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?

The District Court for the District of New Jersey recently dismissed a putative class action alleging that defendants sold baby foods with high levels of heavy metals, holding that plaintiffs failed to plead an injury sufficient to support standing.  In re Plum Baby Food Litigation, No. 1:21-cv-02417-NLH-SAK, 2022 WL 16552786 (D.N.J. Oct. 31, 2022).  This decision adds to the list of cases in the Third Circuit holding that merely alleging exposure to toxic substances in consumer products, without more, is insufficient to establish Article III standing.  See Covington’s prior blog post on the trend in the Third Circuit here.

Continue Reading District of New Jersey Continues Third Circuit Trend of Finding Mere Exposure to Toxic Substances in Consumer Products Insufficient for Standing

On October 17, the District of Massachusetts added to the growing line of federal courts that have held a mere data breach, without additional harm, is insufficient to grant customers Article III standing.  See Webb v. Injured Workers Pharmacy, LLC, 2022 WL 10483751, at *1 (D. Mass. Oct. 17, 2022).  In February 2022, a home delivery pharmacy notified over 75,000 affected customers that hackers broke through its defenses and accessed patients’ personal data.  Two of these customers filed a putative class action against the pharmacy, alleging various tort and contract theories.  The court dismissed their claims for lack of standing, holding that plaintiffs had failed to allege any actionable harm stemming from the data breach despite their allegations that the breach caused them significant emotional harm.

Continue Reading Data Breach, Without Allegations of Misuse, Isn’t Enough for Article III Standing

A court in the District of Kansas recently remanded a data breach class action against a hospital to state court for lack of standing, holding that the named plaintiffs had failed to demonstrate any injury in fact that was fairly traceable to the exposure of their personal and health information.  See Memorandum and Order, Blood v. Labette County Medical Center, No. 5:22-cv-04036-HLT-KGG (D. Kansas Oct. 20, 2022), ECF 27.

Continue Reading Hospital Data Breach Class Action Fails Due to “Speculative” Injury

In Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 163 (2016), as revised (Feb. 9, 2016), the Supreme Court held that an unaccepted offer of judgment cannot moot a plaintiff’s claims. While that decision left some questions unanswered, recent Court of Appeals decisions have applied its reasoning to broader situations, such as holding that an unaccepted refund offer made prior to litigation does not deprive a plaintiff of standing to sue.  Adam v. Barone, 41 F.4th 230, 234 (3d Cir. 2022).

Another court recently added a twist to the analysis, holding that offering a full refund may make dismissal appropriate under the prudential mootness doctrine.  See Sharp v. FCA US LLC, 2022 WL 14721245 (E.D. Mich. Oct. 25, 2022).

Continue Reading Even After Campbell-Ewald, a Refund Offer Can Still Sometimes Moot a Case

The Eleventh Circuit, sitting en banc, recently applied TransUnion to hold that a plaintiff lacked Article III standing to bring claims under the Fair Debt Collection Practices Act.  Hunstein v. Preferred Collection & Mgmt. Servs., Inc., No. 19-14434, 2022 WL 4102824 (11th Cir. Sept. 8, 2022)(en banc).  The en banc decision reversed a controversial panel decision allowing a plaintiff to sue a collection agency for disclosing information about his debt to the agency’s mail vendor.

Continue Reading Eleventh Circuit, Sitting En Banc, Reverses Panel Decision And Holds FDCPA Plaintiff Lacks Standing