Ninth Circuit

A federal judge in the Western District of Washington recently dismissed a class action complaint accusing Overlake Hospital Medical Center of unlawfully disclosing the health data of patients who accessed its websites to third parties.  See Nienaber v. Overlake Hosp. Med. Ctr., 2024 WL 2133709 (W.D. Wash. May 13, 2024).  Plaintiff Jacq Nienaber, an Overlake patient, alleged that the hospital shared her private data with Meta and other third parties through the use of the Meta Pixel and Meta’s Conversions Application Programming Interface on its public website and private patient portal. Continue Reading Washington Federal Court Dismisses Privacy Claims Involving Hospital Website

A district court judge in the Northern District of California recently denied class certification in a putative privacy class action against Google and its Real Time Bidding (“RTB”) advertising system. Plaintiffs moved to certify both damages and injunctive relief classes based on allegations that Google shared personal information through its RTB system. The court denied with prejudice certification under Rule 23(b)(3), finding that individual questions about class member’s past consent to—and subjective understanding of—Google’s disclosures would predominate. The district court also denied the proposed injunctive relief class on the grounds that the proposed class definition was “fail-safe” and that plaintiffs had not met their burden to prove that their data was representative of the proposed class, but the court did so with leave to amend and requested further briefing. Plaintiffs subsequently petitioned for leave to appeal the denial to the Ninth Circuit.Continue Reading Affirmative Defense of Consent Leads to 23(b)(3) Class Certification Denial in Google Ad Bidding Privacy Litigation

In a recent decision, the Ninth Circuit concluded that a damages model that had been developed, but not actually applied to the underlying data, sufficiently showed that damages were susceptible to common proof for purposes of class certification. 

The case, Lytle v. Nutramax Lab’ys, Inc., — F.4th— 2024 WL 1710663 (9th Cir. Apr. 22, 2024) concerns allegations that the defendants misled purchasers of their dog supplement—marketed as improving dogs’ joints and mobility—when allegedly no such benefits exist.  To support class certification, the plaintiffs put forward an expert who had created a conjoint survey that they claimed could calculate damages on a class-wide basis.  However, the plaintiffs conceded that the expert had not yet applied his analysis, relying instead on the expert’s prediction that his analysis could successfully measure the damages suffered by the class.   Continue Reading Ninth Circuit Holds that Unexecuted Damages Model is Sufficient for Class Certification

Plaintiffs appear to be increasingly focused on keeping certain types of class actions, including cases brought under the California Invasion of Privacy Act (CIPA), in California state court, likely seeking to take advantage of less rigorous pleading and class certification requirements.  Some plaintiffs are even bringing individual claims and affirmatively alleging that less than $75,000 is at stake to avoid removal under CAFA or diversity jurisdiction, while purporting to reserve the right to add class allegations at a later stage.  See, e.g., Casillas v. Hanesbrands Inc., 2024 WL 1286188 (C.D. Cal. Mar. 22, 2024) (remanding individual CIPA claim to state court). 

A recent decision in the Central District of California, Doe v. PHE, Inc., 2024 WL 1639149 (C.D. Cal. Apr. 15, 2024), should help defendants seeking to remove putative class actions to federal court under CAFA.Continue Reading A Closer Look: Recent C.D. Cal. Decision Strengthens Defendants’ Arguments for CAFA Removal

On April 15, the U.S. Supreme Court declined a request by Visa and Mastercard to review a D.C. Circuit decision that appeared to add to a circuit split about how lower courts are to determine whether common issues predominate under Federal Rule of Civil Procedure 23(b)(3). 

The case, Visa Inc. v. Nat’l ATM Council, Inc., Case No. 23-814, was part of a long-running dispute between the card companies and ATM operators about ATM fees.  In July, the D.C. Circuit upheld the certification of three different Plaintiff classes over the card companies’ argument that the district court had failed to perform a “rigorous analysis” about whether class-wide issues predominated.  Nat’l ATM Council, Inc. v. Visa Inc., 2023 WL 4743013 (D.C. Cir. 2023).  Although it noted that the district court’s analysis was “notably terse,” the D.C. Circuit found no error in the lower court’s holding that Plaintiffs need only demonstrate a “colorable” method of proving class-wide injury and that the Plaintiffs’ evidence satisfied that test.  Rejecting the card companies’ argument that Plaintiffs’ class-wide injury methodology failed to weed out uninjured class members, the court observed that “Defendants’ contention that their model showing unharmed members is more accurate and credible than Plaintiffs’ different models showing that all members were harmed is … precisely the kind of material factual dispute” that should be resolved at the merits, not class certification, stage.  Id. at *11.    Continue Reading Supreme Court Declines to Wade into Class Certification “Predominance” Issue

In class actions challenging data collection, whether the defendant’s privacy policy disclosed the collection is almost always a key question at the dismissal stage.  In a memorandum decision likely to be useful to defendants, the Ninth Circuit recently affirmed dismissal of claims challenging Google’s collection of data from third-party apps on its Android mobile operating system, holding that Google’s Privacy Policy clearly disclosed the collection.  See Hammerling v. Google LLC, No. 22-17024 (9th Cir. Mar. 5, 2024) (unpublished).Continue Reading Ninth Circuit Affirms Dismissal of Data Privacy Claims Based on Disclosure of Collection in Privacy Policy

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

The Ninth Circuit recently dismissed a putative class action by an online business over allegations that Google placed search results over the business’s website. While the district court had denied a motion to dismiss, the Ninth Circuit reversed, holding that copies of websites are not chattel that could support a trespass to chattel claim and that the Copyright Act preempted the remaining claims of unjust enrichment, implied in law contract, and unfair competition.Continue Reading Ninth Circuit Dismisses Website Framing Claim as Preempted by Copyright

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

The Class Action Fairness Act permits removal of lawsuits brought under state-law rules similar to Federal Rule of Civil Procedure 23.  A court in the Northern District of California recently denied a motion to remand even though the complaint did not reference California Code of Civil Procedure section 382, California’s Rule 23 analogue.  See Pac. Coast Fed’n of Fishermen’s Associations, Inc. v. Chevron Corp., No. 18-CV-07477-VC, 2023 WL 7299195 (N.D. Cal. Nov. 1, 2023).  The ruling underscores that in the Ninth Circuit, “the CAFA removal inquiry focuses on the complaint’s substance, not formal labels and allegations.”  Id. at *2.Continue Reading Court Finds CAFA Removal Proper, Even Though Complaint Did Not Explicitly Invoke Rule 23 Equivalent