Generally, the content and circumstances of the conversation can be used to determine whether such an expectation existed. This is where the court will examine a number of case-specific factors, including:

  • The identity of the person who initiated the conversation.
  • The purpose of the communication.
  • The duration of the conversation.
  • Whether there were prior conversations between the parties.
  • The type of information that was communicated.
  • Whether the party recording the conversation provided a warning.

Section 632(c) of the CIPA clarifies that when the parties to a communication reasonably expect to be overheard or recorded, it does not qualify as a “confidential communication” under the law.

Civil Remedies Available to Consumers Under the CIPA

As mentioned above, the CIPA includes both civil and criminal penalties for companies that violate the statute by unlawfully accessing, maintaining, or sharing customer data. For consumers who have been victimized, the civil penalties can be a valuable tool to get some sort of justice. The CIPA allows consumers to file civil lawsuits in California state court to recover damages of up to $5,000 for each invasion of privacy violation. Additionally, in some cases, the court may order the defendant to pay treble damages that total three (3) times the economic harm suffered by the consumer.

Criminal Penalties for Wiretapping in California

Violations of the wiretapping law can also result in criminal penalties. On the criminal side, the CIPA gives courts the ability to impose penalties such as monetary fines and even jail time. A person charged with a crime for monitoring and recording a private communication could be sentenced to up to three (3) years in the county jail.

The decision about whether to bring criminal charges against a business or individual for breaching your privacy rights by recording a conversation will ultimately be made by prosecutors and other law enforcement authorities. If charges are filed against the defendant, the case will be heard in criminal court. A knowledgeable attorney can help victims start this process, as well as helping victims decide whether to file a civil lawsuit to recover money damages either before or after resolution of the criminal case.

Other Data Privacy Laws in California

Data privacy has been a major concern of California lawmakers for a while now, which is why the state has tended to lead the way with this kind of legislation. In fact, the California Invasion of Privacy Act (CIPA) is just one of the state’s extremely strong consumer fraud laws with a focus on data privacy. The California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) are two other laws that explicitly protect customers against companies that overreach when it comes to sharing personal data. In fact, both the CCPA and the CPRA require companies doing business in the state to give customers the right to opt out of the sharing of their data.

Contact the Los Angeles Consumer Protection Lawyers at Tauler Smith LLP to File a Website Wiretapping Claim

Too often, companies doing business online choose to deliberately disregard the privacy concerns of customers who use their websites. Instead, these companies prioritize financial gains over consumer privacy and personal well-being. If you visited one of these websites and shared any information via a chat feature, you may be able to get statutory damages under the wiretapping provision of the CIPA.

The Los Angeles consumer protection lawyers at Tauler Smith LLP can help you file a website wiretapping claim. Call 310-590-3927 or email us to learn more.

Tom Girardi Indicted for Embezzlement

Tom Girardi Indicted for Embezzlement

Tom Girardi Indicted for Embezzlement

Disgraced California lawyer Tom Girardi was indicted for embezzlement by a federal grand jury. The charges stem from allegations that Girardi engaged in highly unethical and illegal behavior, which included using private judges affiliated with the national arbitration company JAMS to steal millions of dollars from his clients. The U.S. Department of Justice (DOJ) announced the felony charges against Girardi after the grand jury formally indicted him. U.S. Attorney Martin Estrada observed that Girardi “preyed on the very people who trusted and relied upon him the most—his clients—and brought disrepute upon the entire legal profession.”

For more information about Tom Girardi’s indictment and his connection with JAMS, keep reading this blog.

Who Are Tom Girardi and Erika Jayne?

Tom Girardi used to be a well-respected attorney. For many years, the prominent Los Angeles lawyer was known for being a dogged defender of the powerless as they filed class action lawsuits against corporations. As the founder of California law firm Girardi & Keese, he represented plaintiffs in a number of high-profile cases, including Brian Stow’s civil suit against Major League Baseball. Stow was the San Francisco Giants fan who sustained severe injuries during an attack at a Los Angeles Dodgers game. Girardi also represented the plaintiffs in the case against Pacific Gas & Electric Co. dramatized in the Julia Roberts movie Erin Brockovich.

Outside of the courtroom, Girardi became known for being the husband of “Real Housewives of Beverly Hills” star Erika Jayne, who eventually filed for divorce from Girardi. They were married for 21 years. After the split, the couple listed their Pasadena home for sale at a price of $13 million. Jayne has also been accused of illegally using funds meant for Girardi’s clients to cover her own personal expenses, including the purchase of expensive diamond earrings.

Federal Grand Jury in California Indicts Tom Girardi on Wire Fraud Charges

As a plaintiff’s attorney in California, Tom Girardi was responsible for negotiating settlements in mass tort lawsuits. Instead of sending the settlement funds to his clients, however, Girardi allegedly deposited the money into law firm accounts that he later accessed for his own personal use. A federal grand jury in California has now indicted Girardi on charges that he embezzled $15 million from clients over a period of 10 years, resulting in the DOJ bringing formal charges against him for five counts of wire fraud. If Girardi is convicted of wire fraud, he could be sentenced to 20 years in federal prison.

Martin Estrada, the United States Attorney for the Central District of California, issued a statement about the case after the grand jury indictment was announced. Estrada said that Girardi is “accused of engaging in a widespread scheme to steal from clients and lie to them to cover up the fraud.”

FBI Acting Assistant Director in Charge Amir Ehsaei also weighed in on the charges against Girardi. Ehsaei said that the disgraced attorney “created a mirage over several years in order to disguise the fact that he was robbing clients of large sums of money…to fund his lavish lifestyle.” Ehsaei observed that Girardi’s alleged theft came at the expense of clients who were enduring significant hardships of their own as they desperately awaited settlement funds to cover medical bills and other expenses. The clients’ unfamiliarity with the legal process made it possible for Girardi to take advantage of them.

What’s Next in the Criminal Case Against Tom Girardi?

Last year, Tom Girardi was reportedly diagnosed with Alzheimer’s and dementia. At his initial appearance in federal criminal court, United States Magistrate Judge Karen L. Stevenson ordered a mental competency hearing to determine whether Girardi is fit to stand trial on the criminal charges. In the meantime, Girardi’s bond was set at $250,000 and he was released to the custody of his brother Robert Girardi. The next hearing will occur in the U.S. District Court for the Central District of California.

The Girardi Keese law firm is no longer operational, having declared bankruptcy with more than $100 million in total debt. Additionally, Girardi was disbarred as a result of the alleged embezzlement and cannot act as an attorney in California. He has been living at the Belmont Village Senior Living Facility in Burbank, CA.

Erika Jayne and Others Accused of Business Fraud with Tom Girardi

Also criminally charged along with Tom Girardi is Christopher Kamon, who served as the chief financial officer of Girardi’s law firm for more than a decade. According to law enforcement officials, Kamon was the person who handled financial accounting for the firm. Federal prosecutors believe that Kamon committed wire fraud offenses by embezzling client funds for personal expenses.

Additionally, Girardi’s son-in-law David Lira has been accused of fraud in connection with the Girardi & Keese firm. A federal grand jury in Chicago issued an indictment against both Girardi and Lira on charges filed by the U.S. Attorney’s Office. They have been accused of stealing more than $3 million in settlement funds from clients whose families were killed in the 2018 Boeing Lion Air Flight 610 crash in Indonesia.

Erika Jayne Sued for Fraud

A civil suit has also been filed that accuses Tom Girardi’s estranged wife, reality TV star Erika Jayne, of participating in the illegal fraud scheme. The trustee overseeing the bankruptcy of Girardi’s law firm filed the lawsuit against the Real Housewives star after reportedly discovering that Jayne received $25 million in transfers from the law firm to her company, EJ Global LLC. She then allegedly used the money to pay personal expenses, such as her credit card bill, personal assistant salaries, and a fashion and makeup team. Jayne has denied having any knowledge of Girardi’s alleged embezzlement of client funds.

JAMS Mediators Allegedly Helped Tom Girardi Embezzle Money from Clients

According to the Department of Justice, Tom Girardi was able to get away with embezzling client funds by placing onerous requirements on clients to access their settlement money. For example, Girardi often told clients that they needed to get authorizations from JAMS judges in order to receive the funds. The JAMS private judges were overseeing the lawsuit settlements and had control over how and when the funds were distributed. Many of these judges had personal relationships with Girardi, creating an obvious conflict of interest for the alternative dispute resolution company.

Over the years, there have been many other instances of JAMS judges being biased in favor of certain litigants and showing favoritism in their rulings. In fact, several JAMS mediators and arbitrators benefited financially from their involvement in Girardi’s fraud by charging as much as $1,500 per hour for their work on his cases. Beyond that, JAMS reportedly made millions of dollars by providing mediators to oversee Girardi’s settlements.

Contact the Los Angeles Arbitration Attorneys at Tauler Smith LLP

Tauler Smith LLP is a California law firm that helps individuals, small business owners, and others bring class action lawsuits against JAMS. If you were involved in an arbitration or mediation that was administered by JAMS, you may have a legal claim against the company for the way they handled your case. Call 310-590-3927 or email us today to discuss your options with one of our experienced Los Angeles arbitration attorneys.

Goodyear Tires Wiretapping Lawsuit

Goodyear Tires Wiretapping Lawsuit to Proceed

Goodyear Tires Wiretapping Lawsuit

In a highly anticipated ruling, a federal judge in California recently denied Goodyear’s motion to dismiss wiretapping claims based on their use of third-party chat applications hosted on their website. This ruling allows the Goodyear Tires wiretapping lawsuit to proceed. The complaint alleges that when users visit www.goodyear.com/ and use the website chat feature, they share personal data in communications that are unlawfully recorded and transcribed. The plaintiff alleged that Goodyear was allowing a third-party company to intercept, eavesdrop, and store transcripts of the conversations, which is prohibited by the California Invasion of Privacy Act (CIPA).

Do you live in California? Did you use a chat feature on a commercial website? You may be eligible to file a civil suit for invasion of privacy and get financial compensation. Contact us now.

CIPA Claim: Judge Denies Motion to Dismiss Goodyear Wiretapping Lawsuit

The California Central District Court recently issued a ruling in a case involving allegations that Goodyear Tires violated the California Invasion of Privacy Act (CIPA) by wiretapping user chats on the company’s website. The federal court agreed with the plaintiff that the chat feature violated the CIPA, ruling that the plaintiff contends that Goodyear used a third-party service to “intercept in real time” website visitors’ chat conversations. The court added that the allegation that user messages were unlawfully intercepted “is to be taken as true at this stage of the case.”

In her CIPA claim, the plaintiff alleged that visitors to the Goodyear Tires website share “sensitive personal information” when they use the chat conversation. Significantly, the court ruled that the plaintiff pled sufficient facts for a claim under § 631(a) of the CIPA by showing that chat communications were intercepted, and those communications plausibly contained “more than mere record information” such as her name and address.

Wiretapping of Smartphone Communications

The California Central District Court also addressed the fact that the plaintiff accessed the Goodyear Tires website on her smartphone, which is considered a cellular phone with web capabilities. The federal court noted the precedent set by other courts that have applied § 632.7 of the CIPA to internet-based communications, ruling that the plaintiff has sufficiently alleged that users of Goodyear’s chat feature have a reasonable expectation of privacy because they share highly sensitive personal data.

California Has the Strongest Data Privacy Laws in the Country

California’s consumer protection laws include the California Invasion of Privacy Act (CIPA), the California Consumer Privacy Act (CCPA), and the California Privacy Rights Act (CPRA). The CIPA requires companies to get permission before recording any online chats, while the CCPA gives customers the right to prevent companies from sharing their personal data and the CPRA bolsters those digital privacy protections. California’s data privacy laws go even further by placing the onus on companies to make efforts to warn customers if their phone conversations or online chats are being monitored or recorded. In fact, California has some of the strongest such laws in the country. This may be why Goodyear’s terms of use include a forum selection clause requiring claims to be filed in another state: Ohio.

Goodyear Website Terms of Use

The Goodyear Tires website has a “Terms of Use and Privacy Policy” hyperlink at the bottom of the homepage. Site visitors can only see this link by scrolling all the way down on the website. When a user clicks on this link, they are directed to a “Terms, Conditions & Privacy Policy” page that includes another link for Terms of Use. There is no option for the user to click a button acknowledging that they have read the terms of use. Buried deep on this page is a section on “Applicable Laws,” which includes a forum selection clause stating that anyone who uses the Goodyear website automatically consents to litigating any legal disputes in an Ohio courtroom.

Goodyear Forum Selection Clause

In a recent lawsuit filed in California by Los Angeles false advertising attorney Robert Tauler against Goodyear, the tire company attempted to get the case moved to a jurisdiction with less stringent consumer protection laws. Goodyear specifically requested that the venue be changed from the U.S. District Court for the Central District of California to the District Court for the Northern District of Ohio.

Goodyear Tires argued that the plaintiff already agreed to having any legal proceedings handled in Ohio because she used the Goodyear website and automatically consented to the forum selection clause contained in the website’s “Terms of Use.” Robert Tauler responded on behalf of the plaintiff and persuasively argued that it was not possible for the plaintiff to legally consent to the forum selection clause because there was neither actual nor constructive notice of the “Terms of Use.”

The California federal trial court hearing the case ultimately rejected Goodyear’s motion to change venue, which means that the case will be adjudicated in the California Central District Court and decided under California’s very strong invasion of privacy and consumer protection laws. The court gave several reasons for ruling in favor of the consumer-plaintiff and against Goodyear, including contract formation laws which require mutual assent in order for a contract to be binding on both parties.

Are Internet Contracts Legally Enforceable?

The Ninth Circuit Court of Appeals previously identified two categories of internet contracts like the Goodyear terms of use:

  1. Clickwrap Agreements: Site visitors must check a box to confirm that they agree with the website’s terms and conditions of use.
  2. Browsewrap Agreements: Site visitors are able to click on a hyperlink that will take them to a page with the website’s terms and conditions of use.

An important aspect of browsewrap agreements is that it is possible for a site visitor to continue using a website without knowing that the agreement even exists. That’s because browsewrap agreements like the one on the Goodyear Tires website do not require site visitors to take any affirmative action. This creates a legal issue for internet contracts that rely on browsewrap agreements since users might not have an opportunity to assent to the terms of use. Courts have held that such a contract can only be valid if the website user had either actual or constructive notice of the terms and conditions.

Goodyear Browsewrap Agreement

The Goodyear browsewrap agreement does not qualify as a valid, legally binding internet contract because the website terms of use are inconspicuous: the hyperlink can only be seen when the user scrolls to the bottom of the page, and the text does not stand out against the background colors. This does not provide the user with sufficient notice. In Wilson v. Huuuge, Inc., the Ninth Circuit Court of Appeals held that courts should not enforce a similar smartphone app agreement “where the terms are buried at the bottom of the page or tucked away in obscure corners of the website.”

Additionally, there is nothing on the Goodyear Tires website that requires the consumer to click a button, check a box, or take any other action that would unambiguously convey their assent to the terms of use. This also means that site visitors are not provided with constructive notice of the website terms of use which they are supposedly agreeing to abide by.

Class Action Lawsuit Against Goodyear Tires for Violating California’s Wiretapping Law

When you visit a website, you have an expectation that your personal data will be protected and that any conversations you have on the website will remain confidential. The Los Angeles consumer protection attorneys at Tauler Smith LLP help clients file CIPA claims both individually and in class action lawsuits against companies that violate California’s data privacy laws. For example, our attorneys have represented individuals whose data was compromised due to illegal wiretapping and eavesdropping, including chat conversations on company websites.

The CIPA is a criminal statute that subjects companies to criminal penalties, including jail time and substantial fines. Victims can also bring civil lawsuits to recover statutory damages of $5,000 for each illegally recorded conversation. In some cases, it may be possible to recover treble damages, meaning that plaintiffs are eligible for up to three (3) times the total economic damages caused by the invasion of privacy.

Contact the California Consumer Protection Attorneys at Tauler Smith LLP Today

Did you use the chat feature on the Goodyear Tires website? Did you use a chat feature on any other commercial website? If so, your personal data may have been unlawfully recorded without your consent and in violation of both state and federal wiretapping laws. The California consumer protection lawyers at Tauler Smith LLP can help you. Call 310-590-3927 or send an email to learn more and find out if you are eligible to file a CIPA claim.

California Invasion of Privacy Act

California Invasion of Privacy Act (CIPA)

California Invasion of Privacy Act

It is quite common these days for businesses to monitor and record phone calls with customers, whether it’s to ensure that orders are accurate, to review employee interactions, or for some other reason. At the same time, new technologies have made it easier than ever to eavesdrop on private communications. Unfortunately, this has resulted in some companies going too far by invading the privacy of customers. The California Invasion of Privacy Act (CIPA) is a state law that makes it illegal for businesses to wiretap consumer communications and record you without your consent. Businesses that violate the CIPA may be subject to both criminal and civil penalties, including a lawsuit filed by any consumers whose conversations were wiretapped or recorded without permission.

To learn more about the California Invasion of Privacy Act, keep reading this blog.

What Is California’s Invasion of Privacy Law?

California has the nation’s strongest consumer protection laws, including the California Invasion of Privacy Act (CIPA), the California Consumer Privacy Act (CCPA), the California Privacy Rights Act (CPRA), the California Consumers Legal Remedies Act, and the California Unfair Competition Law (UCL). The CCPA was enacted in 2018 to become the nation’s first state privacy law, and it strengthened protections for customer data collected by businesses online. The CIPA has a longer history, having been passed by the California State Legislature in 1967 for the purpose of more broadly protecting the privacy rights of all state residents, including consumers. Under the CIPA, it is illegal for companies to wiretap or record conversations unless all participants have consented to the recording. This applies to telephone conversations and online communications.

Cell Phones

Although the wiretapping law was initially intended to cover calls on landline phones, the use of cellular phones has been addressed by the statute. Cal. Pen. Code sections 632.5 and 632.6 specifically prohibit the use of a recording device when a call involves a cellular phone, whether it’s two cell phones or one cell phone and one landline phone.

Websites & Session Replay Software

In addition to recording phone conversations, a lot of companies also keep records of their interactions and communications with customers who visit a company website. This becomes problematic – and possibly illegal – when the company uses session replay software to capture visitor interactions with their website. That’s because the use of this type of tracking software may constitute an unlawful intercept of the communication, as defined by California’s wiretap law.

Session replay software allows website operators to monitor how a user interacts with the website. The tool then reproduces a video recording that shows the user’s interactions, including what they typed, where they scrolled, whether they highlighted text, and how long they stayed on certain pages. When companies employ this software, the very fact that a machine is being used to intercept customer communications constitutes a violation of the CIPA.

California Penal Code Section 631: Wiretapping

California Penal Code Section 631 forbids anyone from illegally wiretapping a conversation. The law specifically prohibits the following:

  • Using a machine to connect to a phone line.
  • Trying to read a phone message without the consent of all the parties participating in the conversation.
  • Using any information obtained through a wiretapped conversation.
  • Conspiring with another person to commit a wiretapping offense.

Some states allow a call to be recorded when just one participant is aware of the wiretap and consents to it, even if the person recording the call is the one providing consent. But California is a two-party consent state, which means that everyone involved in the call or chat must agree to it being recorded. If just one party does not provide consent, then recording the conversation constitutes a violation of the CIPA and can result in both criminal and civil penalties.

Out-of-State Businesses

Even if the person who called you or chatted with you was not located in California, you can still bring a lawsuit under the Invasion of Privacy Act as long as you were in the state at the time of the call or chat. That’s because out-of-state businesses must still comply with California laws when communicating with someone who is in the state.

California Penal Code Section 632: Eavesdropping

Section 632 of the California Penal Code addresses the crime of eavesdropping. Many times, a wiretapping case also involves eavesdropping offenses where the offending party both taps a phone line and listens in on the conversation. The main difference between the two is that eavesdropping does not necessarily involve the tapping of a phone line.

The statute defines “eavesdropping” as the use of a hidden electronic device to listen to a confidential communication. Significantly, the law is not limited to phone conversations. When someone intentionally eavesdrops on an in-person conversation, they may be subject to criminal charges and a civil suit for damages. The types of electronic devices that are often used to illegally eavesdrop include telephones, video cameras, surveillance cameras, microphones, and computers. If the device was concealed from one of the parties, it may constitute a violation of California’s eavesdropping laws.

Can You Sue for Invasion of Privacy in California?

Although the California Invasion of Privacy Act is technically a criminal statute, Cal. Pen. Code §637.2 gives victims of wiretapping and eavesdropping the ability to bring a civil suit against the person or company that illegally recorded the conversation. If you learn that someone was listening in on your private conversation without permission, you may be able to file a lawsuit to recover statutory damages.

How to Prove Invasion of Privacy Under the CIPA

To win your CIPA claim, you will need to prove that the conversation was illegally recorded in the first place. In some cases, this will be obvious because the business will reveal that they are monitoring and recording the call or chat. In other cases, consumers may learn about illegal wiretapping during the discovery process when the defendant is forced to turn over company records.

The other elements of a CIPA claim that you will need to establish at trial include:

  • The defendant intentionally used an electronic device to listen in on and/or record the conversation.
  • You had an expectation that the conversation would not be recorded.
  • You or at least one other person on the call did not consent to having the conversation recorded.
  • You suffered some kind of harm or injury as a result of your privacy rights being violated by the defendant.

The use of a cellular phone can change the burden of proof needed to win a CIPA claim. That’s because courts will typically use a strict liability standard when at least one of the participants on the call was using a cell phone. This means that the context and circumstances of the call won’t matter; the court will automatically presume that there was an expectation of privacy. Additionally, strict liability will apply to the defendant even when they did not realize that the other person on the call was using a cell phone.

What Is the Penalty for Invasion of Privacy?

The criminal penalties for violating the California Invasion of Privacy Act (CIPA) include possible jail time and significant fines. Businesses that violate the CIPA may also be exposed to civil penalties when a consumer files a lawsuit in state court.

Criminal Penalties

The CIPA gives criminal prosecutors wide latitude to charge an offense as either a misdemeanor or a felony, depending on the facts of the case. If a CIPA violation is charged as a misdemeanor, the defendant could be sentenced to one year in jail and ordered to pay up to $2,500 in statutory fines for each violation. If the violation is charged as a felony, the possible jail time could increase to three years. Additionally, anyone convicted of a second wiretapping offense could face more substantial fines.

Civil Penalties

The CIPA lists statutory penalties that may be imposed against companies or individuals who violate the statute. The court can order the defendant to pay $5,000 in statutory damages for each illegally recorded conversation, or three (3) times the actual economic damages you suffered because of the privacy breach. The judge in your case will have the option to choose whichever amount is greater: the statutory damages or the actual damages.

Depending on the circumstances of your case, you might also be able to file a right of publicity lawsuit. That’s because right of publicity claims and invasion of privacy claims often overlap, especially when a business attempts to profit from someone else’s image or likeness without consent.

California Invasion of Privacy Statute of Limitations

It is very important that you take immediate action and speak with a qualified consumer protection attorney as soon as you suspect that a company may have violated your privacy during a communication. That’s because the California Invasion of Privacy Act (CIPA) requires plaintiffs to file a civil suit within one (1) year of the date on which the conversation happened. Failure to bring your case before one year has passed could result in your lawsuit being dismissed.

The statute of limitations period typically begins when the plaintiff knew about the defendant’s illegal wiretapping. But what happens when the plaintiff did not learn about the invasion of privacy violation until later? In these cases, the court usually applies a reasonable person standard, which means that the court will attempt to determine the point at which a reasonable person standing in the shoes of the plaintiff would have known about the unlawful act by the defendant. In other words, should the plaintiff have discovered the privacy violation before the statute of limitations expired?

Contact the Los Angeles Consumer Protection Lawyers at Tauler Smith LLP

If a company invaded your privacy by secretly recording a conversation without your permission, you may be eligible to file a civil suit to recover statutory damages. The first step you should take is to speak with an experienced Los Angeles consumer protection attorney at Tauler Smith LLP. We can help you decide how to best proceed with your case.

Call 310-590-3927 or email us today.

Diet Supplement Criminal Penalties

DNP Distributor Gets Prison for Selling Deadly Diet Pills

Diet Supplement Criminal Penalties

In recent legal news, a DNP distributor was sentenced to prison for selling the deadly diet pill to consumers. Barry Clint Wright used to run a website called CrystalDNP.com, which he used to reach consumers who would purchase the diet pill DNP. Wright was accused of using deceptive marketing strategies for DNP, which included mislabeling the drug and selling it on websites for candles and bee pollen. Like a lot of unapproved weight loss supplements, the DNP pills posed significant health risks for users: multiple people died after consuming the pills sold by Wright. As a result, Wright eventually pleaded guilty to the criminal charges and was sentenced to a term of incarceration of seven (7) years.

California consumer fraud lawyer Robert Tauler provided commentary on the Barry Clint Wright criminal case, which can be viewed here.

DNP Is a Deadly Weight Loss Drug

DNP is a chemical substance also known as 2,4-Dinitrophenol. When ingested, DNP can have severe health consequences for users, including cataracts, cardiac arrhythmia, and even death. In fact, DNP is considered so dangerous that the U.S. Food and Drug Administration (FDA) has declared it to be “extremely dangerous” and “not fit for human consumption.” In this way, DNP is similar to other nutritional and weight loss supplements that can cause adverse health effects. Additionally, when companies sell unapproved supplements for use by consumers, the companies may be both criminally and civilly liable.

Although there are some people like Barry Clint Wright who have claimed that DNP is not dangerous for consumption, those people are wrong. The evidence on DNP is clear: the drug is extremely unsafe and poses significant health risks to consumers, which is why the FDA has made it illegal to market, sell, or otherwise distribute the weight loss drug.

Companies that violate the law by deceptively marketing DNP and then selling it as a dietary supplement may be exposed to civil liability. The experienced consumer fraud lawyers at Tauler Smith LLP help plaintiffs file nutritional supplement lawsuits in courtrooms throughout the country.

Barry Clint Wright Sentenced to Prison for Selling DNP to Consumers

Barry Clint Wright was recently sentenced to seven (7) years in prison for selling DNP as a weight loss drug. Wright was criminally indicted in the U.S. District Court for the Middle District of Florida, a federal court with jurisdiction in the case. The crimes that Wright was indicted for related to the sale of DNP and how he marketed the weight loss drug to consumers. He later reached a plea agreement with federal prosecutors, in which he admitted his guilt.

What makes this case so interesting is that the federal government sought an enhancement of the federal sentencing guidelines. In this case, prosecutors wanted the judge to issue a sentence longer than what the guidelines called for. They did this because the way that Wright marketed DNP was particularly egregious and exposed consumers to significant health risks. The government said that Wright failed to label the product accurately, and he also sold it on multiple websites. Moreover, the government said that three (3) customers died after using the DNP – with the possibility that more customers may have died. Beyond that, Wright was accused of using “sophisticated tactics” to ensure that the dangerous diet pill would go unregulated. (E.g., he sold the DNP on a candle website and asked customers to claim that they were buying candles.)

The federal judge ultimately agreed with prosecutors and sentenced Barry Clint Wright to the maximum statutory sentence of seven (7) years in prison.

Contact the California Dietary Supplement Lawyers at Tauler Smith LLP

DNP has dangerous side effects, and the people who mislabel DNP and sell it as a weight loss pill are engaging in criminal activity. If you purchased DNP for use as a diet pill, you may be eligible to file a civil suit against the manufacturer or distributor. Call or send an email to the California dietary supplement lawyers at Tauler Smith LLP today.