Michael L. Mallow
MICHAEL MALLOW is the co-leader of Sidley’s Consumer Class Action Defense practice. Michael is a highly experienced trial lawyer who has represented clients in complex litigation and class action matters, including cases related to economic product defects, unfair competition, false and deceptive advertising, business torts, privacy, entertainment and intellectual property. He has defended consumer protection actions and investigations initiated by the Federal Trade Commission, the U.S. Department of Justice, Consumer Product Safety Commission and Federal Communications Commission, as well as numerous state enforcement agencies. Michael has served as the State Bar of California’s outside counsel on issues related to its member programs.
For nearly 20 years representing clients in consumer protection matters, Michael has been at the forefront of many significant consumer protection issues, including defending the first enforcement action prosecuted by the FTC related to the National Do Not Call Registry, securing a major automotive industry victory before the United States Court of Appeals for the 10th Circuit mooting injunctive claims for relief brought by private plaintiffs following a product recall and convincing the West Virginia Supreme Court that Internet classified ads constitute an express invitation for the purposes of defeating a federal Telephone Consumer Protection Act class action. He regularly counsels clients on marketing and advertising issues and has substantial experience in the automotive, fashion retail, dietary supplement, telemarketing, electronic mail marketing, consumer products and payment processing industries.
The recipient of multiple accolades including “Privacy & Consumer Protection MVP” by Law360 (2012) and “BTI Client Service All-Star” by BTI Consulting Group (2012), Michael was named to the Southern California Super Lawyers in Class Action/Mass Torts, Business Litigation and Civil Litigation Defense (2005–2016), Chambers USA’s America's Leading Lawyers for Business in California Litigation: General Commercial (2012–2016), The Legal 500 US in Marketing and Advertising, (2012–2013), The Legal 500 US in Technology: Data Protection and Privacy (2013), the Highest “AV Preeminent (5 out of 5)” Professional Rating, Martindale-Hubbell Law Directory Recipient and the President's Volunteer Service Award from the President's Council on Service and Civic Participation.
Michael earned his J.D. with honors from the George Washington University School of Law, where he was the associate editor of The George Washington Journal of International Law and Economics. He graduated with a B.A. from the State University of New York at Binghamton. Michael is an avid marathoner, triathlete and a three-time Ironman, completing Ironman Boulder in 2014, Ironman Cozumel in 2015 and Vineman Ironman in 2016.
Economic Product Defect Class Actions
Michael has extensive experience representing auto manufacturers/distributors in economic defect class actions alleging that the failure to disclose alleged defects constitutes a violation of various consumer protection and warranty laws, including California’s Consumer Legal Remedies Act, Unfair Competition Law and Song Beverly Consumer Warranty Act. He has defended class actions filed against Toyota, Honda, Mazda, Subaru, Hyundai, Ford, as well as other manufacturers based on defect allegations related to anti-lock brakes, fuel tanks, headlights, window regulatory assemblies, fuel gauges, air bags, valve springs, low profile tires and excessive oil consumption and cyber security.
Representative highlights include:
- In re: Takata Airbag Products Liability Litigation, Southern District of Florida: Representing Honda in the high-profile multidistrict litigation In re: Takata Airbag Products Liability Litigation, which may be the largest automotive multidistrict litigation ever filed. After the NHTSA issued an October 2014 warning that Takata-manufactured passenger-side airbags installed in millions of vehicles in the United States were subject to explosions, plaintiffs’ lawyers began filing cases across the country against major automotive companies, alleging violations of state and federal laws related to the airbags. In February 2015, these cases were consolidated into an MDL in Florida.
- Petersen v. Mazda Motor of America, Inc., 44 F.Supp.3d 965 (C.D. Cal. 2014), wherein Mazda successfully convinced Central District of California Judge David O. Carter to change his position on the applicability of Mexia v. Rinker Boat Co., Inc., 174 Cal.App.4th 1297 (2009) to implied warranties under California's Song Beverly Consumer Warranty Act, requiring the plaintiff to plead facts that would establish that a claimed defect manifested within the one-year time limitation set forth in the Act.
- Toyota Motor Corp. Hybrid Brakes, 915 F. Supp. 2d 1151 (C.D. Cal. 2013) and Toyota Motor Corp. Hybrid Brakes, 959 F. Supp. 2d 1244 (C.D. Cal. 2013), where Toyota successfully obtained denial of class certification and summary judgment on all claims in class action alleging the anti-lock braking system in second and third generation Prius vehicles was defective.
Winzler v. Toyota Motor Sales, USA, Inc. et. al., 681 F.3d 1208 (10th Cir. 2012), wherein the Tenth Circuit Court of Appeals dismissed as moot a proposed nationwide consumer class action after Toyota initiated a recall of certain vehicles to address stalling issues. Before the recall, Toyota successfully obtained dismissal of the case, with prejudice, when the district court held that the plaintiff lacked standing because she neither experienced manifestation of the alleged defect nor presented her vehicle for repair.
Marketing and Advertising Class Actions and Regulatory Actions
Michael regularly defends class and regulatory actions alleging that a company and/or individual engaged in false or deceptive marketing. Often such claims involve allegations that products or services lack adequate substantiation or failed to disclose material information. Michael has defended claims involving allegedly false or deceptive representations related to fuel efficiency (MPG), dietary supplement products, wellness devises, food products, direct marketing (MLM) businesses, mobile communication carrier fees, and guarantees and warranties.
Examples of such class actions include:
- George v. National Collegiate Athletic Association 945 N. E. Sd 150(Ind. 2011), George v. National Collegiate Athletic Association, 623 F.3d 1135 (7th Cir. 2010), wherein the NCAA successfully obtained dismissal of a class action alleging that the NCAA’s ticket distribution process constituted and unlawful lottery in violation of the Federal civil RICO law, California's Unfair Competition Law and Indiana's Deceptive Trade Practices Act.
- Shop-Vac Marketing and Sales Practices Litigation, MDL No. 2380 (MD PA), a pending multi-district litigation involving allegations that certain representations related to wet-dry vacuums are false and deceptive.
- FTC v. Merchant Services Direct LLC et al., CASE NO. 13-CV-0279-TOR (ED Wash), in which Michael successfully defeated the FTC’s attempt to secure a temporary restraining order, imposition of a court-appointed receiver and asset freeze that would have restricted the defendants from selling their services to businesses and prevented the company and individual defendants from having access to their assets based on allegations that the defendants used deceptive advertising to convince small businesses to purchase their services, while hiding actual fees and falsely promising discounted rates.
Telephone Consumer Protection Act (TCPA) and Privacy Class Actions and Regulatory Actions
Since the late 1990s, Michael has been advising and defending clients related to Federal TCPA issues. He has defended class actions based on junk faxes, pre-recorded voice mail messages, mobile calls and text messages. Michael also defends companies sued for allegedly improper call recording, collecting personal information in violation of California’s Song Beverly Credit Card Act of 1971 and allege violations of the Federal Children's Online Privacy Protection Act (COPPA).
Notable representations include:
- Gomez v. Campbell-Ewald Company, Central District of California: Defended Campbell-Ewald (C-E) Company in a putative class action alleging that a text message recruiting campaign that C-E undertook for its client the U.S. Navy violated the TCPA. The district court granted C-E’s motion for summary judgment, but plaintiff appealed to the Ninth Circuit, which reversed the decision. The case was then appealed to the U.S. Supreme Court with other counsel, and the Justices confirmed the reversal in a precedent-setting decision.
- Mey v. The Pep Boys, et. al., 717 S.E.2d 235 (W. VA 2011), where the West Virginia Supreme Court affirmed the dismissal of the Pep Boys in a case alleging the Pep Boys violated the TCPA.
- Levitt v. National Consumer Council, et. al., CA 03-000110 (D.C. Superior Court), involving a denial of class certification of a TCPA claims related to alleged violations of the TCPA based on pre-recorded messages in an action that was litigated in 2003.
- White v. EdebitPay LLC, et. al, 2:11-CV-06738 (FFMx) (CD CA), involving a consumer class action alleging violations of the Electronic Communications Privacy Act, invasion of privacy, and various state law claims.
*Certain matters were handled prior to joining Sidley.
- “Strategic Defense Considerations in Light of Spokeo,” Bloomberg BNA Privacy and Security Law Report (June 27, 2016).
- “Supreme Court to Ninth Circuit in Spokeo—Get ‘Real’ on Injury,” Bloomberg BNA: Privacy and Security Law Report (May 23, 2016).
- “Federal, Calif. 'Slack-Fill' Laws Ensure Fill Of Litigation,” Law360 (November 18, 2015).
- “‘Market Actions’: Benefits and Pitfalls Of Mooting Class Actions With Private Remedies,” BNA's Product Safety & Liability Reporter (February 2015).
- “CAFA: Recent Developments on the Jurisdictional and Settlement Fronts,” Competition, The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, Vol. 23, No. 2 (Fall 2014).
- “Class Action Roundtable,” California Lawyer (July 2014).
- “Recording Cellphone Calls in Calif. is Risky for Companies,” Law360 (May 15, 2014).
- “Auto Lending Discrimination Case Highlights Lender Risks,” Law360 (March 6, 2014).
- “The CFPB’s Unfair and Misleading Report on Arbitration,” Law360 (January 24, 2014).
- “Calling 7th Circuit: Robocalls And Federal Preemption,” Law360 (January 13, 2014).
- “Payment Processors in the Regulatory Crosshairs,” Law360 (January 9, 2014).
- “They’re Here: The FCC’s New Regulations Under the TCPA – Now What?,” ACC Docket (October 25, 2013).
- “Green Light for More Deceptive Labeling Class Actions,” Law360 (August 23, 2013).
- “6 Steps for Responding to a Civil Investigative Demand,” Law360 (August 16, 2013).
- “Power of Arbitration Agreements In TCPA Class Actions,” Law360 (August 6, 2013).
- “The Elephant in the Room: Contingency Fees and the Future of Coupon Settlements After In re HP Inkjet Printer Litigation,” Bloomberg BNA (July 15, 2013).
- “The Telephone Consumer Protection Act,” Lawyer Monthly (July 2013).
- “Confirmation of Director Cordray Could Substantially Increase CFPB Enforcement Activity,” insideARM.com (July 2013).
- “Supreme Court Enforces Arbitration Provision Barring Merchants From Bringing Class Action Antitrust Claims Against American Express,” California Retailers Association Golden State Report (July 2013).
- “Manually Dialed Telephone Calls May Violate TCPA,” InteractiveCredit.com (May 20, 2013).
- “The Hard Stop On ‘Adventurous Innovation’ In Class Action Litigation: The United States Supreme Court’s Decision In Comcast v. Behrend, Remand Of Whirlpool v. Glazer And The Probable Return Of Defect Manifestation To Class Certification Determinations In The Ninth Circuit,” Mealey's Litigation Report: Class Actions (April 19, 2013).
- “Watch Out for Shareholder Suits Spawned by CFPB Settlements,” American Banker (January 17, 2013).
- Board of Governors, Association of Business Trial Lawyers (2014–Present)
- Member, Antitrust & Unfair Competition Section, State Bar of California
- Los Angeles County Bar's Trial Advocacy Program - volunteer prosecutor for the Los Angeles and Burbank City Attorney’s offices
- Member, Los Angeles County Bar (2007–Present)
- Board of Directors, Team Prime Time, (2014–Present)
- Panelist, “Key Privacy Law Developments for California in 2016,” In-House Counsel Conference of the Southern California Chapter of the Association of Corporate Counsel (January 27, 2016)
- Speaker, KPMG Legal and Compliance Share Forum, NHTSA's Response to Hacking, Los Angeles Auto Show (November 19, 2015)
- Program Co-Chair, "Bridgeport’s 2015 Class Action Litigation & Management Conference" (April 16–17, 2015)
- Speaker, KPMG Legal and Compliance Share Forum, Los Angeles Auto Show (November 20, 2014)
- Speaker, Auto Finance Compliance Summit (Newport Beach, CA, May 5–4, 2014)
- Speaker, “Bridgeport's Continuing Education Advertising, Marketing & Media Law - Litigation and Best Management Practices” (March 7, 2014)
- Speaker, American Bar Association's Corporate Counsel CLE Conference (Rancho Mirage, CA, February 13–16, 2014)
- Speaker, “January 2014 Consumer Protection Update, ABA Section of Antitrust Law” February 13, 2014)
- Speaker, “The Implications of Recent Supreme Court Decisions for Expert Analysis in Class Actions: Insights from Economics, Marketing, Finance, and Law” (Los Angeles, CA, February 4, 2014)
- Speaker, “Are You Ready for the Changes to the Telephone Consumer Protection Act Going Into Effect in October 2013?” (September 18, 2013)
- Speaker, “What Makes Jurors Tick? Jury Selection and Persuasion” (Los Angeles, CA, September 12, 2013)
- Speaker, HBA Global Expo & Conference (New York, NY, June 18–20, 2013)
- Speaker, “You Make the Call: What You Should Know About the Telephone Consumer Protection Act to Make Sure It Isn't the Wrong One” (Los Angeles, CA, May 8, 2013)
- Speaker, Bridgeport Continuing Education Class Action Litigation & Management Conference (Los Angeles, CA, April 11–12, 2013)
- Speaker, “Everything a Marketer Needs to Know About the CFPB – But May Not Know to Ask” (March 5, 2013)