Litigation

On October 20, a California trial court granted summary judgment in favor of defendants in Mach v. Yardi Systems, Inc., rejecting class plaintiffs’ claims that defendants violated California’s antitrust law, the Cartwright Act, through their common use of rental pricing software.  The decision, which relied on “critical” evidence produced…

Continue Reading California Court Rejects First Algorithmic Price Fixing Case to Reach Summary Judgment

In a win for businesses using third-party technologies to power their websites, a California federal court applied the Ninth Circuit’s recent decision in Popa v. Microsoft Corporation to dismiss a “pen register” claim brought under the California Invasion of Privacy Act (“CIPA”) for lack of Article III standing.  Khamooshi v. Politico LLC, No. 24-cv-07836-SK, 2025 WL 2822879 (N.D. Cal. Oct. 2, 2025).  “As in Popa,” the Khamooshi court held that the plaintiffs—who alleged the collection of their device type, browser type, and “device fingerprints”—“identifie[d] no embarrassing, invasive, or otherwise private information collected,” as required to establish an Article III injury. Continue Reading Court Applies Popa to Dismiss CIPA Pen Register Claim for Lack of Article III Standing

In a win for implied preemption, the Ninth Circuit recently affirmed dismissal of supplement marketing claims under California’s Unfair Competition Law (UCL).  The case, Bubak v. Golo, LLC, No. 24-492 (9th Cir. Oct. 9, 2025), held that the plaintiff’s UCL claim was impliedly preempted because it depended entirely on alleged violations of the federal Food, Drug, and Cosmetic Act (FDCA), which may be enforced only by the federal government.Continue Reading Ninth Circuit Affirms Dismissal of Supplement Marketing Claims as Impliedly Preempted

Courts continue to grapple with the type of “concrete harm” that is required to confer Article III standing under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), particularly in data breach and privacy class actions.  On October 14, the Fourth Circuit contributed to this debate, holding that allegations that plaintiffs’ driver’s license data had been leaked and appeared on the dark web were sufficient to establish standing.

Holmes v. Elephant Ins. Co., — F.4th —, 2025 WL 2907615 (4th Cir. 2025), started with a 2022 data breach of Elephant Insurance Company’s networks.  Id. at *1.  Plaintiffs were Elephant customers whose driver’s license numbers were compromised in the breach.  Id.  They sued Elephant for alleged harms stemming from the breach.  Id. at *3.  Two plaintiffs specifically alleged that they had found their driver’s license numbers on the dark web; the others did not.  Id. at *2.  The district court dismissed plaintiffs’ claims, holding that none of the alleged injuries were sufficient to confer standing.  Id.  But the Fourth Circuit disagreed in part, reversing the lower court’s dismissal of the two plaintiffs who alleged that their driver’s license information appeared on the dark web, but affirming dismissal of the other two. Continue Reading Standing in the Dark:  Fourth Circuit Finds Standing for Driver’s License Information on the Dark Web

In 2018, the Ninth Circuit held in Lusnak v. Bank of America, N.A. that California’s interest-on-escrow law was not preempted by the National Bank Act because the California law did not prevent or significantly interfere with the bank’s exercise of its powers.  883 F.3d 1185 (9th Cir. 2018).  Six years after Lusnak, the Supreme Court held in Cantero v. Bank of America that test for preemption under the National Bank Act requires courts to “make a practical assessment of the nature and degree of the interference caused by a state law,” and courts should do so by engaging in a “nuanced comparative analysis” that compares the interference caused by previous state laws that were challenged as preempted before the Supreme Court to the law at issue.  602 U.S. 205, 219–21 (2024). Continue Reading Post-Cantero, Ninth Circuit Allows Prior National Bank Act Preemption Decision To Remain Standing

Lenders often require borrowers to keep money in a mortgage escrow account, and those funds are used to pay taxes, mortgage insurance, and other costs throughout the year.  At least 12 states require lenders to pay the borrower interest on the money held in these escrow accounts.  And for more than a decade, certain national banks have challenged the applicability of those state laws to them, arguing the laws are preempted by the National Bank Act because they would significantly interfere with the exercise of a federally granted banking power.[1]  

These cases have resulted in a trip to the Supreme Court.  In Cantero v. Bank of America, the Supreme Court explained that the test for preemption under the National Bank Act requires courts to “make a practical assessment of the nature and degree of the interference caused by a state law,” and courts should do so by engaging in a “nuanced comparative analysis” that compares the interference caused by previous state laws that were challenged as preempted before the Supreme Court to the law at issue.[2]  602 U.S. 205, 219–21 (2024). Continue Reading Post-Cantero, First Circuit Sets Demanding National Bank Act Preemption Test

A federal court in North Carolina dismissed a putative data breach class action against Bojangles because the plaintiffs failed to show that there was an actual or imminent misuse of their personal information as a result of the breach.  Dougherty v. Bojangles’ Restaurants, Inc., 2025 WL 2810673 (W.D.N.C. Sept. 30, 2025).Continue Reading Federal Court Fries Data Breach Class Action for Lack of Standing

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

Expert evidence commonly plays an important role in class certification determinations.  On August 5, the Seventh Circuit addressed this issue, holding that in a proposed antitrust class action, the district court erred in certifying a class when it failed to engage with conflicting expert evidence regarding antitrust impact that could have established lack of predominance.        

The case, Arandell Corp. v. Xcel Energy Inc., — F.4th —, 2025 WL 2218111 (7th Cir. 2025) was a long-running natural gas price fixing case.  Plaintiffs moved to certify a Rule 23(b)(3) class.  They argued that common questions of law or fact predominated, including “whether the class paid higher prices for natural gas[.]”  Id. at *4.  Plaintiffs and defendants had competing experts on the predominance issue as it related to impact.  Id. Continue Reading District Courts Must Address Conflicting Expert Evidence to Certify Antitrust Class Action, Seventh Circuit Rules

Last month, a California federal court in Dai v. SAS Institute, No. 4:24-cv-02537 (N.D. Cal. 2025), dismissed a proposed antitrust class action complaint against six nationwide hotel operators alleging that the hotels’ common use of revenue management software to set their room prices amounted to a per se illegal “hub-and-spoke” conspiracy to fix hotel prices in violation of Section 1 of the Sherman Act. Continue Reading California Court Dismisses Hotel Algorithmic Price Fixing Claims