If a tree falls in the forest but no one is around to hear it, did it make a sound?  Philosophers disagree.  If a product contains a contaminant but no one gets sick, did it cause an injury?  Judges disagree.

In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury.  These so-called “no-injury” theories of liability were largely rejected by courts.  E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).

While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud.  E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).

Whether and when “no-injury” claims are viable is a hotly debated question.  As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.

Continue Reading A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?

Can plaintiffs spring a class action on defendants in the late stages of a case?  The Seventh Circuit recently answered no in Ali v. City of Chicago, 34 F.4th 594 (7th Cir. 2022), rejecting so-called stealth class actions and reaffirming a seemingly obvious rule: a class action “must be brought as a class action.”

Continue Reading Seventh Circuit Rejects “Stealth” Class Actions

Late last week, the Seventh Circuit affirmed a trial court’s ruling granting dismissal at summary judgment of claims against FCA US LLC (“FCA,” formerly known as Chrysler) and Harman International Industries, Inc. (“Harman”) for lack of Article III standing.  See Flynn v. FCA US LLC, — F. 4th —-, 2022 WL 2751660 (7th Cir. July 14, 2022).  Plaintiffs’ class-action complaint claimed injuries arising out of an alleged cybersecurity vulnerability in an infotainment system designed by Harman for installation in FCA vehicles manufactured between 2013 and 2015.  See id. at *1.  However, after discovery, the Plaintiffs offered the trial court no evidence establishing that the vulnerability actually caused them any harm. 

Having failed to cite “any factual support for their claimed injury” in the trial court, id. at *3, the Plaintiffs shifted gears and sought to rely on appeal on portions of their expert reports regarding an “overpayment” theory that they had not relied on in the trial court, id. at *4.  Under that argument, Plaintiffs claimed that “they paid more for their vehicles than they would have if they had known about the cybersecurity vulnerability.”  Id. at *1.  The Seventh Circuit rejected Plaintiffs’ bid to rely on their expert reports as arising “far too late,” id. at *4, and affirmed the trial court’s ruling with a procedural modification to reflect a dismissal for lack of subject-matter jurisdiction without leave to amend, id. at *5.

Continue Reading Seventh Circuit Affirms Dismissal Of Class Claims Based Upon Speculative Hacking Risk

Last week, an Illinois federal district court granted the defendant’s motion to stay in Stegmann v. PetSmart, No. 1:22-cv-01179 (N.D. Ill.).  The case implicates the evolving law surrounding the scope of the Illinois Biometric Information Privacy Act (“BIPA”) and  a pending Illinois Supreme Court case that could provide an important defense to certain BIPA suits.

Continue Reading Federal Court Stays Suit Implicating Accrual of Claims Under the Illinois Biometric Information Privacy Act

In a recent decision, the Seventh Circuit answered a key question in Rule 23 commonality analyses: whether at the certification stage plaintiffs need to establish the terms of an allegedly common policy, or only its mere existence.  Ross v. Gossett, — F.4th —-, 2022 WL 1421315 (7th Cir. May 5, 2022).

The putative class consisted of all Illinois Department of Corrections inmates housed in April through July 2014 at four IDOC correctional centers.  They sued various IDOC officials for alleged constitutional violations stemming from prison-wide “shakedowns” executed by the defendants for purposes of sanitation and to discover and remove contraband.  They further alleged that the shakedowns were conducted pursuant to a single, unified policy across all four prisons. 



Continue Reading Seventh Circuit Explains That for Commonality Purposes Plaintiffs Need Not Establish the Content of a Uniform Policy, Only Its Existence

The Seventh Circuit recently gave defendants another arrow in their quiver to use when arguing that plaintiffs lack Article III standing to assert claims for violations of federal laws, even when the plaintiff demonstrated that she suffered emotional distress as a result of those violations.

Continue Reading Emotional Distress Is Not Good Enough for Standing in the Seventh Circuit 

The Seventh Circuit recently shed light on what defendants need not do when invoking an affirmative defense that the defendant contends undermines predominance:  establish that the affirmative defense would, on the merits, defeat at least some class claims.

Continue Reading Must Defendants Prove Some Class Claims are Subject to an Affirmative Defense Undermining Predominance?  The Seventh Circuit Says No.