We recently posted about a trend of plaintiffs trying to keep certain class actions, including wiretap cases, in California state court and highlighted potential avenues for removal to federal court. Another federal court has weighed in, declining to remand because the plaintiff did not establish that CAFA’s mandatory local controversy exception applied. Miramalek v. Los Angeles Times Communications LLC, 2024 WL 2479940 (N.D. Cal. May 23, 2024). This recent case offers another potential ground for opposing a motion to remand, though it also underscores the attendant risk of jurisdictional discovery.
Continue Reading N.D. Cal. Court Declines Remand of California-Focused Wiretap Class ActionClass Actions Team
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South Carolina Federal Court Denies Class Certification in Consumer Data Breach Case
By Class Actions Team on
A court in the District of South Carolina recently denied class certification in a putative consumer data breach class action after concluding that the proposed class and sub-classes were not ascertainable. See In re Blackbaud, Inc., Customer Data Breach Litigation, 2024 WL 21555221 (D.S.C. May 14, 2024).
In February 2022, plaintiffs filed suit against Blackbaud, a business-to-business software company that sells cloud-computing services to social good organizations. Plaintiffs, who had provided personal information to Blackbaud’s customers, alleged that their information was compromised during a breach of Blackbaud’s data centers. In December 2022, plaintiffs moved to certify nationwide and sub-classes representing individuals whose “unencrypted information was stored on the database” of a Blackbaud customer. In support of class certification, plaintiffs sought to demonstrate that the proposed classes were ascertainable by relying on (1) expert opinion, (2) Blackbaud’s discovery responses, (3) customer notices Blackbaud sent following the breach, and (4) Blackbaud’s use of a database to comply with the California Consumer Privacy Act. The court rejected each of those arguments.
Continue Reading South Carolina Federal Court Denies Class Certification in Consumer Data Breach CaseSeventh Circuit Declines to Deepen Circuit Split on Incentive Awards
By Class Actions Team on
In Scott v. Dart, 99 F.4th 1076 (7th Cir. 2024), the Seventh Circuit held that incentive awards are sufficient to confer standing on named plaintiffs in appeals of class certification orders. In doing so, it declined to follow a recent Eleventh Circuit decision holding that incentive awards are unlawful.
Continue Reading Seventh Circuit Declines to Deepen Circuit Split on Incentive AwardsIllinois Federal Court Dismisses Publicity Privacy Suit Against French Genealogy Site for Lack of Personal Jurisdiction
By Class Actions Team on
Posted in Data Privacy and Cybersecurity, Seventh Circuit
An Illinois federal district court recently dismissed for lack of personal jurisdiction a publicity privacy suit against Geneanet, which the complaint alleges is a French subsidiary of Ancestry.com that owns and operates an interactive genealogy website. See Shebesh v. Geneanet, S.A., No. 23-cv-4195 (N.D. Ill. May 3, 2024). Plaintiff Ethan Shebesh sued on behalf of himself and a putative class under the Illinois Right of Publicity Act, which prevents the use of an individual’s identity for a commercial purpose without the individual’s consent. 765 ILCS 1075/30(a). Shebesh asserted that Geneanet unlawfully used his and the putative class members’ names and other identifying information to advertise and sell premium memberships. Concluding that the plaintiff failed to show that Geneanet intentionally directed its conduct at Illinois, the court granted Geneanet’s motion to dismiss.
Continue Reading Illinois Federal Court Dismisses Publicity Privacy Suit Against French Genealogy Site for Lack of Personal JurisdictionNinth Circuit Holds that Unexecuted Damages Model is Sufficient for Class Certification
By Samuel Crimmins & Class Actions Team on
In a recent decision, the Ninth Circuit concluded that a damages model that had been developed, but not actually applied to the underlying data, sufficiently showed that damages were susceptible to common proof for purposes of class certification.
The case, Lytle v. Nutramax Lab’ys, Inc., — F.4th— 2024 WL 1710663 (9th Cir. Apr. 22, 2024) concerns allegations that the defendants misled purchasers of their dog supplement—marketed as improving dogs’ joints and mobility—when allegedly no such benefits exist. To support class certification, the plaintiffs put forward an expert who had created a conjoint survey that they claimed could calculate damages on a class-wide basis. However, the plaintiffs conceded that the expert had not yet applied his analysis, relying instead on the expert’s prediction that his analysis could successfully measure the damages suffered by the class.
Continue Reading Ninth Circuit Holds that Unexecuted Damages Model is Sufficient for Class CertificationIn Rare Move, Fourth Circuit Exercises Pendent Jurisdiction Over Non-Final Order
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In Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co., 95 F.4th 181 (4th Cir. 2024), the Fourth Circuit took the unusual step of exercising interlocutory appellate jurisdiction over an order denying a motion to dismiss. Having granted a petition for interlocutory review under Federal Rule of Civil Procedure 23(f) of a class certification order, the court concluded that its review of the class order required it also to review the district court’s earlier denial of the defendant’s motion to dismiss.
Continue Reading In Rare Move, Fourth Circuit Exercises Pendent Jurisdiction Over Non-Final OrderSDNY Court Denies Class Certification in Suit Challenging Robitussin “Max Strength” Labels
By Class Actions Team on
A court in the Southern District of New York recently denied plaintiffs’ motion for class certification on adequacy grounds in a suit challenging the labeling of “Maximum Strength” Robitussin cough syrup. See Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC (S.D.N.Y. Mar. 21, 2024).
Continue Reading SDNY Court Denies Class Certification in Suit Challenging Robitussin “Max Strength” LabelsNinth Circuit Affirms Dismissal of Data Privacy Claims Based on Disclosure of Collection in Privacy Policy
By Class Actions Team on
In class actions challenging data collection, whether the defendant’s privacy policy disclosed the collection is almost always a key question at the dismissal stage. In a memorandum decision likely to be useful to defendants, the Ninth Circuit recently affirmed dismissal of claims challenging Google’s collection of data from third-party apps on its Android mobile operating system, holding that Google’s Privacy Policy clearly disclosed the collection. See Hammerling v. Google LLC, No. 22-17024 (9th Cir. Mar. 5, 2024) (unpublished).
Continue Reading Ninth Circuit Affirms Dismissal of Data Privacy Claims Based on Disclosure of Collection in Privacy PolicyNew York Federal Court Denies Motion to Dismiss False Advertising Suit Based on “Carbon Neutral” Claims
By Class Actions Team on
The Southern District Court of New York recently denied a motion to dismiss a false advertising lawsuit against a water bottle company, holding that a reasonable consumer could be misled by the company’s “carbon neutral” labeling.
Continue Reading New York Federal Court Denies Motion to Dismiss False Advertising Suit Based on “Carbon Neutral” ClaimsNinth Circuit Dismisses Website Framing Claim as Preempted by Copyright
By Class Actions Team on
Posted in Ninth Circuit, Technology
The Ninth Circuit recently dismissed a putative class action by an online business over allegations that Google placed search results over the business’s website. While the district court had denied a motion to dismiss, the Ninth Circuit reversed, holding that copies of websites are not chattel that could support a trespass to chattel claim and that the Copyright Act preempted the remaining claims of unjust enrichment, implied in law contract, and unfair competition.
Continue Reading Ninth Circuit Dismisses Website Framing Claim as Preempted by Copyright