Actual Injuries

News & Analysis as of

For ERISA Section 502(c) Penalties — Must Plaintiff Prove “Actual Injury”? A Recent U.S. Supreme Court Decision Creates the...

These Section 502(c) penalty claims seem to be added to most every ERISA lawsuit... Does a claimant have to prove “actual injury” to win ERISA Section 502(c) penalty claims? MAYBE. Here’s why...more

FTC Delays Ruling in LabMD Appeal

The Federal Trade Commission has decided to put off until late July a decision about whether to overturn a ruling by the agency’s chief administrative law judge in the closely watched data security action against LabMD, the...more

Supreme Court Decides Wittman v. Personhuballah

On May 23, 2016, the U.S. Supreme Court decided Wittman v. Personhuballah, No. 14-1504, holding that Members of Congress from Virginia did not have standing to challenge a district court’s order finding a redistricting plan...more

Reading The Tea Leaves – How Will The U.S. Supreme Court Decide Spokeo?

While the U.S. Supreme Court has issued decisions on two of its major class action cases this term, Campbell-Ewald Co. v. Gomez and Tyson Foods v. Bouaphekeo (see January 20, 2016 blog and May 5, 2016 blog), one other...more

Credit Card Theft Plaintiffs Discover Warm Home After 7th Circuit Rulings

One of the great scourges for retail companies in the digital age has been the ever-present threat of massive data breaches by hackers attempting to steal millions of consumers ’debit and credit card information. In...more

LabMD’s Waiting Game: Lingering Questions over FTC’s Authority in Data Security Matters

A contentious legal battle over data security between the Federal Trade Commission and LabMD, a small medical testing lab, is chronicled in the latest edition of Bloomberg Businessweek. Dune Lawrence’s report raises...more

Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align....more

The Supreme Court's Vindication of The In re Nexium Dissent

We have commented previously on several aspects of the Supreme Court’s recent decision in Tyson Foods. One additional important aspect that deserves special attention in the First Circuit is the issue of how to cull...more

Early Settlement of the Home Depot Consumer Data Breach Claims – The Start of a Trend?

Last week, a federal court in Atlanta issued an order preliminarily approving a proposed settlement – valued up to $19.5 million – of the consumer claims arising from the 2014 theft of payment card data from Home Depot. The...more

Court Stays Away from Trans Fat in General Mills Case

A recent decision from the Central District of California demonstrates the challenges serial plaintiffs may have with pursuing similar class actions and showcases the primary jurisdiction doctrine. On December 29, 2015, in...more

Employment Law - January 2016

Does The ADEA Permit Disparate Impact Suits by Applicants? Eleventh Circuit Says Yes - Why it matters - The Eleventh Circuit Court of Appeals created a circuit split with a decision that the Age Discrimination in...more

No Harm, No Foul? Defining FTC’s Authority Over Data Security

Given the frequency of high-profile breaches, it’s reasonable for companies and consumers to be not only fearful but also realistic (or some would say fatalistic) about data security. It’s not a question of if a security...more

What’s Hot in Class Actions (Part 3/3): Potential Rule 23 Amendments Narrowed, Congress Tackles No-Injury Class

Class actions consume considerable company resources and can pose significant risk of exposure in the $ millions or $ billions. Therefore, it is critical for companies to prepare themselves – to know the trends in class...more

Re-Thinking “Substantial Injury”: The FTC’s Potential New Need for Victims

Last month, the Federal Trade Commission’s Chief Administrative Law Judge dismissed the Commission’s long-running data security case against LabMD because it failed to prove that there was an actual or reasonably imminent...more

What’s Hot in Class Actions (Part 2/3): SCOTUS View on Stats to Support Class Cert, No-Injury Class Colored by FLSA?

Class actions consume considerable company resources and can pose significant risk of exposure in the $ millions or $ billions. Therefore, it is critical for companies to prepare themselves – to know the trends in class...more

Privacy & Cybersecurity Update - November 2015

Consumer Electronics Association Releases Best Practices For Privacy and Security of Personal Wellness Data - In late October 2015, the Consumer Electronics Association released guiding principles governing the...more

FTC Loses in LabMD Data Security Case: ALJ Sets High Bar for Consumer Harm

On November 13, 2015, an administrative law judge (“ALJ”) ruled against the Federal Trade Commission (“FTC”) in its high-profile data security case against LabMD. The ALJ ruled that the FTC had failed to show that LabMD’s...more

Blog: FTC Enforcement Powers Limited in LabMD Data Security Case

Federal Trade Commission ("FTC") charges against the cancer-screening laboratory LabMD, stemming from two data breaches involving sensitive personal information of thousands of consumers were dismissed in a decision made...more

FTC Administrative Law Judge To FTC: "Not So Fast On Data Security Enforcement!"

After repeatedly losing various challenges to the Federal Trade Commission's ("FTC's") authority to investigate and sanction it for alleged data security violations, LabMD Inc. ("LabMD") has finally come out on top, at least...more

FTC Fails to Prove Case Against LabMD

Last Friday, Chief Administrative Law Judge D. Michael Chappell ruled that the FTC had failed to prove its case against LabMD and dismissed the FTC's Complaint. LabMD is one of only two companies (the other being Wyndham) to...more

ALJ Rules Against FTC in LabMD Data Security Action: Sets High Bar for Proving Consumer Harm

Last June we wrote about the FTC’s enforcement action against LabMD, a medical testing laboratory, which was forced to wind down its business because of the costs associated with challenging the FTC since 2013. Using its...more

7th Circuit: Consumers are Not Injured by the Undisclosed Sale of Personally-Identifiable Information

On November 18, 2015, the U.S. Court of Appeals for the 7th Circuit held that consumers who authorized defendants to share their personally-identifiable information (PII) with third parties were not injured when defendants...more

Punitive Damages – How Much Increased Risk Is Enough?

Back in 2009 – when the blog was still a Bexis/Herrmann operation – we wrote a catch-all punitive damages post entitled (oddly enough) “On Punitive Damages.” That post identified and briefly discussed a variety of punitive...more

Mark Your Calendar

The day is almost upon us. Halloween, you say? No, oral arguments in the Spokeo case. Way more exciting. Spokeo, Inc. v. Robins is important because it goes to the heart of when a claim for non-compliance can be brought...more

Breaking News - Ohio Sets Class Actions Right.

One of the most basic prerequisites to having court rules is that the rules aren’t supposed to change substantive law. With class action rules, like Fed. R. Civ. P. 23 and its state-law analogs, courts seem to have a hard...more

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