Litigation

A Pennsylvania court recently dismissed a wiretapping complaint filed against a trio of defendants for lack of Article III standing, lack of personal jurisdiction, and failure to state a claim in Ingrao v. Addshoppers, Inc., 2024 WL 4892514 (E.D. Pa. Nov. 25, 2024).

The two plaintiffs in this case…

Continue Reading Pennsylvania Court Dismisses A Trio of Defendants in Website Wiretapping Suit Challenging Email Marketing Program

Dozens of lawsuits have started challenging businesses’ use of website tools to collect IP addresses under the “pen register” and “trap and trace device” provision of the California Invasion of Privacy Act (“CIPA”).  As we reported last month, a California court dismissed one of these lawsuits because of a…

Continue Reading Another California Court Holds CIPA’s Pen Register Provision Does Not Prohibit the Collection of IP Addresses

Websites cannot load without the transmission of an IP address, which tells websites where to deliver the webpages displayed on a user’s browser.  Yet a number of lawsuits have started challenging this routine transmission of IP addresses under a lesser-known provision of the California Invasion of Privacy Act (“CIPA”) that…

Continue Reading Court Holds CIPA’s Pen Register Provision Does Not Impose Liability for “What Makes the Internet Possible.”

Despite a lead plaintiff with unique injuries, the Northern District of Indiana recently certified a class seeking economic damages under Indiana’s consumer protection statute in a case challenging contaminated hand sanitizer manufactured by 4e Brands North America, LLC.  Callantine v. 4e Brands North America, LLC, 2024 WL 4903361 (N.D. Ind. Nov. 27, 2024). 

In June 2020, Defendant 4e voluntarily recalled all of its hand sanitizer lots due to the presence of methanol.  The plaintiff filed a class action lawsuit two months later, alleging that she had suffered both economic and personal injuries, and that she was entitled to statutory damages.  The individual class members’ damages, however, would be “largely limited to statutory damages.” Continue Reading Unique Injuries No Bar to Class Certification Pursuing Economic Damages

            An important issue in class action practice is how courts are to evaluate the reliability of expert evidence that purports to support class certification.  On November 22, the Sixth Circuit joined a majority of circuits in holding that a full Daubert analysis is required at the class certification stage where the expert evidence is material to class certification.

            In In re Nissan North Am., Inc. Litig., — F.4th —, 2024 WL 4864339 (6th Cir. Nov. 22, 2024), Nissan owners brought state law claims alleging various defects with automatic braking systems in Nissan vehicles.  The district court certified 10 statewide classes under Fed. R. Civ. P. 23(b)(3). Id. at *1. On interlocutory appeal, the Sixth Circuit reviewed three aspects of the district court’s certification decision:  (1) whether the case involved common questions of law or fact under Rule 23(a)(1); (2) whether common questions predominated over individual ones under Rule 23(b)(3); and (3) whether the court could rely on expert evidence without ensuring that it satisfied the Daubert standard. Id. at *3. While it found error in the district court’s determinations on each of these issues, this post focuses on the expert-related question.Continue Reading No Evading Daubert at Class Certification Stage, Sixth Circuit Rules

In a putative consumer data breach class action, a court in the Northern District of California recently denied a cloud solution company’s motion to dismiss the plaintiffs’ negligence claim finding that the plaintiffs plausibly alleged that the company owed consumers a duty of care. See In re Accellion, Inc. Data Breach Litig., 2024 WL 4592367 (N.D. Cal. Oct. 28, 2024).Continue Reading California Federal Court Finds Plaintiffs Plausibly Alleged That Cloud Solution Company Owed Consumers Duty of Care

On Wednesday, November 13, the Supreme Court heard oral argument in the case NVIDIA Corp. v. Ohman J, a class action suit filed in the Northern District of California alleging securities fraud under § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.  Early signals from the Justices’ questions have led observers to believe that the Court may affirm the Ninth Circuit’s decision to reverse and remand the decision granting Nvidia’s motion to dismiss for failure to state a claim. Continue Reading Supreme Court Expresses Skepticism Regarding Nvidia’s Motion to Dismiss Securities Class Action

In a significant decision for businesses who are attempting to revise their consumer arbitration clauses to address the prospect of mass arbitration, the Ninth Circuit affirmed the district court’s denial of Live Nation and Ticketmaster’s motion to compel arbitration, based largely on the content of the mass arbitration provisions of their arbitration agreement.  Heckman v. Live Nation Ent., Inc., – F.4th –, 2024 WL 4586971 (9th Cir. Oct. 28, 2024).  The court concluded that the “dense, convoluted and internally contradictory” arbitration rules cross referenced in Ticketmaster’s arbitration provision, along with other elements of the provision, rendered it unenforceable.  The court also held, on an alternate basis, that the Federal Arbitration Act (FAA) did not even apply to the mass arbitration procedure at issue because it is “not arbitration as envisioned by the FAA.”Continue Reading A Closer Look: Ninth Circuit Holds Arbitration Agreement with Certain Mass Arbitration Protocols Unenforceable

In certain circumstances and states, class action waivers may mitigate the exposure risks inherent in class action lawsuits. A decision from the Eastern District of New York illustrates some of the procedural challenges defendants may face in seeking to enforce a waiver at the outset of a case in some circumstances. See Berger v. JetBlue Airways Corp., 2024 WL 4107243, at *4 (E.D.N.Y. Sept. 6, 2024).Continue Reading New York Federal Court Declines to Find Class Claims Waived at Pleadings Stage