Litigation

Last month in In re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, the Southern District of New York denied certification to a proposed class of direct purchasers who alleged that Keurig, a manufacturer of branded coffee pods and brewers, violated antitrust laws by allegedly suppressing competition from generic coffee pod manufacturers.  Although the plaintiffs offered statistical evidence suggesting that Keurig’s coffee pod prices were elevated on average, the court held that individual issues of antitrust impact predominated over common questions because Keurig directly negotiated prices with large buyers that might fully offset any increase in average prices.

Continue Reading Aggregate Damages Model, List Prices Insufficient to Demonstrate Classwide Antitrust Injury, Says Federal District Court

In Cline v. Sunoco, Inc. (R&M), 2025 WL 3199871 (10th Cir. Nov. 17, 2025), the Tenth Circuit adopted the majority view that “administrative feasibility” for identifying class members is not an independent requirement for certifying a class under Federal Rule 23.  The ascertainability standard endorsed by the court requires…

Continue Reading Tenth Circuit Adopts Majority View not Requiring “Administrative Feasibility” for Ascertainability

Last week, the Third Circuit affirmed dismissal of a putative class action asserting that defendant Quest Diagnostics violated the California Invasion of Privacy Act (“CIPA”) and the Confidentiality of Medical Information Act (“CMIA”) by employing a website pixel to track and collect data about their website activity for advertising purposes.  See Cole v. Quest Diagnostics Inc., No. 25-1449, 2025 WL 3172640 (3d Cir. Nov. 13, 2025).  The Third Circuit held that Quest was not liable under CIPA for aiding and abetting wiretapping because no wiretapping had occurred, nor under CMIA because Plaintiffs had not alleged the disclosure of protected “medical information.”

Continue Reading Third Circuit Affirms Dismissal of CIPA and CMIA Claims

Recently, a California federal court granted summary judgment for defendant Eating Recovery Center (“ERC”) on a plaintiff’s California Invasion of Privacy Act (“CIPA”) § 631(a) wiretapping claim, joining other California federal courts that have granted summary judgment on CIPA claims for a plaintiff’s failure to “satisfy [CIPA’s] ‘in transit’ requirement as a matter of law.”  In granting summary judgment, the court critiqued CIPA’s language as “ill-suited for application to internet communications” and called upon the California Legislature to “step up” and “speak clearly” about whether and how CIPA applies to website-based data collection tools.  Doe v. Eating Recovery Ctr., LLC, –F. Supp. 3d–, 2025 WL 2971090 (N.D. Cal. Oct. 17, 2025).

Continue Reading California Court Grants Summary Judgment for Defendant, Urging the California Legislature to “Bring CIPA”—“A Total Mess”—“Into the Modern Age”

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