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A court in the Northern District of Illinois recently issued a mixed ruling dismissing in part a putative class action claiming that a company violated the Illinois Consumer Fraud Act (“ICFA”) by allegedly failing to disclose that its dry shampoo products potentially contained the carcinogen benzene.  Although the court allowed the case to move forward on the ICFA claim to the extent that the claims were based on a theory that the products were adulterated, the court found the ICFA claim preempted by the FDA to the extent it relied on a theory that benzene should have been included on the ingredients list.Continue Reading Court Issues Mixed Ruling in Benzene Hair Product Case

An Illinois federal district court recently concluded that, under the Class Action Fairness Act (CAFA), the “citizenship” of a limited liability company is determined by reference to its principal place of business and state of organization. See Calchi v. TopCo Associates, LLC, 2023 WL 3863355 (N.D.Ill. June 7, 2023).…

Continue Reading Illinois Court Confirms Majority Rule that LLC’s Citizenship for CAFA Purposes Is Determined By Reference to Its Principal Place of Business and State of Organization

On April 24, 2023, a judge in the Southern District of New York dismissed a putative class action alleging that Scripps Network LLP (“HGTV”) disclosed plaintiffs’ identities and streaming activities on hgtv.com in violation of the Video Privacy Protection Act (“VPPA”).  See Carter v. Scripps Networks, LLC, No. 22-CV-2031 (PKC), 2023 WL 3061858, at *1 (S.D.N.Y. Apr. 24, 2023).Continue Reading Federal Court Finds That Plaintiffs Aren’t “Subscribers” Under The Video Privacy Protection Act

Last month, a new class action lawsuit was filed in California federal district court against the maker of the app “Reface,” which allegedly allows users to swap their face onto that of a celebrity in images and videos.  The plaintiff in the case, Kyland Young, was a finalist on the reality TV show Big Brother.  He alleges that Reface allows users to “become” him and to recreate his scenes from the show with their face in place of his.  Young alleges that in doing so, the defendant is commercially exploiting his likeness without his permission in violation of California’s right of publicity statute.  Young asserts the claim on behalf of a putative class of “[a]ll California residents whose name, voice, signature, photograph, or likeness was displayed on [the] Reface application . . .”  Young does not allege how many likenesses were available for use on Reface, but he does allege they are enough to satisfy Rule 23’s numerosity requirement.  See Young v. NeoCortext, Inc., Case No. 2:23-cv-02496 (C.D. Cal.). Continue Reading AI Face-Swap App Spawns New Class Action

A Minnesota federal court recently certified several classes of plaintiffs asserting antitrust claims against America’s largest pork producers and integrators.  In re Pork Antitrust Litig., C.A. No. 18-1776 (D. Minn. Mar. 29, 2023).

Each class of plaintiff asserted a per se theory of harm that defendants conspired to limit…

Continue Reading Minnesota Federal Court Certifies Class of Indirect Pork Purchasers Under Rule of Reason Analysis

The Third Circuit recently vacated an order denying class certification, and in the process provided more clarity on what plaintiffs must do to satisfy Rule 23’s predominance and ascertainability requirements.

In Kelly v. RealPage Inc., — F.4th —, 2022 WL 3642113 (3d Cir. Aug. 24, 2022), the plaintiffs alleged…

Continue Reading Third Circuit Further Refines Its Ascertainability Requirement

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

Manufacturers of over-the-counter (OTC) medications often move to dismiss consumer class actions based on federal preemption.  The Federal Food, Drug, and Cosmetic Act (FDCA) contains an express preemption clause that forbids states from enforcing laws relating to OTC drugs that are “different from or in addition to, or that [are] otherwise not identical with, a requirement under” the FDCA.  21 U.S.C. § 379r(a).  (Section 379r also contains a savings clause that exempts product liability actions from its preemptive scope.  See id. § 379r(e).)  Similar preemption provisions exist for food and cosmetics.  Id. §§ 343-1(a), 379s(a).  Although most courts have interpreted the FDCA’s express preemption provisions broadly, a minority have limited their application.  As discussed below, the minority view involves distinguishable circumstances and is inconsistent with the FDCA’s statutory text.Continue Reading A Closer Look: Express Federal Preemption for OTC Medications Subject to Monographs

Last September, we reported on a 2-1 Ninth Circuit decision holding that even if an arbitration clause appears to be unenforceable under the prospective waiver doctrine, a delegation provision requiring the arbitrator to decide that issue in the first instance is still enforceable.  Brice v. Haynes Invs., LLC, 13 F.4th 823 (9th Cir. 2021).  This decision reversed the district court’s order denying defendants’ motion to compel arbitration.  Because the district court action was not stayed pending the appeal, it proceeded through class certification and pretrial motions.  The Ninth Circuit now has vacated the panel decision and decided to rehear the case en banc.Continue Reading Update: Ninth Circuit Might Backtrack on When an Arbitrability-Related Question May be Delegated to an Arbitrator

The Eleventh Circuit departed from the approach taken by the Seventh, Eighth, and Ninth Circuit when it held, in a 2-1 decision, that appellate courts lack jurisdiction to review a district court’s sua sponte order remanding a class action to state court. 

As a general matter, appellate courts lack jurisdiction…

Continue Reading Eleventh Circuit Creates Circuit Split By Refusing To Review District Court’s Sua Sponte Order Remanding A Class Action