Litigation

This blog has covered recent decisions from the Eleventh Circuit that have taken a hard look at class action settlements.  For example, we previously discussed the Eleventh Circuit’s per se prohibition on the inclusion of incentive awards for class action representatives in class action settlements.  See Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020) (vacating settlement in part because it included incentive awards).  Just recently, the Eleventh Circuit vacated the approval of another class action settlement because it “included relief that [the district court] had no jurisdiction to award.”  Smith v. Miorelli, 93 F.4th 1206, 1209 (11th Cir. 2024).Continue Reading Eleventh Circuit Vacates Settlement Approval Because Plaintiffs Lacked Standing to Seek Injunctive Relief

A Washington court recently dismissed with prejudice putative class action claims against Seattle Children’s Hospital asserting that use of third-party tracking technology on its website constituted wiretapping and other privacy law violations.Continue Reading Washington State Court Dismisses Wiretapping and Other Claims Involving Hospital Website

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 & Clinics, No. 3:23-cv-00025 (S.D. Iowa Feb. 16, 2024) (unpublished).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

Another federal judge in the Eastern District of Michigan dismissed a putative class action against a vehicle manufacturer on prudential mootness grounds, holding that the manufacturer’s voluntary recall program mooted the plaintiffs’ claims. See Letson v. Ford Motor Co., 2024 WL 845844 (E.D. Mich. Feb. 28, 2024).Continue Reading Another Federal Court Holds that Recall Moots Class-Action Claims

This blog recently covered a decision from the Northern District of California denying a defendant’s motion for summary judgment on a plaintiff’s “greenwashing” claims, which asserted that defendant’s “non-toxic” and “Earth-friendly” labels were false and misleading.  See Bush v. Rust-Oleum Corp., 2024 WL 308263 (N.D. Cal. Jan. 26, 2024).  Now, the same court has granted class certification on those claims, demonstrating that not only can these claims be difficult to defeat before trial, but it can also be difficult to prevent certification on those claims as well.Continue Reading “Greenwashing” Claims Certified For Class Treatment

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

As companies have increased efforts to represent their products as environmentally friendly, “greenwashing” lawsuits—which target companies (often under consumer protection statutes) based on allegations of false or misleading statements regarding the environmental impact of their products or practices—have also increased. A recent order from the district court in the Northern District of California illustrates the difficulty in attempting to defeat these claims before trial if a strong evidentiary record has not been developed.Continue Reading N.D. Cal. Judge Allows “Greenwashing” Claims to Proceed to Trial

On December 28, the Western District of New York denied class certification in Miami Products & Chemical Co. v. Olin Corp, 1:19-cv-00385, an antitrust lawsuit alleging collusion over the price for caustic soda—a chemical used in various industries from pharmaceuticals to detergents.  The proposed class of caustic soda purchasers alleged that defendants, the largest soda manufacturers, colluded to increase prices through parallel public price announcements.  After closely scrutinizing the parties’ dueling economic expert reports, the court determined that plaintiffs had not satisfied the predominance standard of Rule 23(b)(3) as to questions of antitrust injury for two principal reasons.Continue Reading Rigorous Scrutiny of Expert Evidence Results in Denial of Caustic Soda Class Certification

A Pennsylvania federal district court overseeing a multi-district litigation recently dismissed various privacy and wiretapping claims against two online retailers, finding that allegations of interception and disclosure of mere “browsing activity” on those retailers’ websites is not “sufficiently personal or private” to confer Article III standing. 

In In re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping Litigation, 2:23-cv-04008-MAK (E.D. Pa. Dec. 5, 2023), the district court consolidated six proposed class actions involving eight plaintiffs, with each alleging that BPS Direct, LLC and Cabela’s, LLC, who operate retail stores known as Bass Pro Shops and Cabela’s, unlawfully intercepted and disclosed their private information through the use of session replay software on their websites.  The district court dismissed most of the plaintiffs’ claims, holding that they failed to adequately allege a concrete harm sufficient to support Article III standing.Continue Reading Pennsylvania Multi-District Wiretapping Litigation Finds Website Users Lack Article III Standing

The Ninth Circuit recently issued a key Prop 65 decision that could have broader implications for businesses subjected to its regulatory regime. 

Enacted via a ballot initiative, Prop 65 requires a company to warn consumers when one of its products contains a chemical known to the state of California to be carcinogenic or harmful to reproductive health.  In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) placed glyphosate on its list of chemicals requiring a warning after the International Agency for Research on Cancer (IARC) concluded that the herbicide was “probably carcinogenic.”  Shortly after, a group of agricultural and business groups sued to enjoin California from requiring glyphosate warnings, arguing that the requirement violated the First Amendment.  The Ninth Circuit agreed.  See Nat’l Ass’n of Wheat Growers v. Bonta,– F.4th–, 2023 WL 7314307, at *2 (9th Cir. Nov. 7, 2023).Continue Reading Citing First Amendment Issues, Ninth Circuit Kills Prop 65 Glyphosate Warning Requirement