A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.

Continue Reading Illinois Federal Court Dismisses One False Advertising Suit Based on Malic Acid, While Sustaining Another

Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs.  Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense.  In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids states from imposing OTC labeling requirements that are “different from,” “in addition to,” or “otherwise not identical” with those provided under federal law, 21 U.S.C. § 379r(a), state-law claims that directly challenge or conflict with the FDA’s decision-making for OTC drug labels are expressly preempted.

Continue Reading Another Win for Preemption in Over-The-Counter Drug Labeling Case

A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification.  In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to “resolve the import of waivers at the certification stage—before they certify a class, and usually as the first order of business.”  2023 WL 5313006, at *6 (4th Cir. Aug. 18, 2023).  The Fourth Circuit held that courts must address the implication of an arbitration clause containing a class-action waiver before, not after, a class is certified.  And because the district court in this case did not do so, the Fourth Circuit vacated the district court’s class certification ruling.  Id. at *1.

Continue Reading Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification

In Moses v. New York Times Co., 2023 WL 5281138 (2d Cir. Aug. 17, 2023), the Second Circuit vacated and remanded the approval of a class action settlement because the district court applied the wrong legal standard in determining that the settlement was fair.  But in doing so, the court reiterated that incentive awards for class action representatives are permissible in the Second Circuit.

Continue Reading Second Circuit Holds that Rule 23(e) Prohibits Presumption of Fairness of Arm’s-Length Negotiated Class Settlements

Recently, a court in the Northern District of California compelled arbitration in a putative privacy class action, concluding that the arbitration provision included in a photo-editing app’s terms of use was not unconscionable.  See Flora, et al., v. Prisma Labs, Inc., 2023 WL 5061955 (N.D. Cal. Aug. 8, 2023).

Continue Reading California Federal Court Finds That Plaintiffs Must Arbitrate Their BIPA Claims

In a recent published decision, the Fifth Circuit declined to articulate a rule for the “order and depth in which” it “grapples with constitutional standing and the Rule 23 inquiry.”  Chavez v. Plan Benefit Services, Inc., __ F.4th __, No. 22-50368, 2023 WL 5160393 (5th Cir. Aug. 11, 2023).  The court concluded that the plaintiffs—three employees who participated in health and retirement plans administered by the defendants—had standing to sue on behalf of absent class members who participated in thousands of different benefits plans administered by the defendants.  The court went on to affirm the district court’s certification of two classes, each under both Rules 23(b)(1)(B) and 23(b)(3).

Continue Reading Fifth Circuit Declines to Wade Into Circuit Split on Relationship Between Standing and Class Certification

Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.”  See Trim v. Reward Zone USA LLC, — F.4th –, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023). 

Continue Reading Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA  

A court in the Southern District of California recently dismissed for failure to state a claim a case contending that a health care corporation violated users’ privacy under California law.  See Cousin v. Sharp Healthcare, No. 22-CV-2040-MMA (DDL), 2023 WL 4484441 (S.D. Cal. July 12, 2023).

In the proposed class action suit against Sharp Healthcare, a non-profit that operates multiple hospitals and medical groups, plaintiffs alleged violations of privacy under the California Constitution and common law, as well as violations of the California Confidentiality of Medical Information Act (“CMIA”) and California Invasion of Privacy Act (“CIPA”).  Plaintiffs claimed that Sharp collected and shared patients’ personal and sensitive health information by incorporating a third-party pixel on Sharp’s website.

Continue Reading Court finds Plaintiffs Fail to Plead CMIA, CIPA Claims against Health Care Corporation based on Conclusory, Hypothetical, and Vague Assertions

At the end of last month, courts handed down two decisions in favor of website operators and their service providers in session replay litigation, granting motions to dismiss on personal jurisdiction grounds.

Continue Reading Website Operator and Session Replay Provider Succeed on Personal Jurisdiction Arguments

This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement.  41 F.4th 1354 (11th Cir. 2022).  Because the law in the Eleventh Circuit at the time held that a single unwanted text message was insufficient to establish Article III standing, the Eleventh Circuit vacated the conditional class certification and approval of a settlement for a Telephone Consumer Protection Act class that contained individuals who received only unwanted text messages, not phone calls.  Id.; see also Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019) (singe unwanted text message is not a concrete injury under Article III).  The Drazen panel also held that the standing determination is decided under Eleventh Circuit law, even for class members who do not reside within the Eleventh Circuit’s geographic boundaries and would have standing under their own circuit precedent.  41 F.4th at 1360–61.

The full Eleventh Circuit subsequently decided to rehear Drazen en banc, and it vacated the entire panel decision.  The full court has now held that Salcedo was wrongly decided, and that the harm associated with a single unwanted text message is a concrete injury that satisfies Article III.  Drazen v. Pinto, 2023 WL 4699939, at *7 (11th Cir. July 24, 2023) (en banc) (“Drazen II”).  In doing so, the en banc court agreed with plaintiffs that a single unwanted text message is an invasion of privacy that bares a “close relationship with the harm associated with [the common law tort] intrusion upon seclusion,” satisfying the Supreme Court’s test to determine when intangible harms are sufficiently concrete under Article III.  Id. at *5–6 (citing TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203–04 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)).  The relationship between the harm alleged and common law analogues need not be “identical,” the en banc court explained, only “similar to the old harm.”  Drazen II, 2023 WL 4699939, at *5.  Accordingly, the case was remanded back to the Drazen panel to consider the issues originally raised on appeal but not decided regarding the initial settlement.

Drazen II’s determination that text message class members had standing moots the original panel’s (vacated) holding that all class members must have Article III standing to receive damages in a class settlement and that the standing determination is decided under Eleventh Circuit law even for class members who reside in other circuits with different precedent.  Still, and helpfully for Defendants, the en banc decision said nothing to suggest that the panel’s conclusion that all class members must have Article III standing in order to receive individual damages in a class settlement was wrong. Those issues are likely to come up again, and time (and this blog) will tell what the Eleventh Circuit does when they do.