Article III Standing

A recent New Jersey federal court decision dealt a major blow to class action litigation that seek economic damages associated with the sale of products withdrawn from the market. 

In Gibriano v. Eisai, Inc., et al., 2024 WL 1831546 (D.N.J. Mar. 31, 2024), the plaintiff sought to represent a nationwide class of consumers who purchased a weight-loss medication that was recently voluntarily withdrawn from the market based on FDA’s concerns about potential cancer risk.  The plaintiff did not claim that she had suffered personal injuries.  Rather, she sought money damages, alleging that she over-paid because the medication “did not meaningfully impact her weight” and because the price she paid was “based on the understanding that it was safe.”  She further alleged that, because of the medication’s potential risks, “no reasonable physician would have prescribed [it] and no reasonable consumer would choose to purchase [it].”  In support of her allegations, the plaintiff attached to her complaint a consumer survey suggesting that knowledge of cancer risk would reduce the amount consumers would pay for a medication. Continue Reading Class-action claims seeking economic damages for purchase of withdrawn medicine defeated on Article III standing grounds.

This blog has covered recent decisions from the Eleventh Circuit that have taken a hard look at class action settlements.  For example, we previously discussed the Eleventh Circuit’s per se prohibition on the inclusion of incentive awards for class action representatives in class action settlements.  See Johnson v. NPAS Sols., LLC, 975 F.3d 1244 (11th Cir. 2020) (vacating settlement in part because it included incentive awards).  Just recently, the Eleventh Circuit vacated the approval of another class action settlement because it “included relief that [the district court] had no jurisdiction to award.”  Smith v. Miorelli, 93 F.4th 1206, 1209 (11th Cir. 2024).Continue Reading Eleventh Circuit Vacates Settlement Approval Because Plaintiffs Lacked Standing to Seek Injunctive Relief

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

We are seeing a growing number of class actions alleging consumer harms from corporate carbon offset policies.  On October 13, a California federal court threw out such a case (albeit with leave to amend) against e-commerce site Etsy.   

The lawsuit, Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. 2023), stemmed from a number of carbon offset promises Etsy has made since 2019—that the company engages in “100% offsetting [of] all carbon emissions from shipping[,]” that it was “the first major online shopping destination to offset 100% of carbon emissions generated by shipping[,]” and that its “goal [is] to run a carbon neutral business[.]”  Dkt. No. 20 at 1.  Plaintiffs alleged that the carbon offset promises were false “due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.”  Id.  Plaintiffs claimed that Etsy’s false promises caused them harm because they paid more for products on the site than they otherwise would have under the mistaken belief that Etsy’s shipments were carbon neutral. Continue Reading California Federal Court Throws Out Carbon Offset Class Action Against Etsy

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.Continue Reading Federal Court Dismisses Chatbot Claim for Lack of Article III Standing Where Plaintiff Could Not Show Concrete Injury

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.Continue Reading Federal Court Partially Dismisses Hacked Hard Drive Claims Where Plaintiffs Could Only Show Data Deletion, Not Theft

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).Continue Reading Fifth Circuit Declines to Wade Into Circuit Split on Relationship Between Standing and Class Certification

This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement.  41 F.4th 1354 (11th Cir. 2022).  Because the law in the Eleventh Circuit at the time held that a

Last week, the Eleventh Circuit reversed in part and remanded an order certifying a class in a case arising from a data breach of Chili’s restaurants, Green-Cooper v. Brinker International, Inc., No. 21-13146, 2023 WL 4446420 (11th Cir. July 11, 2023).  The opinion clarifies the Eleventh Circuit’s view of when data breaches give rise to Article III standing.Continue Reading Eleventh Circuit Holds Having Payment Information Posted to Dark Web Establishes Standing in Data Breach Case, Remands Class Certification Order

Late last year, our colleagues highlighted a wave of class action litigation asserting novel claims under state wiretap laws against website operators that use session replay software and chatbots on consumer websites.  Federal district courts in California have now ruled on the first round of chatbot cases, most brought by a handful of “tester” plaintiffs under the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code §§ 630 et seq., and have nearly uniformly rejected the claims.  These initial favorable rulings should be helpful for defendants facing similar claims.Continue Reading A Closer Look: Courts Reject California Wiretap Claims Based on Website Chat Features