The Northern District of California denied class certification in a data breach suit against Zoosk, an online dating service, concluding that the lead plaintiff had waived any right to represent a class by agreeing to a class-action waiver.  See Order Denying Class Certification, Flores-Mendez v. Zoosk, Inc., No. 3:20-04929-WHA (N.D. Cal. July 27, 2022).

Continue Reading Class Certification Denied in Data Breach Class Action Based on Class-Action Waiver in Terms of Service

On July 21, the federal district court denied remand of a proposed class action against Build-A-Bear Workshop, Inc., rejecting the plaintiff’s attempt to remand based merely on Build-A-Bear raising lack of standing as an affirmative defense in its answer.  See Order Denying Motion to Remand, Ruby v. Build-A-Bear Workshop, Inc., No. 4:21-cv-01152-JAR (E.D. Mo. July 21, 2022).

Continue Reading Court Denies Motion to Remand Build-A-Bear TCPA Suit When Standing Raised as an Affirmative Defense

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

After several twist and turns, on July 7th Intel Corp. succeeded in achieving final dismissal of class claims alleging that Intel knew about purported security vulnerabilities in its microprocessors and failed to disclose or mitigate those vulnerabilities.  The case, In Re Intel Corp. CPU Marketing, Sales Practices and Products Liability Litigation, 3:18-md-02828, had a long history—a narrowed set of class claims had survived three prior rounds of motions to dismiss.  Had the claims been allowed to go forward a fourth time, businesses may have faced additional liability concerns for attempting to address cyber vulnerabilities in their products before those exploits became public and susceptible to exploitation by hackers.

Continue Reading Court dismisses class claims related to cyber vulnerability embargo

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

The Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn from limited evidence. 

Continue Reading Third Circuit Refuses to Accept Inferences to Support Findings of Numerosity and Commonality

Kellogg’s defeated yet another putative class action filed by prolific litigant Spencer Sheehan alleging that one of its Pop-Tarts products misleads consumers.  See Reinitz v. Kellogg Sales Co., 2022 WL 1813891 (C.D. Ill. June 2, 2022). 

Asserting state law consumer fraud theories, plaintiff argued that Kellogg’s Frosted Chocolate Fudge Pop-Tarts mislead consumers because they do not contain any fudge whatsoever.  According to plaintiff, true fudge contains butter and milk (i.e. “milkfat”), but Kellogg’s instead uses cheaper and lower quality “vegetable oils and whey” substitutes.  In support of these allegations, plaintiff pointed to a book by Molly Mills, a woman she described as “one of the today’s leading authorities on fudge.”  But plaintiff’s reliance on Mills’s book ultimately proved fatal to her claims.



Continue Reading Fudge Without Milkfat Isn’t “Fudged”

In a typical situation, defendants argue that plaintiffs lack standing and plaintiffs insist otherwise.  But, sometimes, the lack of standing can work in plaintiffs’ favor.  In Benton v. CVS Pharmacy, Inc., 2022 WL 1750462 (N.D. Cal. May 31, 2022), plaintiffs took the unusual step of arguing that they lacked Article III standing to bring their claims in federal court in order to have their case remanded back to state court.

Continue Reading To Defeat Dismissal, Plaintiffs Win By Losing Standing

This past week, co-defendants in a class action related to the theft of cryptocurrency engaged in their own lawsuit over alleged security failures.  IRA Financial Trust, a retirement account provider offering crypto-assets, sued class action co-defendant Gemini Trust Company, LLC, a crypto-asset exchange owned by the Winklevoss twins, following a breach of IRA customer accounts.  IRA claims that Gemini failed to secure a “master key” to IRA’s accounts, and that hackers were able to exploit this alleged security flaw to steal tens of millions of dollars of cryptocurrency.  This lawsuit demonstrates the growing trend of cryptocurrency thefts resulting from cyber breaches, and ensuing litigation activity.

Continue Reading Litigation Between FinTech Companies Follows Class Action Over Cryptocurrency Theft

            The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements.  The cert denial serves as a reminder that companies introducing arbitration agreements should take care to follow all contractual change-of-term requirements and create a record of affirmative customer assent whenever possible.

Continue Reading A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision