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Benjamin Cain is a commercial litigator who has handled a wide variety of complex, high-stakes civil litigations and internal investigations. He has extensive experience representing clients in the technology and pharmaceutical industries, among others. Ben has litigated in state and federal courts, and he maintains an active pro bono practice.

Late last week, the Seventh Circuit affirmed a trial court’s ruling granting dismissal at summary judgment of claims against FCA US LLC (“FCA,” formerly known as Chrysler) and Harman International Industries, Inc. (“Harman”) for lack of Article III standing.  See Flynn v. FCA US LLC, — F. 4th —-, 2022 WL 2751660 (7th Cir. July 14, 2022).  Plaintiffs’ class-action complaint claimed injuries arising out of an alleged cybersecurity vulnerability in an infotainment system designed by Harman for installation in FCA vehicles manufactured between 2013 and 2015.  See id. at *1.  However, after discovery, the Plaintiffs offered the trial court no evidence establishing that the vulnerability actually caused them any harm. 

Having failed to cite “any factual support for their claimed injury” in the trial court, id. at *3, the Plaintiffs shifted gears and sought to rely on appeal on portions of their expert reports regarding an “overpayment” theory that they had not relied on in the trial court, id. at *4.  Under that argument, Plaintiffs claimed that “they paid more for their vehicles than they would have if they had known about the cybersecurity vulnerability.”  Id. at *1.  The Seventh Circuit rejected Plaintiffs’ bid to rely on their expert reports as arising “far too late,” id. at *4, and affirmed the trial court’s ruling with a procedural modification to reflect a dismissal for lack of subject-matter jurisdiction without leave to amend, id. at *5.

Continue Reading Seventh Circuit Affirms Dismissal Of Class Claims Based Upon Speculative Hacking Risk

A federal judge in Wisconsin recently underscored the importance of thoughtful email design when settling parties employ electronic notice.  In Powers v. Filters Fast, LLC, No. 20-cv-982 (W.D. Wis. Feb. 24, 2022), ECF No. 65, the parties gave notice of a class action settlement through emails that used a generic subject line (“Legal Notice”) and an ambiguous sending address (“noreply[@]hcgsettlements.com”).  The court found that these features created a risk that class members would mistake the notice for spam, and thus “would deter rather than facilitate a high response rate from class members.”  Id. at 3.  In light of these issues, the court postponed the scheduled final approval hearing and ordered the parties to “cure the notice defects.”  Id. at 1.

Continue Reading Generic Title on Settlement Notice Email Prompts Court to Postpone Final Approval