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Simeon Botwinick

Simeon Botwinick is an associate in the Washington, DC office. He handles trademark, copyright, and patent matters, with an emphasis on counseling and litigation, and has worked with clients in the pharmaceutical, automotive, typeface, and emergency service industries. Simeon's pro bono practice focuses on legal aid direct representation.

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In a putative class action in the District of Delaware against Match Group, Inc., a magistrate judge has recommended that a motion to dismiss be granted based on finding that alleged misrepresentations were non-actionable puffery, opinion, and/or forward-looking statements.  The opinion offers a useful analysis, with examples, of how these concepts are appropriately applied.

Match Group owns and operates several online dating services, including Tinder, Hinge, Match.com, and OkCupid. Plaintiffs, including a shareholder seeking to recover on behalf of all Match Group investors, brought claims under the Securities Exchange Act alleging that Match Group made material misrepresentations and omissions regarding a) the integration of Hyperconnect (a “social discovery and video technology” company acquired by Match Group); and b) the performance of two new Tinder product offerings, Explore (an interactive social discovery interface, seeking to match users based on similar interests) and Tinder Coins (an in-app currency).

The magistrate judge agreed with Match Group that the complaint should be dismissed because the statements in question were either accurate and non-contradictory, or non-actionable puffery, opinion, and/or forward-looking statements. See Bardaji v. Match Group Inc. et al., No. 1:23-cv-00245 (D. Del. June 27, 2024).Continue Reading District of Delaware Magistrate Finds Dating App Misrepresentation Claims Non-Actionable

A Northern District of California court excluded two groups from certified classes alleging privacy violations against Google, finding that individuals who did not set their own privacy settings did not satisfy the predominance requirement of Rule 23(b)(3).

In Rodriguez, et al., v. Google LLC, 2024 WL 1486139 (N.D. Cal. Apr. 5, 2024), plaintiffs had filed a putative class action against Google alleging that their online activities were transmitted to Google even after they turned off certain internet tracking settings, constituting alleged intrusion upon seclusion, invasion of privacy, and violation of the Comprehensive Computer Data Access and Fraud Act (CDAFA). The court had already certified two classes, but during the class notice process a dispute arose over whether two groups of people who had not set their own tracking settings were part of the class definitions: 1) users of accounts created by businesses or organizations for their employees or members; and 2) users of accounts created for children under thirteen by their parents.Continue Reading In Internet Privacy Case, Predominance Rejected for Persons Who Did Not Choose Their Own Privacy Settings

The Sixth Circuit vacated an order certifying five statewide classes alleging a common brake defect in Ford Motor Company’s F-150 pickup trucks, remanding the case to the district court “for more searching consideration” of whether commonality under Federal Rule of Civil Procedure 23(a)(2) was satisfied.

In Weidman v. Ford Motor Co., 2022 WL 1071289 (E.D. Mich. Apr. 8, 2022), plaintiffs had filed a putative class action against Ford over an alleged defective brake cylinder in their F-150 pickup trucks.  The district court certified five statewide classes on three issues under Rule 23(c)(4): (1) whether the trucks’ brake systems were defective; (2) whether Ford possessed pre-sale knowledge of the defect; and (3) whether concealed information about the defect would be material to a reasonable buyer.

On a Rule 23(f) petition for interlocutory review, the Sixth Circuit vacated the class certification order, finding that the district court’s “cursory treatment of commonality, one of the four necessary class action ingredients, failed to meet Rule 23’s stringent requirements.”  In Re Ford Motor Co., 2023 WL 7877971, at *1 (6th Cir. Nov. 16, 2023).Continue Reading Sixth Circuit Pumps the Brakes on Class Certification Alleging Common Defects in Ford F-150 Pickup Trucks

In a decision that could be useful to defendants in highly-regulated industries that face class action claims predicated on violations of federal law, a recent Sixth Circuit opinion confirmed that implied preemption applies to state-law claims predicated on violations of the EPA’s vehicle fuel economy and emissions regulations. This decision confirms the expansion of the implied preemption defense to a new industry, and may signal further expansions in the future. Continue Reading A Closer Look: Sixth Circuit Expands Implied Preemption Defense