Ari N. Rothman

Latest Articles

Over the past few years, class action plaintiffs have filed a slew of lawsuits against online retailers under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), which prohibits a seller from offering or entering into consumer contracts that contain any term that violates a “clearly established” New Jersey or federal law. Violations are punishable by a maximum civil penalty of $100, actual damages, or both, and private actions can be brought…
The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification.  Thus, the Supreme Court could streamline putative class actions by eliminating the need for plaintiffs to file “protective” motions for class certification at the same…
Last week, Senators Al Franken (D-Minn) and Hank Johnson (D-Ga) revived the Arbitration Fairness Act (“Act”), which would ban arbitration provisions in consumer contracts, as well as employment, antitrust, and civil rights cases, and only allow the parties to agree to arbitration after the dispute arises.  The newfound interest in the Act demonstrates renewed opposition to arbitration as an alternative to litigation. If passed, the Act would have a clear impact on marketers’ ability to…
In Reliable Money Order, Inc. v. McKnight Sales Co., Inc., decided last week, the Seventh Circuit declined to overturn class certification of a Telephone Consumer Protection Act junk fax suit, despite class counsel obtaining discovery from a third party in one case and using it to spawn a series of other TCPA cases.  The plaintiff lawyer had assured a third-party vendor that it would treat the information produced lists of businesses to whom the…
Last week a California appeals court invalidated a car dealer’s mandatory arbitration and class waiver clause, holding the sales contract’s arbitration clause unconscionable and therefore unenforceable to defeat a putative class action.  In Natalini v. Import Motors, Inc. , plaintiff sued under state consumer protection statutes alleging that a car and its tires that he purchased from defendant were sold as new when in fact they were used.  When defendant Import Motors moved to compel…
The California appellate court’s decision in Balsam v. Trancos requires marketers nationwide using commercial email advertisements to include in the from line of each email either a domain name that is registered to the sender which can be determined by performing a WHOIS look-up, or the name of the sender or marketer on whose behalf the email was sent.  For example, the court found that an email that was sent using a privately/proxy registered domain…