Class Action Procedure

The United States District Court for the Southern District of Iowa has dismissed on sovereign immunity grounds a putative class action against the University of Iowa Hospitals and Clinics (“UIHC”) for unjust enrichment and violations of the Electronic Communications Privacy Act and Computer Fraud and Abuse Act.  See Yeisley v. Univ. of Iowa Hosps. & Clinics, No. 3:23-cv-00025 (S.D. Iowa Feb. 16, 2024) (unpublished). 

The plaintiff, a patient of UIHC, had alleged that UIHC used a pixel on its website to share her personally identifiable information with third parties for marketing purposes and without her consent.  The Court did not reach the merits of the case and instead granted UIHC’s motion to dismiss on the basis that sovereign immunity barred each of the plaintiff’s claims.Continue Reading Federal Court Dismisses Lawsuit Over Use of Pixel Technology on University Hospital Websites

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

Cy pres (or “next best”) provisions are a relatively common provision of class action settlements.  The cy pres doctrine permits funds from a cash settlement in a class action to be sent to a third party, usually a charitable organization with a mission related to the claims in the lawsuit, rather than to class members.  Cy pres provisions are typically used for residual funds in a settlement pool or, less commonly, when class members are hard to identify.  But cy pres provisions have come under increasing scrutiny, as evidenced by an Ohio federal court’s recent rejection of a class action settlement based solely on its cy pres provision.  Hawes v. Macy’s Inc., No. 1:17-CV-754, 2023 WL 8811499 (S.D. Ohio Dec. 20, 2023). Continue Reading Federal Court Rejects Class Action Settlement Over Cy Pres Provision

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

On December 5, 2023, the Ninth Circuit vacated a decision by a district court approving a $5.2 million class action settlement between plaintiff Lisa Kim and Tinder, Inc., a mobile dating app.  The case alleged that Tinder’s pricing scheme—which charges users over the age of 29 more for its premium packages than users under the age of 29—is discriminatory and violates California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq, and California’s unfair competition law, Cal. Bus. & Prof. Code §§ 17200 et seq.  This was the second time the Ninth Circuit reversed the district court’s approval of a class settlement in this case. Continue Reading Ninth Circuit Rejects Class Action Settlement in Tinder Case for the Second Time

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

On November 3, the Second Circuit reversed a lower court decision denying a motion to compel arbitration in a putative class action against Klarna.  See Edmundson v. Klarna, Inc., 85 F.4th 695 (2d Cir. 2023).  The decision offers guidance (and support) for companies looking to enforce similar “click-wrap” agreements with mandatory arbitration provisions.Continue Reading A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement

The Sixth Circuit vacated an order certifying five statewide classes alleging a common brake defect in Ford Motor Company’s F-150 pickup trucks, remanding the case to the district court “for more searching consideration” of whether commonality under Federal Rule of Civil Procedure 23(a)(2) was satisfied.

In Weidman v. Ford Motor Co., 2022 WL 1071289 (E.D. Mich. Apr. 8, 2022), plaintiffs had filed a putative class action against Ford over an alleged defective brake cylinder in their F-150 pickup trucks.  The district court certified five statewide classes on three issues under Rule 23(c)(4): (1) whether the trucks’ brake systems were defective; (2) whether Ford possessed pre-sale knowledge of the defect; and (3) whether concealed information about the defect would be material to a reasonable buyer.

On a Rule 23(f) petition for interlocutory review, the Sixth Circuit vacated the class certification order, finding that the district court’s “cursory treatment of commonality, one of the four necessary class action ingredients, failed to meet Rule 23’s stringent requirements.”  In Re Ford Motor Co., 2023 WL 7877971, at *1 (6th Cir. Nov. 16, 2023).Continue Reading Sixth Circuit Pumps the Brakes on Class Certification Alleging Common Defects in Ford F-150 Pickup Trucks

A California Superior Court recently certified a putative class action of California residents “who have used mobile devices running the Android operating system to access the internet through cellular data plans provided by mobile carriers.” See Order Concerning: (1) The Parties’ Expert Exclusion Motions; and (2) Plaintiffs’ Class Certification Motion, Csupo, et al. v. Alphabet