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The Eleventh Circuit is poised to reconsider recent standing decisions favorable for defendants seeking to invoke Article III’s standing requirements to defeat class certification.

At issue is the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, holding that (i) all class members must have Article III standing in order to receive individual damages (whether through a settlement or otherwise), and (ii) the standing determination is decided under Eleventh Circuit law, even where certain class members do not reside within the Eleventh Circuit’s geographic boundaries and may have standing under other circuit precedent.  41 F.4th 1354, 1360–61 (11th Cir. 2022). The dispute in Drazen arose in the context of the Telephone Consumer Protection Act (“TCPA”), and addressed both unwanted phone calls and text messages.  While a settlement in Drazen was pending, the Eleventh Circuit held in Salcedo v. Hanna, 936 F.3d 1162, 1168 (11th Cir. 2019), that, contrary to precedent in other circuits, a single unwanted text message was not sufficient to give rise to Article III standing under the TCPA.  Because the panel was bound by Salcedo, and because the proposed class definition in the Drazen settlement included individuals whose sole harm was an unwanted text message, those individuals did not have standing.  The panel therefore vacated the district court’s approval of the settlement.…

Continue Reading Eleventh Circuit to Reconsider Standing Decisions

The Ninth Circuit recently held that a class could be certified with class members who lost less than a penny of interest.  But it also held that where some class members may have lost nothing at all, the district court must take a hard look at whether the predominance requirement has been met. …

Continue Reading Losing Less than a Penny Suffices for Standing for Class Certification, the Ninth Circuit Rules

A group of small businesses recently sued Bank of America in the Central District of California, alleging that it misled them about the terms of Paycheck Protection Program (PPP) loans. This marks yet another putative class action accusing lenders of misconduct in connection with the PPP.…

Continue Reading Lawsuit Accuses Bank of America of Misleading Companies About PPP Loans

A procedural violation of a state’s privacy statute is not alone enough to establish Article III standing—a plaintiff must suffer a concrete injury, such as an increased risk of identity theft.  The Fourth Circuit’s decision in O’Leary v. TrustedID, Inc., 2023 WL 2125996 (4th Cir. Feb. 21, 2023) confirms this—but also illustrates how Article III standing is a two-edged sword that may allow a plaintiff to defeat a defendant’s attempt to remove a case to federal court. 

The plaintiff in O’Leary filed a class action against TrustedID in South Carolina state court for allegedly violating South Carolina’s Financial Identity Fraud and Identity Theft Protection Act, S.C. Code Ann. § 37-20-180.  The statute prohibits requiring consumers to use six or more digits of their Social Security numbers to access a website without also requiring some other authentication measure.  The plaintiff alleged that TrustedID’s website required him to provide six digits of his Social Security number and did not have any other safety precautions, such as a password requirement.…

Continue Reading Fourth Circuit Remands Class Action to State Court After Plaintiff Questions His Own Standing

The Illinois Supreme Court has ruled that separate claims under the state’s Biometric Information Privacy Act (BIPA) accrue “with every scan or transmission” of a person’s biometric information—rejecting the idea that only a single claim accrues at the start of a series of similar scans or disclosures.

The decision, Cothron v. White Castle, substantially increases potential damages exposure for BIPA defendants.  The potential for large monetary awards is likely to spur more BIPA lawsuits in Illinois—and potentially beyond, as several other States have similar privacy laws taking effect in 2023.  At the same time, however, Cothron establishes that trial courts have discretion to determine the appropriate amount of statutory damages (subject to a $5,000-per-violation cap), and suggests that it would be an abuse of discretion for a trial court to permit such a sizeable award that a company’s financial viability would be threatened. …

Continue Reading New BIPA Claims Accrue “With Every Scan or Transmission” of Biometric Information, Says the Illinois Supreme Court  

The Ninth Circuit recently held in Chamber of Commerce v. Bonta that the Federal Arbitration Act preempts a California law that criminalizes employer conduct that requires employees to consent to arbitrate claims arising under the California Fair Employment and Housing Act.  This ruling came after the same panel previously held that the law, Assembly Bill 51, was not preempted because it focused on “pre-agreement” behavior and not the arbitration agreement itself.  In 2021, the panel sua sponte decided to rehear the case, apparently after Judge Fletcher (who was in the majority in both decisions) changed his mind on the law’s validity.  In doing so, the panel eliminated a circuit split it had previously created between itself and the First and Fourth Circuits.…

Continue Reading Ninth Circuit Reverses Course on Arbitration

Dior recently defeated an Illinois Biometric Information Privacy Act (“BIPA”) putative class action on the pleadings by arguing that BIPA’s exemption for patient data captured in a health care setting covered the plaintiff’s use of Dior’s virtual try-on tool while shopping for non-prescription sunglasses.  See Warmack-Stillwell v. Christian Dior, Inc., No. 1:22-CV-04633 (N.D. Ill. Feb. 10, 2023). …

Continue Reading Dior’s Virtual Try-On Tool Fits in BIPA Healthcare Exemption, Illinois Court Says

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

The Illinois Supreme Court recently held that all claims brought under the Biometric Information Privacy Act (“BIPA”) are subject to a five-year statute of limitations, partly overturning a lower court decision that had applied a one-year limitations period to some claims brought under the law.  See Tims v. Black Horse Carriers, Inc., 2023 IL 127801 (Feb. 2, 2023).

The plaintiff, Jorome Tims, filed a putative class action against his former employer, alleging that the trucking and logistics company violated BIPA by requiring its employees to use a time clock with a fingerprint scanner without (i) implementing a publicly available data retention and destruction policy; (ii) notifying employees and obtaining their consent when collecting their biometrics; and (iii) obtaining employee consent before disclosing their biometric information to third parties.  The defendant moved to dismiss the complaint, arguing that the plaintiff’s claims were barred by the one-year statute of limitations under the Illinois Code of Civil Procedure that governs actions for the “publication of matter[s] violating the right of privacy.”…

Continue Reading Illinois Supreme Court Holds Five-Year Statute of Limitations Applies to All Claims under BIPA

A group of musicians has lost its bid in Waite v. UMG Recordings, No. 1:19-cv-01091-LAK (S.D.N.Y. 2019), to assert copyright infringement claims on a classwide basis against the record labels holding copyrights in the musicians’ sound recordings.

Seeking to reclaim the copyrights, the plaintiffs had issued notices of termination pursuant to Section 203 of…