In Attias v. CareFirst, Inc., 15-cv-00882-CRC (D.D.C. Mar. 28, 2023), the court’s application of TransUnion v. Ramirez, 141 S. Ct. 2190 (2021), reinforced that inclusion of uninjured class members in the class definition can defeat certification.  In CareFirst, Plaintiffs alleged that the data breach that CareFirst, Inc. (“CareFirst”), a health insurance company, suffered in 2014 exposed the plaintiffs to increased risk of fraud and identity theft.  Plaintiffs claimed they had to spend time and money on services such as credit and identity theft monitoring programs.  They sought to represent classes that included all CareFirst customers in certain states whose personal information was impacted by the breach, regardless of whether those customers incurred additional expenses as a result of the breach. 

            The court declined to certify the class, concluding that doing so would be inconsistent with TransUnion.  In applying TransUnion, the court explained that although the named plaintiffs had standing, the class, presently defined, would include a significant number of people who did not spend any time or money on mitigating services and thus did not suffer any Article III injury under TransUnion.  While recognizing that a modification to the class definition to limit its membership to “customers who spent time on protective measures because of the CareFirst breach” may be of some benefit in achieving certification, the court expressed skepticism over how such edification could overcome the practical difficulties associated with identifying class members who meet the definition.

              The CareFirst decision’s application of TransUnion emphasizes that including uninjured members in a class definition, or excluding them without a practical method of parsing them out, presents challenges for class certification.

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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.