Two years ago, in Johnson v. NPAS Solutions, LLC, the Eleventh Circuit upended decades’ worth of precedent by categorically forbidding incentive payments to class representatives in class action settlements...more
Biometric class actions have proliferated in recent years — and with more states eyeing comprehensive data privacy legislation, companies that use biometric data should plan for the surge to grow. With rare exceptions, these...more
Can a plaintiff represent a class without showing that there’s a feasible way to identify the absent class members? In its recent decision in Cherry v. Dometic Corp., the Eleventh Circuit has become the latest circuit to...more
The Ninth Circuit recently determined that the mere presence of artificial trans fats in popcorn (i.e., the “butter” in butter flavored popcorn) does not create an injury that confers Article III standing.
In McGee v. S-L...more
The 11th Circuit recently addressed the issue of competing or overlapping class actions, which often create problems for both the plaintiffs’ counsel and the defense. In Medical and Chiropractic Clinic, Inc. v. Oppenheim, the...more
We have repeatedly mentioned the long-awaited decision in Molock v. Whole Foods Market Group, Inc. from the District of Columbia Circuit. While we hoped this opinion would finally provide some circuit-level clarity about how...more
The Eleventh Circuit last month issued a significant class action opinion in Cordoba v. DirectTV, LLC, vacating a class certified in a TCPA class action and remanding the case. The issue underlying the court’s decision was...more
Does a state, whose citizens are among the absent class members in a class action settlement, have Article III standing to challenge the supposed unfairness of the settlement? In Chapman v. Tristar Products, Inc., the Sixth...more
10/22/2019
/ Appeals ,
Article III ,
CAFA ,
Class Action ,
Class Members ,
Department of Justice (DOJ) ,
FRCP 24 ,
Injury-in-Fact ,
Lack of Jurisdiction ,
Objection Procedures ,
Parens Patriae ,
Regulatory Authority ,
Settlement ,
Standing ,
State Regulators
One unwanted text message does not confer standing in federal court in the Eleventh Circuit — so holds the court in Salcedo v. Hanna. The case confirms that one text message is qualitatively, and jurisprudentially, different...more
Consent is the most powerful weapon companies have against TCPA liability, and a recent Eleventh Circuit opinion illustrates how. In Gorss Motels, Inc. v. Safemark Systems, L.P., the Eleventh Circuit affirmed summary judgment...more
8/30/2019
/ Appeals ,
Class Action ,
Class Certification ,
Faxes ,
FCC ,
Franchise Agreements ,
FRCP 23(f) ,
Hobbs Act ,
Prior Express Consent ,
Summary Judgment ,
TCPA ,
Unsolicited Faxes
While a war rages on the issue of standing in data breach cases, the need to prove damages is presenting an even greater hurdle for plaintiffs, as we have noted previously. One clear illustration of this trend is Attias v....more
8/27/2019
/ Actual Damages ,
Appeals ,
Article III ,
Class Action ,
Class Certification ,
Corporate Counsel ,
Data Breach ,
Dismissals ,
Economic Loss Doctrine ,
Jurisdiction ,
Remand ,
Standing
Bucking a recent trend and departing from both the Second Circuit’s Katz decision and the Third Circuit’s Kamal decision, the Eleventh Circuit found that a plaintiff had standing to settle a FACTA claim on behalf of a class....more
We wrote recently about how the certiorari petition in Zappos.com, Inc. v. Stevens was a possible vehicle to put the question of standing in data breach cases back before the Supreme Court. Alas, the Court denied the...more
Yesterday, the Supreme Court sent Frank v. Gaos back to the Ninth Circuit to address the issue of standing under Spokeo.
Frank involved allegations of privacy violations. Plaintiffs brought class action claims against...more
Almost one year ago, we wrote about the impact of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) on Fair and Accurate Credit Transaction Act (FACTA) class actions and offered practical pointers for defendants confronting...more
3/18/2019
/ Article III ,
Breach of Confidence ,
Class Action ,
FACTA ,
Injury-in-Fact ,
Point of Sale Terminals ,
Retailers ,
Spokeo v Robins ,
Standing ,
Statutory Violations ,
Subject Matter Jurisdiction
The December 2018 revisions to Rule 23 are relatively minor, and early cases applying the amended rule confirm that no major changes have occurred. The Southern District of Iowa summed up the theme in Swinton v. SquareTrade,...more
In a much-anticipated ruling, the Illinois Supreme Court recently held that allegations of actual injury are not required to seek damages under Illinois’ Biometric Information Privacy Act (BIPA or the Act). The case is...more
2/6/2019
/ Actual Injuries ,
Amusement Parks ,
Appeals ,
Article III ,
Attorney's Fees ,
Biometric Information ,
Biometric Information Privacy Act ,
Class Action ,
Data Collection ,
Data Privacy ,
Fingerprints ,
IL Supreme Court ,
Injunctive Relief ,
Injury-in-Fact ,
Liquidated Damages ,
Personally Identifiable Information ,
Private Right of Action ,
Reversal ,
Standing ,
Written Consent
Courts are still going both ways on applying Bristol-Myers Squibb to class actions. Two recent decisions highlight this split.
The first—and we’ll always start with the good news—comes out of the District of Massachusetts...more
Earlier this year, the Supreme Court in China Agritech Inc. v. Resh conclusively established that equitable tolling of the statute of limitations for putative class members – known as American Pipe tolling – applies only to...more
The Ninth Circuit’s decision not to grant en banc rehearing in Sali v. Corona Regional Medical Center should all but guarantee that the issue of expert testimony at the class certification stage is heading to the Supreme...more
We have been closely watching how courts have applied the Supreme Court’s Bristol-Myers Squibb decision in the class action context, and the early results are mixed. But the Northern District of Illinois made a big step in...more
The Eleventh Circuit has held that, absent express language to the contrary in the arbitration agreement itself, whether class arbitration is permitted under an arbitration agreement selecting American Arbitration Association...more
Consumer data breach class actions, for all of their popularity on dockets and especially in headlines, can make difficult cases for plaintiffs. Issues like standing and damages often keep these cases from getting off the...more
8/23/2018
/ Article III ,
Causation ,
Class Action ,
Class Certification ,
Cybersecurity ,
Data Breach ,
Data Privacy ,
Data Protection ,
Data Security ,
Hackers ,
Identity Theft ,
Personally Identifiable Information ,
Popular ,
Predominance Requirement ,
Standing
To be liable for a junk fax Telephone Consumer Protection Act (TCPA) violation, does a company have to actually send a fax? The plain language of the TCPA says yes: “It shall be unlawful for any person… to use any telephone...more
Following the Supreme Court’s landmark personal-jurisdiction decision in Bristol-Myers Squibb, federal district courts have continued to disagree about whether to apply the court’s holding to cases involving nationwide class...more