Litigation

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 & Clinics, No. 3:23-cv-00025 (S.D. Iowa Feb. 16, 2024) (unpublished).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

The Ninth Circuit recently upheld a California district court’s dismissal of a proposed class action against Shopify for lack of personal jurisdiction, cautioning that subjecting web-based platforms to jurisdiction in every forum in which they are accessible would lead to the “eventual demise of all restrictions” on personal jurisdiction.

In Briskin v. Shopify, Inc., 2022 WL 1427324 (N.D. Cal. May 5, 2022), the plaintiff alleged that Shopify, a Canadian-based company that provides online merchants throughout the United States with an e-commerce payment platform, violated California privacy and consumer protection laws by allegedly collecting his sensitive personal information while using a California-based retailer’s website.  The district court in the Northern District of California dismissed the action, finding that it lacked both general and specific personal jurisdiction over Shopify. 

A panel of the Ninth Circuit affirmed the district court’s dismissal of the complaint for lack of personal jurisdiction, holding that Shopify could not be subjected to jurisdiction in California where it did not expressly aim the alleged conduct implicated by the lawsuit toward California.  Briskin v. Shopify, Inc., 2023 WL 8225346 (9th Cir. Nov. 28, 2023).  Briskin confirms the Ninth Circuit’s view that for interactive websites and other web-based services and platforms that operate nationwide, “something more” is needed to satisfy the express aiming requirement for personal jurisdiction.Continue Reading Ninth Circuit Finds No Personal Jurisdiction in California Over Website

            December 1 marks an important and long-awaited change to Federal Rule of Evidence 702.  The Rule, pertaining to the testimony of expert witnesses, has not received a substantive update since 2000, when it was amended in the wake of the Daubert decision.  Now, more than 20 years later—and after years of study—the Rule has been amended to make two issues clear:  (1) that the proponent of an expert’s testimony must establish the admissibility of that testimony by a preponderance of the evidence; and (2) that an expert’s opinion must reflect a reliable application of his or her methodology to the case.  These changes reinforce the key gatekeeping role that courts play in ensuring that only helpful, reliable expert testimony is heard by the factfinder. Continue Reading A Closer Look:  Changes To F.R.E. 702 Will Help Ensure Courts Follow The Expert ‘Gatekeeping’ Function