A federal district court in the Northern District of California granted a motion to dismiss a putative class action where the plaintiff claimed that the defendant violated the California Invasion of Privacy Act (“CIPA”) § 631 for using a third-party chat feature on its website. The court dismissed the plaintiff’s claim for lack of Article III standing but granted leave to amend.
Litigation
Third Circuit Flirts with Narrow View of Warranties Based on Third-Party Certification
By Jonah Panikar on
False labeling class actions are often mired in debates about how a reasonable consumer would understand a product’s label. In many cases, the fight is centered on what third-party certification marks warrant to reasonable consumers. In Dzielak v. Whirlpool Corporation, — F.4th —, No. 20-2551, 2023 WL 6331102 (3rd Cir. Sept. 29, 2023), the Third Circuit articulated powerful arguments against finding that these marks create broad warranties.…
All but One Claim in Pathology Lab Data Breach Class Action Tossed on Motion to Dismiss
By Ellen Choi & Kathryn Cahoy on
Only one claim survived dismissal in a recent putative class action lawsuit alleging that a pathology laboratory failed to safeguard patient data in a cyberattack. See Order Granting Motion to Dismiss in Part, Thai v. Molecular Pathology Laboratory Network, Inc., No. 3:22-CV-315-KAC-DCP (E.D. Tenn. Sep. 29, 2023), ECF 38.…
Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft
By Sam Greeley & Kathryn Cahoy on
A federal district court in the Northern District of California granted in part a motion to dismiss putative class action claims filed against Western Digital, a hard drive manufacturer whose older devices experienced a cyber-attack, where the plaintiffs alleged that their stored data was deleted but not that it was stolen. While plaintiffs will be permitted to maintain claims related to the data loss, they lack standing to assert claims based on future data misuse.…
California Federal Court Clamps Down on ‘En Masse’ Class Claims Identified by AI
By Marc Capuano, Steve Petkis & Gregory Halperin on
Courts and litigants continue to grapple with the new frontier of artificial intelligence (“AI”). One recent case in California demonstrates a new wrinkle in this evolving landscape—the use of AI to aggregate class claims.
Because class settlements bind absent class members who do not object or opt out, Rule 23 requires courts to carefully review and approve them as “fair, reasonable, and adequate.” An important part of this inquiry is making sure class members are given adequate notice of the terms of the proposed settlement and their rights. When class members are required to submit claims to access settlement benefits, parties often turn to professional claims administration companies to assist in providing notice and facilitating the claims process. Under Rule 23, courts closely monitor the information that flows from class counsel and claims administrators to putative class members to make sure it complies with due process.…
Continue Reading California Federal Court Clamps Down on ‘En Masse’ Class Claims Identified by AI
Another Win for Preemption in Over-The-Counter Drug Labeling Case
By Steve Petkis, Andrew Soukup & Emily Ullman on
Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs. Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense. In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids states from imposing OTC labeling requirements that are “different from,” “in addition to,” or “otherwise not identical” with those provided under federal law, 21 U.S.C. § 379r(a), state-law claims that directly challenge or conflict with the FDA’s decision-making for OTC drug labels are expressly preempted.…
Continue Reading Another Win for Preemption in Over-The-Counter Drug Labeling Case
Second Circuit Holds that Rule 23(e) Prohibits Presumption of Fairness of Arm’s-Length Negotiated Class Settlements
By Jeffrey Huberman & Sonya Winner on
In Moses v. New York Times Co., 2023 WL 5281138 (2d Cir. Aug. 17, 2023), the Second Circuit vacated and remanded the approval of a class action settlement because the district court applied the wrong legal standard in determining that the settlement was fair. But in doing so, the court reiterated that incentive awards for class action representatives are permissible in the Second Circuit.…
California Federal Court Finds That Plaintiffs Must Arbitrate Their BIPA Claims
By Billie Mandelbaum on
Recently, a court in the Northern District of California compelled arbitration in a putative privacy class action, concluding that the arbitration provision included in a photo-editing app’s terms of use was not unconscionable. See Flora, et al., v. Prisma Labs, Inc., 2023 WL 5061955 (N.D. Cal. Aug. 8, 2023).…
Continue Reading California Federal Court Finds That Plaintiffs Must Arbitrate Their BIPA Claims
Fifth Circuit Declines to Wade Into Circuit Split on Relationship Between Standing and Class Certification
By Isaac Chaput & Jonah Panikar on
In a recent published decision, the Fifth Circuit declined to articulate a rule for the “order and depth in which” it “grapples with constitutional standing and the Rule 23 inquiry.” Chavez v. Plan Benefit Services, Inc., __ F.4th __, No. 22-50368, 2023 WL 5160393 (5th Cir. Aug. 11, 2023). The court concluded that the plaintiffs—three employees who participated in health and retirement plans administered by the defendants—had standing to sue on behalf of absent class members who participated in thousands of different benefits plans administered by the defendants. The court went on to affirm the district court’s certification of two classes, each under both Rules 23(b)(1)(B) and 23(b)(3).…
Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA
By Marianne Spencer on
Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.” See Trim v. Reward Zone USA LLC, — F.4th –, 2023 WL 5025264, at *4 (9th Cir. Aug. 8, 2023). …
Continue Reading Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA