Category - "Fraud"

The Ninth Circuit Just Provided a Roadmap On How to Defend California Consumer Fraud Claims

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Companies that may face consumer fraud claims in West Coast courts will want to take a close look at the Ninth Circuit’s decision this month in McGinity v. Procter & Gamble Co., __ F.4th __, 2023 WL 3911531 (9th Cir. June 9, 2023).  The Ninth Circuit provided some much-needed clarity on how lower courts within its jurisdiction should reconcile two seemingly conflicting precedents on how to apply the “reasonable consumer” test to seemingly fanciful claims brought under California’s consumer fraud laws.

Seven years ago, in the pro-defense Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016), the Ninth Circuit upheld the dismissal of claims that the weight indicator on a tube of lip balm was misleading because some of the balm sits in the tube’s screw mechanism and thus is basically unusable.  In the legalese equivalent of “give me a break,” the Ninth Circuit noted California state appellate precedent holding that consumer fraud claims must be dismissed if it is improbable “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the challenged practice or language, and called the plaintiff’s lip balm claims “not plausible.”  Id. at 965.  The Ebner decision basically counseled district judges to be on the lookout for, and be ready to dismiss, a plaintiff’s allegations that reflect, at best, the reading “an insignificant and unrepresentative segment” of purchasers might give to a challenged advertisement or language on packaging.  Id. at 966.

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Trademark Strategy as a Tool to Combat Cybercrime

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It is an all-too-common occurrence: The phone rings and a panicked client on the other end of the line has been impacted by an online fraud. Fraud on the internet is carried out daily, with new and inventive methods of attack being put into practice to mask and conceal the crime at hand until it is “too late.” While we have all learned to identify and avoid certain suspicious behaviors, bad actors continue to develop new and inventive ways to procure sensitive data, receive payments under fraudulent pretexts and otherwise perpetrate crimes with the benefit of the relative anonymity and obscurity that is afforded by the internet.

According to the 2021 report from the FBI’s Internet Crime Complaint Center (IC3), the IC3 alone received more than 2.75 million complaints and reported losses of $18.7 billion from 2017 to 2021. See Federal Bureau of Investigation, Internet Crime Report 2021. Broader studies seeking to understand the global impact of such activities suggest total losses actually range in the hundreds of billions per year, depending on the study. Regardless of the source, one thing is clear: The cost of frauds resulting from spoofed websites designed to collect sensitive consumer data, email account compromise designed to extract payments from unwitting customers by sending apparently legitimate requests for invoice payment, and even more involved frauds are impacting clients by costing them real dollars, damaging their reputation and customer relationships, and otherwise putting a strain on their ability to conduct business.

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