Practice Pointers

Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading.  In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances.  In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. Continue Reading A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims

Courts have recently been grappling with an influx of class actions alleging that company websites are in violation of wiretapping and other privacy laws when using third-party technology to provide services on their websites.  Three different federal courts recently dismissed cases on similar grounds, demonstrating the challenges plaintiffs face with maintaining them and strategies defendants should keep in mind to defeat them. 

Two of the cases accuse healthcare providers of improperly sharing personal health information with third-party technology companies through the use of pixel technologies on the healthcare provider’s website.  In the first case, Doe v. Davita, Inc., plaintiffs accused Davita—a kidney dialysis provider—of violating the California Invasion of Privacy Act (“CIPA”) and other laws by purportedly collecting “patients’ personal and sensitive medical information on the Online Platforms and … improperly shar[ing] [this information] with the Tracking Technologies without patients’ consent.”  2024 WL 1772854, at *2 (S.D. Cal. April 24, 2024).  The court disagreed and dismissed the claims, holding that plaintiffs did “not explain what specific information they provided to Defendant” and calling their claims “conclusory.”  Id.  The complaint, said the court, was “devoid of any facts supporting” plaintiffs’ contentions that Davita disclosed “personal, confidential, and sensitive medical information; medical treatment; and payment information” with the third party.  Id. Continue Reading Lack of Plaintiff-Specific Allegations Dooms California, Pennsylvania Privacy-Based Class Actions

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 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

We previously covered the Eleventh Circuit’s decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), in which the Eleventh Circuit relied on two Supreme Court decisions from the 1880s to prohibit courts from awarding incentive or service awards to class representatives in class settlements.  Id. at 1255 (citing Trustees v. Greenough, 105 U.S. 527 (1881), and Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885).  Although the Eleventh Circuit was the first federal appellate court to bar these awards in all circumstances, a recent Second Circuit decision agreed that these awards are “likely impermissible” under Supreme Court precedent, while observing that it would take the entire Second Circuit to overturn prior precedent upholding incentive awards.  See Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th 704, 721 (2nd Cir. 2023).  The Department of Justice has likewise implied that it agrees with the Eleventh Circuit’s position, relying on the Johnson decision in an effort to block incentive awards from a class settlement in a District of Columbia court.  Continue Reading Supreme Court Denies Cert on Incentive Awards

When a company learns it is the subject of a class-action lawsuit, insurance coverage may not be top of mind, but considering available coverage for the defense and resolution of the case should be a priority.  A variety of insurance policies may provide coverage depending on the underlying allegations, even if some of the allegations or relief sought present coverage challenges.  To ensure companies are taking full advantage of available coverage, and meeting any notice obligations under insurance policies, it is wise to dust off the applicable policies and consult with coverage counsel.Continue Reading Practice Pointers:  Always Look for Hidden Treasure – an Insurance Coverage Checklist When Hit with a Class Action

We previously wrote about the rising trend of mass arbitration and how companies and arbitration providers have responded to it thus far, including by adopting new rules and contract terms specifically geared towards coordinated proceedings.  It may be tempting to impose strict controls on how mass arbitrations can proceed.  But in considering their options, companies

On the heels of the Ninth Circuit’s recent decision in Bowerman—which held that questions concerning the “existence of damages” for each class member can prevent certification—the Eleventh Circuit became the latest in a growing number of courts to conclude that class certification should be denied when plaintiffs cannot prove that each individual class member actually suffered damages.Continue Reading Individualized Damages Issues Preclude Class Certification in Eleventh Circuit

On July 29, Judge William Alsup of the Northern District of California issued a decertification order in a long-running class action dispute concerning Cricket Wireless’s 4G advertising, ruling that plaintiff’s counsel made “too critical a mistake” in fashioning their class-wide damages model.  See Freitas v. Cricket Wireless, LLC, 2022 WL 3018061, at *6 (N.D. Cal. July 29, 2022).Continue Reading “Critical Mistake” In Damages Model Sinks California Class Action