On July 21, the federal district court denied remand of a proposed class action against Build-A-Bear Workshop, Inc., rejecting the plaintiff’s attempt to remand based merely on Build-A-Bear raising lack of standing as an affirmative defense in its answer.  See Order Denying Motion to Remand, Ruby v. Build-A-Bear Workshop, Inc., No. 4:21-cv-01152-JAR (E.D. Mo. July 21, 2022).

The plaintiff originally brought the purported class action in Missouri state court, alleging that Build-A-Bear violated the Telephone Consumer Protection Act (“TCPA”) by, among other things, sending him and other purported class members unwanted text messages.  Build-A-Bear subsequently removed the case to the Eastern District of Missouri asserting federal question jurisdiction.  The plaintiff did not oppose removal at the time, and written discovery commenced.

After amending his complaint and Build-A-Bear answered, the plaintiff moved to remand the purported class action.  Specifically, the plaintiff pointed to Build-A-Bear’s affirmative defense and discovery responses, which claimed that the plaintiff has not suffered an injury-in-fact and thus lacked standing to pursue the action.  The plaintiff argued that those statements created doubt as to whether Build-A-Bear had met its burden of establishing the court’s subject matter jurisdiction, and that any doubts must be resolved in favor of remand. The court rejected the plaintiff’s arguments.  First, the court determined that Build-A-Bear had correctly asserted federal jurisdiction because under the “well-pleaded complaint rule,” a federal question was present on the face of the plaintiff’s complaint, namely the claim under the TCPA.  The court further held that raising lack of standing as an affirmative defense did not deprive the court of federal question jurisdiction.  It reasoned that Build-A-Bear’s affirmative defense “challenged the plaintiff’s standing to bring a claim under the TCPA and his ability to identify a compensable injury, not the plaintiff’s Article III standing or the Court’s jurisdiction.”

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Ellen Choi Ellen Choi

Ellen Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal…

Ellen Choi is a member of the firm’s Litigation and Investigations Practice Group. She represents clients in complex commercial disputes involving a range of issues such as business torts, consumer protection, and insurance recovery. Ellen also has experience in a range of internal investigations, including workplace culture investigations. Ellen maintains an active pro bono practice.

Ellen is fluent in Korean and has experience advising Korean companies in litigation and investigation matters.

Prior to joining Covington, Ellen clerked for Judge Philip S. Gutierrez, U.S. District Court, Central District of California. Ellen was a management consultant in the pharmaceutical and biotech space before practicing law.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer…

Kate Cahoy co-chairs the firm’s Class Actions Litigation Practice Group and serves on the leadership committee for the firm’s Technology Industry Group. She defends clients in complex, high-stakes class action disputes and has achieved significant victories across various industries, including technology, entertainment, consumer products, and financial services. Kate has also played a key role in developing the firm’s mass arbitration defense practice. She regularly advises companies on the risks associated with mass arbitration and has a proven track record of successfully defending clients against these challenges.

Leveraging her success in class action litigation and arbitration, Kate helps clients develop strategic and innovative solutions to their most challenging legal issues. She has extensive experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), along with common law and constitutional rights of privacy, among others.

Recent Successes:

Represented Meta (formerly Facebook) in a putative nationwide advertiser class action alleging violations under the California Unfair Competition Law (UCL) related to charges from allegedly “fake” accounts. Successfully narrowed claims at the pleadings stage, defeated class certification, opposed a Rule 23(f) petition, won summary judgment, and defended the victory on appeal to the Ninth Circuit. The Daily Journal selected Covington’s defense of Meta as one of its 2021 Top Verdicts, and Law.com recognized Kate as a Litigator of the Week Shoutout.
Defeated a landmark class action lawsuit against Microsoft and OpenAI contending that the defendants scraped data from the internet for training generative AI services and incorporated data from users’ prompts, allegedly in violation of CIPA, the Computer Fraud and Abuse Act (CFAA), and other privacy and consumer protection laws.

Kate regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in a Litigation Daily interview titled “Where Privacy Laws and Litigation Trends Collide.” In recognition of her achievements in privacy and antitrust class action litigation, the Daily Journal named her as one of their Top Antitrust Lawyers (2024), Top Cyber Lawyers (2022), and Top Women Lawyers in California (2023). Additionally, she received the Women of Influence award from the Silicon Valley Business Journal and was recognized by Daily Journal as a Top Attorney Under 40.