In a decision that could be useful to defendants in highly-regulated industries that face class action claims predicated on violations of federal law, a recent Sixth Circuit opinion confirmed that implied preemption applies to state-law claims predicated on violations of the EPA’s vehicle fuel economy and emissions regulations. This decision confirms the expansion of the implied preemption defense to a new industry, and may signal further expansions in the future. 

Continue Reading A Closer Look: Sixth Circuit Expands Implied Preemption Defense

A U.S. district court recently granted in part and denied in part the New York Times’s motion to dismiss claims that its subscription renewal terms violated North Carolina’s little-used Automatic Renewal Statute.  The plaintiff, on behalf of a putative class, claimed that the Times subscription process failed to adequately disclose the automatic renewal and cancellation options as required by the statute.  The court dismissed several of the plaintiff’s claims, but the case was allowed to proceed on allegations that the methodology for canceling was not clearly and conspicuously disclosed, and that the terms of subscription price increases were not provided in the format required by the statute.

Continue Reading In a Case of First Impression Under North Carolina’s Automatic Renewal Statute, Judge Dismisses Some Claims but Allows Others to Proceed

In recent years, sellers of consumer products have faced countless class action lawsuits alleging that their products are misleadingly advertised.  Many motions to dismiss often turn on whether the product’s advertising is misleading to a reasonable consumer.  But in Valiente v. Publix Super Markets, Inc., 2023 U.S. Dist. LEXIS 91089 (S.D. Fla. May 24, 2023), the court took a different tack, dismissing a false advertising claim on Article III standing grounds because the defendant’s “money-back guarantee” effectively mooted the plaintiff’s claim for monetary damages.

Continue Reading “Money-Back Guarantee” Deprived Plaintiff of Standing to Bring a False Labeling Class Action

The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss.  MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).

Continue Reading Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage

The Supreme Court recently issued its opinion in Gonzalez v. Google LLC, a case about whether Section 230 of the Communications Decency Act (47 U.S.C. § 230) protected YouTube’s recommendation algorithms from a claim of secondary liability under the Anti-Terrorism Act (ATA). In a short, three-page per curiam opinion, the Court avoided addressing the Section 230 issue entirely. Instead, the Court held that much of the plaintiffs’ ATA complaint would fail to state a claim for relief under the Court’s separate decision in Twitter v. Taamneh (handed down the same day), given that plaintiffs’ counsel in Gonzalez conceded that the allegations in the Gonzalez complaint were materially identical to the Twitter complaint. The Court also relied on the fact that plaintiffs did not seek review of a separate part of the Ninth Circuit’s opinion that addressed ATA claims related to revenue-sharing. Because the Court found that the underlying ATA claim would likely fail on the merits, it found it unnecessary to reach the interpretation of Section 230 immunity. This result was foreshadowed at the oral argument, where the Justices appeared to be concerned with line-drawing and potential unintended consequences of applying Section 230 to the algorithms at issue. The Court found a way out of deciding the Section 230 question in Gonzalez, but it remains to be seen whether the Court will look for a different vehicle to address the scope of Section 230 immunity in the future.

A federal district court recently denied remand of a proposed class action against Twitter, Inc., rejecting plaintiff’s arguments, including that the removal was improper because his claim was limited to a “statutory damages remedy” that does not confer Article III standing under TransUnion LLC v. Ramirez.  See Order Denying Plaintiff’s Motion to Remand, Morgan v. Twitter, Inc., No. 2:22-cv-00122-MKD (E.D. Wash. May 5, 2023).

Continue Reading Court Denies Remand of Privacy Suit, Finding Article III Standing Under <em>TransUnion</em>

A court in the Northern District of California recently dismissed with prejudice a case that claimed a company violated the New York Video Consumer Privacy Act (“NYVCPA”) and the Minnesota Video Privacy Law (“MVPL”) by retaining consumers’ personally identifiable video rental history data.  The court found that neither the NYVCPA nor the MVPL contained private rights of action for retention of that data.

Continue Reading New York and Minnesota Video Privacy Statutes Do Not Include Private Rights of Action for Retention of Rental History Data, Federal Court Holds

The Sixth Circuit recently vacated a class certification order in a decision that may make it easier for defendants to defeat putative class actions where a named plaintiff asserts standing based on the injuries of absent class members.  Under the “juridical link doctrine,” a named plaintiff may bring a class action against defendants who did not injure them so long as the absent members of the proposed class would have standing to sue those defendants.  In vacating a district court order that certified a class based on this doctrine, the Sixth Circuit joined the Second Circuit in rejecting the doctrine and holding that named plaintiffs in a putative class action must have standing to sue every defendant at the time of filing.

Continue Reading Sixth Circuit Rejects Juridical Link Exception to Standing in Class Actions

The Third Circuit recently affirmed the denial of class certification to end-payor health plans that alleged that the defendant’s “pay-for-delay” settlement of patent infringement litigation inflated prices on a prescription drug.  In doing so, the court reaffirmed that named plaintiffs must present an administratively feasible mechanism to ascertain whether putative class members fall within the proposed class definition and thus took sides in a growing circuit split on that issue.  See In re Niaspan Antitrust Litig., — F.4th –, 2023 WL 3243532 (3d Cir. 2023).

Continue Reading Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification

The Tenth Circuit recently affirmed an order denying class certification, in an unpublished decision holding that district courts may rely on out-of-circuit precedent in deciding whether a proposed class is ascertainable.

Continue Reading Tenth Circuit Permits District Courts to Rely on Third and Seventh Circuit Ascertainability Precedent