Eighth Circuit

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

The United States District Court for the Southern District of Iowa has dismissed on sovereign immunity grounds a putative class action against the University of Iowa Hospitals and Clinics (“UIHC”) for unjust enrichment and violations of the Electronic Communications Privacy Act and Computer Fraud and Abuse Act.  See Yeisley v. Univ. of Iowa Hosps. & Clinics, No. 3:23-cv-00025 (S.D. Iowa Feb. 16, 2024) (unpublished). 

The plaintiff, a patient of UIHC, had alleged that UIHC used a pixel on its website to share her personally identifiable information with third parties for marketing purposes and without her consent.  The Court did not reach the merits of the case and instead granted UIHC’s motion to dismiss on the basis that sovereign immunity barred each of the plaintiff’s claims.Continue Reading Federal Court Dismisses Lawsuit Over Use of Pixel Technology on University Hospital Websites

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?