Representative Engagements

Consumer Class Actions

• Dohrmann et al v. Intuit et al.: Successfully represented Intuit in a Ninth Circuit appeal related to a putative class action alleging false advertising claims associated with Intuit’s TurboTax free filing option for tax preparation services. The Ninth Circuit reversed the district court’s decision, noting TurboTax's terms of service were clearly visible when users signed in on its website, and that the terms included a clause requiring disputes to be resolved through arbitration. Following this win, we successfully assisted Intuit in resolving the arbitrations.
• Twardzik v. NVIDIA: Successfully dismissed all claims by putative class that made allegations against NVIDIA’s sale of its high-end graphics processing units (“GPUs”). Plaintiffs alleged NVIDIA fraudulently mispresented and omitted characteristics about its GPUs in its advertisements and sales. We persuaded the court to dismiss the action because Plaintiffs failed to sufficiently plead their fraud-based claims. Plaintiffs moved for reconsideration, and we again successfully persuaded the court to deny Plaintiffs’ attempt to reopen the case. Plaintiffs have appealed.
• LeBoeuf v. NVIDIA: Successfully compelled arbitration of all claims by putative class that alleged NVIDIA’s high-end video graphics cards and CPUs were defective. Plaintiffs asserted that the claim fell outside the scope of the agreement because it was limited to software agreements. Fenwick persuaded the court that alleged performance deficits inherently required use of NVIDIA software and fell within the scope of the arbitration agreement. The Ninth Circuit affirmed.
• Johnson-Hammer v. Nectar Brand: Obtained dismissal of a putative class action alleging violations of California's Karnette Rental-Purchase Act and Unfair Competition Law Act brought against Resident Home, a company that owns and operates several direct-to-consumer brands in the home furnishings space, including Nectar and DreamCloud. The plaintiffs' petition for appeal was denied by the First District Court of Appeal.
• In re Lenovo Adware Litigation: Defended Superfish in a series of 27 federal lawsuits consolidated in the Northern District of California before Judge Whyte. Plaintiffs alleged that Superfish’s visual search technology violated their privacy rights and assert legal claims for violation of the Wiretap Act, California Penal Code, and unfair competition. The case settled.
• In re Carrier IQ Consumer Privacy Litigation: Represented lead defendant Carrier IQ in a multidistrict privacy class action that coordinated more than 70 lawsuits filed around the country. The plaintiffs claimed that Carrier IQ’s diagnostic software, which is embedded on a wide range of smart phones manufactured by Carrier IQ’s co-defendants, allowed the tracking and interception of consumers’ data and communications and leaked private text messages. Our team negotiated a favorable settlement that was entirely covered by insurance.
• Haskins v. Symantec: Won dismissal on the pleadings of a putative class action asserting false advertising and unfair competition claims based on Symantec’s (now NortonLifeLock) failure to disclose a security breach that allegedly exposed source code for Norton Anti-Virus software. The decision, affirmed by the Ninth Circuit, established a new standard for determining necessity of allegation that a plaintiff actually saw and relied upon purportedly false ads.
• Boorstein v. CBS Interactive: Secured a victory for client CBS Interactive in a widely watched privacy class action that ultimately led to the first court of appeal decision interpreting California’s Shine the Light Act. A fantasy football player sued CBS alleging the company violated a state law requiring it to disclose information about third-party vendors. Our team convinced the trial court to grant its demurrer without leave to amend, arguing that the plaintiff did not have standing to bring a claim against CBS and the suit should be dismissed. The California Court of Appeal agreed and affirmed our trial court victory. The Ninth Circuit subsequently affirmed the dismissal of four similar suits based on the California Court of Appeal’s decision in Boorstein.
• Horton v. GoPro: Defended GoPro in a warranty, false advertising and unfair trade practices class action related to its Hero3 video camera. Filed in the Middle District of Florida, the suit alleged that the Hero3 did not reliably and continuously record video as advertised based on GoPro’s online and on-package advertisements. The case resolved on a non-class basis after extensive informal discovery.

Complex Litigation

• HAHA Global, Inc. v. Intuit et al.: Represented Intuit in a breach of contract lawsuit filed in LA Superior Court. Our team compelled the suit to arbitration and successfully dismissed the complaint in arbitration.
• McKimmy v. OpenSea: Represented OpenSea in a lawsuit asserting claims for negligence, and breach of fiduciary duty and contract in the Southern District of Texas. We successfully compelled the suit to arbitration pursuant to the parties’ agreement.

Trademark Litigation

• Yuga Labs v. Ripps, et al.: Representing Yuga Labs, BAYC NFT collection creator, in a trademark lawsuit claiming two individuals created a fake NFT collection that points to images taken from Yuga. In March 2023, the Court ruled in favor of Yuga, striking all the defendants’ state-law counterclaims under the California anti-SLAPP law. The counterclaims stem from an earlier victory for Yuga, when the court ruled in favor of an anti-SLAPP motion, defeating the defendants’ argument that their infringing NFTs were a First Amendment–protected form of artistic protest.
• Innospan v. Intuit: Represented Intuit in a trademark lawsuit filed by Innospan seeking $25 million in damages and an injunction requiring Intuit to stop use of its Mint.com trademark. Fenwick secured a dismissal based on plaintiff’s litigation misconduct—a judgment affirmed by the Ninth Circuit.

Representative Clients

• Carrier IQ
• CBS Interactive
• GoPro
• Intuit
• NVIDIA
• OpenSea
• Symantec
• Yuga Labs