9th Circuit Contract Law News - U.S. Ninth Circuit
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In a class action lawsuit that's sure to get heart rates up, a Florida man has alleged that Fitbit's technology is a fraud. James Brickman claims that the company duped him and others out of their cash by making false claims that it could track their sleep.

Fitbit sells wearable tech devices that track a consumer's steps, calories burned, distance covered and other data. Those features have made it a widely popular accessory amongst fitness nerds. The company also advertises a sleep tracking feature, promising "quantified sleep" and "quality data." According to the class action, however, the product's sleep tracking function does not and cannot do what it claims.

Sirius XM -- boy, it's great, isn't it? Satellite radio gives you a separate station for every decade since the wax cylinder was invented (you'll love their "1880s on 80" station). Plus, there's Howard Stern.

But Sirius comes with a hidden price, other than listening to Howard Stern: An arbitration agreement that purports to bind the consumer, as part of the 90-day free trial that comes with a new car.

In 2010, German gambler Konstantin Zoggolis had taken out credit from the Wynn casino in Las Vegas to the tune of about $1.3 million. Wynn said it was time to pay up; Zoggolis couldn't pay. I know you're thinking: "Why would Zoggolis sue Wynn? These were his debts! Of course he should have to pay them!" But there's more going on here.

The Nevada Gaming Commission allows a gambling patron to "self limit his access to the issuance of credit." Basically, a compulsive gambler can tell the casino, "No matter how much I ask, don't lend me any more money." Wynn and Zoggolis had an agreement that Wynn couldn't loan him any more than $250,000, but in spite of this agreement, the casino loaned him $1.05 million more in September and October 2010.

Tablet Fire Sale Leads to Shrinkwrap/Clickwrap/Browsewrap Confusion

A few years back, a firestorm hit the Internet -- and by a firestorm, I mean a fire sale. A tablet, with specifications on par with the high-end Apple and Android devices of the time, priced at $499.99 to $599.99, would go on sale for as low as $99, as HP had decided to scrap its Touchpad line a mere month after it launched.

Unsurprisingly, every retailer in the world sold out of Touchpads within hours. HP's now-dead tablet was the second-best seller of the year behind the iPad. And a few disgruntled customers, who had placed orders online, were left with nothing but sadness and a cancellation email when retailers like Barnes & Noble oversold their inventory.

Well, sadness and a lawsuit, that is. And an interesting issue of shrinkwrap/clickwrap/browsewrap contracts.

Rabbi S. Binyomin Ginsberg enrolled in Northwest Airlines' frequent flyer program and attained "Platinum Elite" status, the highest level, in 2005. Three years later, Northwest revoked his membership in the frequent flyer program because, according to the airline, he'd abused the program.

Ginsberg sued Northwest in federal court alleging breach of contract, breach of duty of good faith and fair dealing, negligent misrepresentation, and intentional misrepresentation. The district court held that all of the claims, except for breach of contract, were pre-empted by the Airline Deregulation Act ("ADA"), and dismissed the breach of contract claim, without prejudice, for failure to state a claim.

LinkedIn Litigation: Shrinkwrap Licensing Stretched to its Limits?

A gaggle of angry social networking professionals claim that LinkedIn "hacked" their email accounts, leading to a deluge of emails to their contact lists with invitations to connect with them on the social network, complete with their photo, name, and implied endorsement. They want the email spamming to stop.

LinkedIn, meanwhile, wants this litigation to stop, and argued in a motion to U.S. District Judge Lucy Koh (the judge who seems to be the de facto tech trial judge in Silicon Valley, who presided over the Apple v. Samsung trial and a Google privacy dispute, amongst others) that users gave them permission to access their email accounts.

Kozinski Crashes Nissan Leaf Settlement Party -- As a Plaintiff

Chief Judge Alex Kozinski, of the Ninth Circuit, bench-slaps lawyers and crashes class-action settlements on a semi-regular basis. This, however, was something different, as Kozinski's wrath wasn't felt from the bench -- he was an objecting plaintiff.

Nissan makes the Leaf, an all-electric car with an alleged 100-mile range. Unfortunately, the battery packs seem to either be partially defective, or simply have a shorter range than promised. Kozinski and his wife, Marcy Tiffany, purchased a 2011 Nissan Leaf, and the range wasn't even sufficient to make the 80-mile trek home, leaving them plugged in to a charger at a dealership fifteen miles short of their destination.

Toyota Loses Bid to Force Arbitration in Prius, Lexus Class Action

In 2010, the National Highway Traffic Safety Administration began a formal investigation into claims that 2010 Toyota Prius vehicles were experiencing momentary loss of braking capability. A few days later, Toyota announced a voluntary recall of the affected Prii and 2010 Lexus HS 250h vehicles to repair a software glitch that was the alleged culprit. According to the Plaintiffs, Toyota knew about the issues as early as June 2009 but did nothing.

The vehicles were purchased pursuant to written agreements with independent dealerships. Each agreement included a broad arbitration clause that allowed either party to choose arbitration, and allowed the arbitrator to decide the scope of the arbitration. The agreements also waived the right to participate in class action litigation.

Ninth Circuit Reduces Bratz Award, Tells Toymakers to 'Play Nice'

Bratz and Barbies may be friends in the toy box, but they're bitter enemies in the courtroom.

This week, the Bratz were back in the Ninth Circuit Court of Appeals again, in an appeal challenging the damages from the retrial of the last round of litigation over the dolls. Got that?

If not, we'll recap the pertinent details.

Bruce Matthews Loses NFL Lawsuit, Cal Workers' Comp Claim

Bruce Matthews played football in the National Football League (NFL) for 19 years, first for the Houston Oilers and later for its successor team, the Tennessee Titans (Titans). He retired in 2002. In 2008, Matthews filed for workers’ compensation benefits in California.

Matthews claimed pain and disability resulting from injuries incurred while he was employed by the NFL at “various” locations over years of “playing and practicing professional football.” He didn’t allege that he sustained any particular injury in California.