Another Win for Tosi Law: Appeals Court Blocks Arbitration in Dexcom Case

Tosi Law successfully opposed Dexcom defense attorneys’ attempts to move several lawsuits against the pharmaceutical company into private arbitration.

Had the motion succeeded, Dexcom would have enjoyed several potential benefits, most notably a limited discovery process that would have curtailed Tosi Law’s efforts to gather evidence.

Furthermore, out-of-court arbitration proceedings tend to be biased toward corporate defendants and severely limit any opportunity to appeal an unsatisfactory verdict.

The lawsuit was brought to the 4th District Court of Appeal after the trial court passed a contentious ruling that the plaintiffs had waived their right to a trial in favor of arbitration proceedings. The court’s decision was based on its questionable interpretation of Dexcom’s misleading “terms of use” policy.

The plaintiffs, all victims of Dexcom’s malfunctioning G6 Continuous Glucose Monitoring (CGM) system, were required to check an “Agree” box when activating their product. This process, known as a “clickwrap agreement,” is standard practice for products like the G6 system that monitor a wearer’s biometric data.

However, in this case, Dexcom had embedded the arbitration clause inside the “privacy waiver” section of the agreement, meaning that users who consented to the use of their data were also unwittingly giving up their right to sue the company in court.

Once the case reached the appeals court, Tosi Law managing partner Min Koo argued that the arbitration clause could only be legally binding if it was clearly identified in the agreement and not misleadingly embedded in an unrelated section.

The Tosi Law team contended that California law only validates an arbitration agreement if both parties explicitly agree to it. They then successfully demonstrated that the structure of Dexcom’s clickwrap agreement was ambiguous and, as a result, legally invalid.

Discussing the appeals court’s decision, Ms Koo remarked that “[The decision] will provide guidance as to how arbitration will be worded and presented to consumers, especially on these platforms.”

Her comments refer to the legal precedent this ruling has established—an outcome that ensures companies present clickwrap arbitration clauses clearly and unambiguously. This represents an important step in protecting consumer rights against opportunistic corporations that want to limit their legal risk at the expense of their customers’ rights.

Plaintiffs are suing Dexcom after suffering severe health complications from the alleged catastrophic failure of the company’s G6 CGM system. The device, which claims to provide real-time alerts while monitoring wearers’ blood sugar levels, has been the subject of more than 500,000 FDA complaints.

Plaintiffs are alleging that incorrect readings and inaccurate notifications resulted in wearers suffering seizures and brain injuries, leading to comas and even the death of 13 wearers.

Following Tosi Law’s victory in the appeals court, the Dexcom lawsuits can now return to the San Diego County Superior Court, where the trial can resume.

Call Tosi Law if You Have Questions

If you or a loved one has developed multiple myeloma or any other type of cancer after being exposed to Roundup, you could be entitled to compensation. Please call Tosi Law LLP at 888-311-8292 for more information. Our defective product lawyers are ready to help you file a Roundup lawsuit.

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