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On July 20, 2015, the Seventh Circuit issued its opinion in Remijas v. Neiman Marcus Group, 794 F. 3d 688 (7th Circ. 2015), which immediately became the low-water mark for Article III standing in data breach cases.  In short, Remijas became the first Circuit decision to expressly and expansively recognize that risk of future injury and time and money spent protecting against identity theft as a result of a data breach were sufficient to confer Article III standing.
Continue Reading Back at it Again (with the Standing Opinions): Seventh Circuit Reiterates Article III Standing in Data Breach Class Actions

Over the last six months, at least four putative class actions have been filed under the Biometric Information Privacy Act (“BIPA”)—an obscure Illinois statute passed about seven years ago to regulate the collection and use of consumers’ biometric information.  In relevant part, the BIPA requires entities in possession of biometric information (i.e., retina scans, fingerprints, voiceprints, etc.) to retain a specific written policy governing data retention and to collect written consent from consumers before collecting biometric information.
Continue Reading Tag, You’re It: Biometric Information Privacy Act Class Action Against Shutterfly Moves Past 12(b)(6)

As a result of the Supreme Court’s decision in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013), data breach class actions were largely considered dead in the water.  The overwhelming majority of courts, relying heavily on Clapper, dismiss data breach actions for the simple reason that until a consumer suffers actual identity theft, she lacks Article III standing to sue.  In other words, without actual identity theft, the risk of future harm—as well as any money spent attempting to protect against potential identity theft—is purely speculative and does not suffice to constitute a legally cognizable injury.
Continue Reading Barbarians at the Gate: Seventh Circuit Finds Article III Standing for Data Breach Class Actions

On June 23, 2015, the Ninth Circuit in Cabral v. Supple LLC, — Fed. Appx. –, 2015 WL 3855142 (9th Cir. June 23, 2015) placed a significant hurdle in the path of false advertising class actions.  Specifically, the Court held that in class actions “based upon alleged misrepresentations in advertising and the like,” in order for common questions to predominate—an essential Rule 23(b) inquiry—“it is critical that the misrepresentation in question be made to all of the class members.”
Continue Reading Ninth Circuit Reiterates that Misrepresentation Must be Made to All Class Members

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA defendants to avoid liability for pre-recorded calls through the common carrier defense.
Continue Reading Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

On December 12, 2014, Judge Sue E. Myerscough issued an epic 238-page order granting in part and denying in part cross summary judgment motions filed in United States of America, et al. v. Dish Network, L.L.C. (“Dish Network”). United States v. Dish Network, L.L.C., No. 09-3073, 2014 WL 7013223 (C.D. Ill. Dec. 12, 2014). Despite finding that Dish was liable for over 50 million phone calls, there was a silver lining for both Dish and future TCPA defendants.
Continue Reading Hold the Phone: Judge Holds Dish Network on the Line for Tens of Millions of Calls, but Leaves Silver Lining for TCPA Defendants

Over the last several months, Judge Richard Posner has authored a triumvirate of opinions reversing the district courts’ approval, over objections, of consumer class action settlements—Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014), Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014), and Pearson v. NBTY, Inc., No. 12-1245, 2014 WL 6466128 (7th Cir. Nov. 19, 2014)—each of which could charitably be described as scathing. Among other things, Judge Posner takes aim at the manner in which a settlement is valued for purposes of determining attorney’s fees (administration costs and cy pres awards are not part of the value to the settlement class), the method of calculating attorney’s fees (a ratio based on actual value to the class, not the maximum potential value), and the manner and content of notice to the class as well as the claims process (simplification is key). While the class action bar awaits the impact of these decisions, there are several key lessons to be learned.
Continue Reading Now That That’s Settled: The Status of Class Action Settlements in the Seventh Circuit after Pella, Radioshack and NBTY

In Rea v. Michaels Stores, No. 14-55008, 2014 U.S. App. LEXIS 2928 (9th Cir. Feb. 18, 2014), the Ninth Circuit reversed the district court’s order remanding a wage-and-hour class complaint to state court, ruling that the defendant employer’s removal of the case to federal court under the Class Action Fairness Act (CAFA) was proper.  The Ninth Circuit held that a defendant’s removal options are not limited to the two 30-day periods specified in the federal removal statutes.
Continue Reading When 30 Days Just Isn’t Enough: The Ninth Circuit Rules that Defendants’ Right to Remove May Not be Limited to 30 Days

In Davis v. HSBC Bank Nevada, N.A., No. 10-56488, 2012 WL 3804370 (9th Cir. Aug. 31, 2012), the Ninth Circuit affirmed the dismissal of claims for (1) false advertising in violation of the California Business and Professions Code § 17500, et seq. (“FAL”); (2) fraudulent concealment; (3) “unlawful” business practices in violations of California Business and Professions Code § 17200, et seq. (“UCL”); and (4) “unfair” and “fraudulent” business practices in violation of the UCL, at the pleading stage.
Continue Reading Unreasonable Reliance: Ninth Circuit Affirms Dismissal of FAL, Fraud and UCL Claims at the Pleading Stage

Last year, the Ninth Circuit curtailed the use of Rule 12(f) motions to strike in a case of first impression called Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970 (9th Cir. 2010). The narrow holding of Whittlestone is that “Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.” Id. at 974-975. Rule 12(f) of the Federal Rules of Civil Procedure states that a district court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (overruled on other grounds in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).
Continue Reading Using a Rule 12(f) Motion to Strike Class Allegations in the Ninth Circuit: The Aftermath of Whittlestone

On July 12, 2011, California’s Second Appellate District Court of Appeal issued a decision in Brown v. Ralphs Grocery Company regarding the enforceability of arbitration agreements in the employment context that limit employees’ rights to assert class and representative actions. This was the first published state court decision in California regarding employment arbitration agreements since the United States Supreme Court’s groundbreaking decision in AT&T Mobility, LLC v. Concepción (“AT&T Mobility“), where the Supreme Court held that California case law invalidating class action waivers in consumer arbitration agreements is preempted by the Federal Arbitration Act (“FAA”).  (For a detailed analysis of the AT&T decision, please visit Sheppard Mullin’s labor and employment blog dated April 27, 2011.)
Continue Reading California Appellate Court Analyzes Employment Arbitration Agreement after Supreme Court’s AT&T Decision