In a case of first impression, the Ninth Circuit recently held that when there is ambiguity about the scope of a putative or certified class, American Pipe statute of limitations tolling should generally apply to potentially excluded class members. This question is likely to arise where a proposed class definition is narrowed during the course of litigation such that certain putative members may no longer fit within the definition. Should those now-excluded bystander plaintiffs argue that American Pipe tolling applies to their claims, courts in the Ninth Circuit are now instructed to resolve that ambiguity in favor of such bystander plaintiffs.Continue Reading A Closer Look: Ninth Circuit Extends American Pipe Tolling to Potentially Excluded Class Members in Face of Ambiguous Class Definitions
Affirmative Defense of Consent Leads to 23(b)(3) Class Certification Denial in Google Ad Bidding Privacy Litigation
A district court judge in the Northern District of California recently denied class certification in a putative privacy class action against Google and its Real Time Bidding (“RTB”) advertising system. Plaintiffs moved to certify both damages and injunctive relief classes based on allegations that Google shared personal information through its RTB system. The court denied with prejudice certification under Rule 23(b)(3), finding that individual questions about class member’s past consent to—and subjective understanding of—Google’s disclosures would predominate. The district court also denied the proposed injunctive relief class on the grounds that the proposed class definition was “fail-safe” and that plaintiffs had not met their burden to prove that their data was representative of the proposed class, but the court did so with leave to amend and requested further briefing. Plaintiffs subsequently petitioned for leave to appeal the denial to the Ninth Circuit.Continue Reading Affirmative Defense of Consent Leads to 23(b)(3) Class Certification Denial in Google Ad Bidding Privacy Litigation
Judge Highlights Trend of Narrow Reading of VPPA In Class Action Dismissal
A federal judge in the Western District of Texas recently sided with a growing trend of rulings adopting a narrow reading of the Video Privacy Protection Act (VPPA) in dismissing a putative class action against the operators of a Texas Longhorns email newsletter. The case involved tracking pixels embedded in videos that were linked in the newsletter but posted to public websites. The court held that because the plaintiffs had not made a durable commitment through signing up for the newsletter, and because videos were not embedded in the newsletter, plaintiffs failed to meet the definition of “consumer” as defined in the VPPA.Continue Reading Judge Highlights Trend of Narrow Reading of VPPA In Class Action Dismissal
Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft
A federal district court in the Northern District of California granted in part a motion to dismiss putative class action claims filed against Western Digital, a hard drive manufacturer whose older devices experienced a cyber-attack, where the plaintiffs alleged that their stored data was deleted but not that it was stolen. While plaintiffs will be permitted to maintain claims related to the data loss, they lack standing to assert claims based on future data misuse.Continue Reading Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft
Supreme Court Resolves Circuit Split to Require Stays Pending Appeal of Refusals to Compel Arbitration
The Supreme Court, in a 5–4 ruling, has resolved a circuit split on the issue of litigation stays pending appeal of denials of motions to compel arbitration. In the underlying putative class action, Bielski et al v. Coinbase, Inc., 3:21-cv-07478 (N.D. Cal.), Coinbase moved to compel arbitration of the plaintiffs’ claims, but the motion was denied by the district court. The Ninth Circuit—in a split from several other Circuits—declined to stay the district court proceedings while the appeal was pending. The Supreme Court now has ruled that a district court must stay proceedings while an interlocutory appeal on the question of arbitrability is ongoing. The decision means that defendants should be able to minimize ongoing litigation costs while an appeal of an adverse arbitration decision is pending.Continue Reading Supreme Court Resolves Circuit Split to Require Stays Pending Appeal of Refusals to Compel Arbitration
In a Case of First Impression Under North Carolina’s Automatic Renewal Statute, Judge Dismisses Some Claims but Allows Others to Proceed
A U.S. district court recently granted in part and denied in part the New York Times’s motion to dismiss claims that its subscription renewal terms violated North Carolina’s little-used Automatic Renewal Statute. The plaintiff, on behalf of a putative class, claimed that the Times subscription process failed to adequately disclose the automatic renewal and cancellation options as required by the statute. The court dismissed several of the plaintiff’s claims, but the case was allowed to proceed on allegations that the methodology for canceling was not clearly and conspicuously disclosed, and that the terms of subscription price increases were not provided in the format required by the statute.Continue Reading In a Case of First Impression Under North Carolina’s Automatic Renewal Statute, Judge Dismisses Some Claims but Allows Others to Proceed
Court Dismisses Class Action Seeking to Hold Cryptocurrency Exchange Coinbase Liable for Sale of Unregistered Securities
A federal district court recently dismissed with prejudice a putative class action against the cryptocurrency exchange Coinbase, where the plaintiffs sought to hold the exchange liable for the sale of unregistered securities on behalf a nationwide class. The court held that Coinbase neither directly sold the accused tokens to plaintiffs nor actively solicited their sale, and thus plaintiffs’ federal claims must be dismissed. This decision has important implications for digital asset exchanges, which have faced a significant increase in class actions alleging the exchanges are themselves liable for the sale of unregistered securities.Continue Reading Court Dismisses Class Action Seeking to Hold Cryptocurrency Exchange Coinbase Liable for Sale of Unregistered Securities
Class Action Suit Brought Under CIPA Section 637.7 for Alleged Location-Based Tracking of Vehicles Is Dismissed
A U.S. District Court Judge in California dismissed a putative class action asserting claims under section 637.7 of the California Invasion of Privacy Act (CIPA) in a case that could have useful implications for automotive and other device manufacturers whose products have the ability to track location. Plaintiff claimed that a third-party company, Otonomo Inc., partnered with automobile manufacturers to use the telematics control units (TCUs) installed in their vehicles to track a driver’s location via GPS without the driver’s knowledge. The Court rejected the claim, holding that because the TCU devices were built-in, rather than devices added to a vehicle, they were not “attached” to the car and thus did not fall within the statute’s definition of “electronic tracking device.”Continue Reading Class Action Suit Brought Under CIPA Section 637.7 for Alleged Location-Based Tracking of Vehicles Is Dismissed
S.E.C. Wins Summary Judgment Determination That Cryptocurrency Token Qualifies as a Security
In a recent decision, a federal judge granted summary judgment for the Securities and Exchange Commission (SEC) finding that the LBC cryptocurrency token qualifies as a security. While the ruling is confined to this specific token, it represents a victory for the SEC’s assertions that many cryptocurrencies, including so called “utility tokens,” represent securities that need to be registered with the agency. The Court also held that the makers of the LBC token, LBRY, Inc., had fair notice that the token was subject to the securities laws. Considering the ongoing class actions and enforcement proceedings litigating this issue across several cases, companies operating in the cryptocurrency space, including cryptocurrency exchanges, should follow this development to assess any possible impact on their businesses.Continue Reading S.E.C. Wins Summary Judgment Determination That Cryptocurrency Token Qualifies as a Security
Illinois BIPA jury verdict highlights rising prominence of class actions based on state privacy statutes
Following a week-long trial, a jury in Illinois awarded a plaintiff class of truck drivers a $228 million verdict against BNSF Railways for violations of the Illinois Biometric Information Privacy Act (“BIPA”). The large verdict, arising from the first case to go to trial under the 2008 law, highlights the potential impact of class actions brought under this statute.Continue Reading Illinois BIPA jury verdict highlights rising prominence of class actions based on state privacy statutes