D.C. Circuit

In Nicole Pileggi v. Washington Newspaper Publishing Company LLC, the D.C. Circuit unanimously affirmed the district court’s dismissal of a complaint alleging that news magazine and website Washington Examiner disclosed consumers’ personal information through a third-party pixel in violation of the Video Privacy Protection Act (“VPPA”). 

In 2023, Pileggi alleged that the Examiner’s use of a third-party pixel on its site gave the third party the ability to collect website visitors’ personal information, including IP addresses and titles of videos they had watched.  The District Court for the District of Columbia granted the Examiner’s motion to dismiss early last year, holding that Pileggi was not a “consumer” under the VPPA and that she failed to establish the requisite connection between her subscription to the Examiner’s newsletter and the video information allegedly disclosed.Continue Reading D.C. Circuit Deepens Circuit Split on Interpretation of “Consumer” Under VPPA

On April 15, the U.S. Supreme Court declined a request by Visa and Mastercard to review a D.C. Circuit decision that appeared to add to a circuit split about how lower courts are to determine whether common issues predominate under Federal Rule of Civil Procedure 23(b)(3). 

The case, Visa Inc. v. Nat’l ATM Council, Inc., Case No. 23-814, was part of a long-running dispute between the card companies and ATM operators about ATM fees.  In July, the D.C. Circuit upheld the certification of three different Plaintiff classes over the card companies’ argument that the district court had failed to perform a “rigorous analysis” about whether class-wide issues predominated.  Nat’l ATM Council, Inc. v. Visa Inc., 2023 WL 4743013 (D.C. Cir. 2023).  Although it noted that the district court’s analysis was “notably terse,” the D.C. Circuit found no error in the lower court’s holding that Plaintiffs need only demonstrate a “colorable” method of proving class-wide injury and that the Plaintiffs’ evidence satisfied that test.  Rejecting the card companies’ argument that Plaintiffs’ class-wide injury methodology failed to weed out uninjured class members, the court observed that “Defendants’ contention that their model showing unharmed members is more accurate and credible than Plaintiffs’ different models showing that all members were harmed is … precisely the kind of material factual dispute” that should be resolved at the merits, not class certification, stage.  Id. at *11.    Continue Reading Supreme Court Declines to Wade into Class Certification “Predominance” Issue

Rule 23(c)(4) states that, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”  But do classes under Rule 23(c)(4), otherwise known as “issue classes,” also need to satisfy the requirements of Rule 23(a) and (b)?  In Harris v. Medical Transportation Management, Inc., 2023 WL 4567258 (D.C. Cir. July 18, 2023), the D.C. Circuit confirmed that the answer is “yes.” Continue Reading D.C. Circuit Confirms That Issue Classes Must Satisfy the Requirements of Rule 23(a) and (b)

If a tree falls in the forest but no one is around to hear it, did it make a sound?  Philosophers disagree.  If a product contains a contaminant but no one gets sick, did it cause an injury?  Judges disagree.

In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury.  These so-called “no-injury” theories of liability were largely rejected by courts.  E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).

While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud.  E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).

Whether and when “no-injury” claims are viable is a hotly debated question.  As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.Continue Reading A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?

Two federal appellate courts are set to address the circumstances under which a class that includes many uninjured class members may be certified. In the Ninth Circuit, the en banc court agreed to decide if a class that includes more than a de minimis number of uninjured class members can…

Continue Reading D.C. and Ninth Circuits to Decide If Evidence of Uninjured Absent Members Defeats Class Certification