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Fine print prevails: Second Circuit affirms dismissal of deceptive business act claims against Stanley Black & Decker

Takeaway:  Is a label clearly false or only ambiguously false?  Where a label is ambiguous – and therefore subject to an interpretation that would render it deceptive – the ambiguity can be clarified by fine print.  The fine...more

Fifth Circuit: civil RICO class action against Southwest Airlines and Boeing cannot stand for lack of Article III injury-in-fact

Takeaway: Over two years ago, the Eastern District of Texas denied a motion to dismiss a putative civil RICO class action alleging an “overcharge-by-fraud” theory, where the class representatives appeared to have suffered no...more

Data breach class actions: SDNY finds standing based on sketchy injury-in-fact allegations

Takeaway: Ever since the U.S. Supreme Court ruled in Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013), that plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on . . . hypothetical...more

Data breach class actions: Southern District of New York dismisses action against health care providers for lack of standing

Takeaway: In a prior article, we reported on the Second Circuit’s decision in McMorris v. Carlos Lopez & Associates, LLC, 995 F.3d 295 (2d Cir. 2021), in which the court, ruling on an issue of first impression, set out a...more

BIPA class actions – liability of third-party vendors

Takeaway: We have written a number of articles about the explosion of class action litigation under Illinois’s Biometric Information Privacy Act (BIPA). See BIPA – an ideal “no injury” class action (Feb. 9, 2022) and BIPA...more

Internet contracts – beyond clickwrap and browsewrap

Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An internet consumer must, at a minimum, be...more

Ninth Circuit: proof of injury is a merits issue that can doom class treatment

Takeaway: When a district court certifies a damages class action, it often cites the long line of cases holding that, because damages for each class member can be determined after a class action trial on liability,...more

Data interception class actions – S.D. Fla. dismisses claim that use of session replay software violates Florida Security of...

Takeaway: As we reported in a recent article – New Class Action Trend: Website Session Replay Tools Alleged to Violate All-Party Consent Recording Requirements (April 5, 2021) – creative class action lawyers have filed a...more

Data breach class actions: M.D. Fla. threads the Rule 23 needle in certifying the first consumer payment card class action

Takeaway: Judge Timothy Corrigan of the Middle District of Florida recently found a way to certify a class action where consumers alleged the theft of payment card data, acknowledging he “may be the first to certify a Rule...more

Internet terms of use: Ninth Circuit enforces arbitration agreement accessible through browsewrap hyperlink

Takeaway: Technology advances. Business processes evolve. Internet transactions become increasingly ubiquitous. Contract formation, however, remains an old-fashioned concept. An Internet consumer must, at a minimum, be...more

Fraud class actions: Ninth Circuit vacates $24 million class judgment on standing and predominance grounds

Takeaway: Class actions present significant risk, because a certified class exposes a class defendant to class-wide liability. Most defendants agree to settle rather than face the risk of a class verdict. But sometimes a...more

Ninth Circuit: Lost interest of under $4 sufficient to confer standing in consumer class action

Takeaway: When a company discovers it has been imposing improper charges, it might proactively seek to remedy the situation by refunding the charges. To avoid litigation, however, the company must consider including...more

Data breach class actions: Illinois federal court dismisses negligence claims for lack of common law duty and based on the...

Takeaway: In a data breach class action, the typical panoply of claims asserted include tort claims (such as negligence and negligence per se), contractual claims (such as claims for breach of express and implied contracts),...more

Second Circuit endorses class arbitration

Takeaway: The concept of class arbitration has recently faced stiff headwinds. In Lamps Plus, Inc. v. Varella, 139 S. Ct. 1407 (2019), the Supreme Court ruled that a party cannot be required to participate in a class...more

Data breach class actions – Eighth Circuit affirms merits dismissal in the SuperValu data breach litigation

Takeaway: In the wake of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), defendants in data breach class actions regularly move to dismiss on standing grounds, arguing the complaint’s allegations do not plausibly allege an...more

Is standing overrated? Data breach defendants who lose standing battles end up winning dismissal

Takeaway: In the wake of Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), defendants in data breach class actions regularly move to dismiss on standing grounds, arguing the complaint’s allegations do not plausibly allege an...more

Reading between the lines: the Seventh Circuit’s recent class arbitrability ruling suggests a paradigm for squaring delegation...

Takeaway: In the wake of the U.S. Supreme Court’s continued vigorous enforcement of class action waivers, more and more corporate parties can be expected to include broad class action waivers in their contracts with consumers...more

First Circuit addresses an issue that continues to vex (and split) the circuits: should a class be certified that includes...

Takeaway: The issue of how to treat uninjured class members continues to vex the federal courts. This issue presents both substantive and procedural complexities. Substantively, a class must be defined in objective terms, so...more

Cutting a class defendant some slack: the S.D.N.Y. rejects a “least sophisticated consumer” test in dismissing “slack-fill” class...

Takeaway: There has been a proliferation of “slack-fill” class action litigation. These cases are premised on the notion that a large product container deceives a reasonable consumer, under the theory a reasonable consumer...more

A Ninth Circuit Blueprint for a RICO Class Action

Takeaway: Civil RICO claims usually present complex issues. As civil causes of action predicated on violations of criminal law, a RICO plaintiff must prove (1) conduct (2) of an enterprise (3) through a pattern (4) of...more

Federal Court Rules that Terms & Conditions can Provide Express Consent to Receiving Text Messages Under Telephone Consumer...

The issue of consent is a critical issue in cases alleging violations of the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits making any call using any “automatic telephone dialing system” to “any...more

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