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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

The Fifth Circuit issued two separate opinions deciding procedural issues related to Rule 23(f) appeals of class certification that provide additional protections for defendants.…

Continue Reading Divided Fifth Circuit Panels Expand Procedural Protections Available to Defendants in Rule 23(f) Appeals

The Ninth Circuit has continued to chip away at California’s McGill rule, which bars the enforcement of arbitration provisions that waive a plaintiff’s right to seek public injunctive relief in any forum. In Cottrell v. AT&T Inc., 2021 WL 4963246 (9th Cir. Oct. 26, 2021), the court extended its earlier decision in Hodges v.

Although plaintiffs often assume that breach-of-contract claims arising out of form agreements are readily susceptible to class certification, two recent appellate decisions cast doubt on that thinking. The First Circuit affirmed denial of class certification of claims arising from an annuity certificate, agreeing with the district court that common issues did not predominate over individual…

The Supreme Court has agreed to hear a case that may make it easier for companies to be found to have waived arbitration requirements in their contracts. Morgan v. Sundance, Inc. gives the Court an opportunity to resolve a circuit split over whether a party can be deemed to have waived its right to compel…

In a closely watched case by companies that operate in the UK—and one that had the potential to dramatically expand the UK’s representative action regime—the UK Supreme Court instead dismissed a representative privacy action against Google brought on behalf of 4 million iPhone users. The Court held that the claimant could not show that he…

To circumvent predominance issues, plaintiffs sometimes will ask a court to certify an issue class under Rule 23(c)(4). The Third Circuit recently made it more difficult for plaintiffs to do so by making clear that the issue underlying such a request for class certification must independently satisfy one of the requirements of Rule 23(b). See…