Litigation

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

An Illinois federal district court recently dismissed for lack of personal jurisdiction a publicity privacy suit against Geneanet, which the complaint alleges is a French subsidiary of Ancestry.com that owns and operates an interactive genealogy website. See Shebesh v. Geneanet, S.A., No. 23-cv-4195 (N.D. Ill. May 3, 2024). Plaintiff Ethan Shebesh sued on behalf of himself and a putative class under the Illinois Right of Publicity Act, which prevents the use of an individual’s identity for a commercial purpose without the individual’s consent. 765 ILCS 1075/30(a). Shebesh asserted that Geneanet unlawfully used his and the putative class members’ names and other identifying information to advertise and sell premium memberships. Concluding that the plaintiff failed to show that Geneanet intentionally directed its conduct at Illinois, the court granted Geneanet’s motion to dismiss.Continue Reading Illinois Federal Court Dismisses Publicity Privacy Suit Against French Genealogy Site for Lack of Personal Jurisdiction

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

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.

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

Last week, a divided Second Circuit panel affirmed a district court ruling denying a motion to compel arbitration of a putative class action seeking classwide equitable remedies under ERISA for alleged mismanagement of an employee stock ownership plan.  The Second Circuit found the defined contribution plan’s mandatory arbitration clause unenforceable because it limited plaintiff’s ability to assert a claim that would result in any relief other than individual relief, and specifically prevented him from pursuing the plan-wide remedy authorized by ERISA Section 502(a)(2).  The Court’s decision extends the “effective vindication exception” and raises questions about the extent to which plans can force individual arbitration of ERISA claims that apply to an entire plan.  

In Cedeno v. Sasson, 2024 WL 1895053 (2d Cir. May 1, 2024), the plaintiff asserted claims under ERISA Sections 502(a)(2) and 409(a), alleging that defendants breached fiduciary duties by purchasing stock shares for purportedly more than fair market value, saddling the Plan with tens of millions of dollars of debt and decreasing its value. Continue Reading Second Circuit Blocks Use of Arbitration Clause to Prevent Class Action ERISA Claims

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

A Northern District of California court excluded two groups from certified classes alleging privacy violations against Google, finding that individuals who did not set their own privacy settings did not satisfy the predominance requirement of Rule 23(b)(3).

In Rodriguez, et al., v. Google LLC, 2024 WL 1486139 (N.D. Cal. Apr. 5, 2024), plaintiffs had filed a putative class action against Google alleging that their online activities were transmitted to Google even after they turned off certain internet tracking settings, constituting alleged intrusion upon seclusion, invasion of privacy, and violation of the Comprehensive Computer Data Access and Fraud Act (CDAFA). The court had already certified two classes, but during the class notice process a dispute arose over whether two groups of people who had not set their own tracking settings were part of the class definitions: 1) users of accounts created by businesses or organizations for their employees or members; and 2) users of accounts created for children under thirteen by their parents.Continue Reading In Internet Privacy Case, Predominance Rejected for Persons Who Did Not Choose Their Own Privacy Settings

Earlier this month, the Judicial Conference’s Advisory Committee on Civil Rules unanimously approved a proposed new rule to the Federal Rules of Civil Procedure to address case management of multidistrict litigation (“MDL”).  The rule is the first addition to the Federal Rules focused on MDLs, and it reflects an attempt to suggest a nationwide approach to MDL case management that tracks approaches to case management that MDL judges have often followed in practice while leaving MDL judges discretion to depart from the suggested procedures depending on the needs of a particular case.Continue Reading New Federal Rule of Civil Procedure for MDLs Approved by Advisory Committee

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