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Several recent cases arising under the federal Food, Drug, and Cosmetic Act (“FDCA” or the “Act”), 21 U.S.C. § 301 et seq., highlight the usefulness of preemption as a defense against putative class actions concerning drugs, cosmetics, dietary supplements, medical devices, and other consumer products subject to the Act. The FDCA provides for exclusive enforcement by the FDA and has no private right of action. Implied preemption also extends to state law claims based on allegations that the defendant violated FDA regulations. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4 (2001) (citing 21 U.S.C. §337(a)) (“The FDCA leaves no doubt that it is the Federal Government rather than private litigants who [is] authorized to file suit for noncompliance with” the FDCA’s substantive provisions). This article addresses recent federal cases supporting FDCA preemption of state law claims that require the fact finder to improperly assume the FDA’s enforcement power, particularly in the class action context. Continue Reading FDCA Preemption: A Powerful Tool for Defending Class Actions

On July 29, 2020, the Sixth Circuit joined the Second and the Ninth Circuits in expansively defining Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043 (6th Cir. July 29, 2020), the Sixth Circuit held that “devices that dial from a stored list of numbers”—i.e. “predictive dialers”—qualify as an ATDS under the TCPA.  The Third, Seventh, and Eleventh Circuits have applied a more stringent definition, requiring that an ATDS have the capacity to generate random or sequential telephone numbers and to dial them.  Now the Circuit Courts are split on this issue 3-3.  The U.S. Supreme Court recently accepted review of the definition of ATDS and will presumably resolve this split in its next terms, likely by the spring of 2021.
Continue Reading The Sixth Circuit Broadly Defines ATDS, Widening The Split Among Circuits Before The Supreme Court Rules Next Year

Recently, the Sixth Circuit in Gary v. Trueblue, Inc., No. 18-2281, 2019 U.S. App. LEXIS 26959 (6th Cir. Sep. 5, 2019), weighed in on the meaning of Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  The TCPA generally prohibits calls and text messages to cell phones using an ATDS without prior express consent and imposes a statutory penalty of $500 per call or text in violation, or up to $1,500 per call/text for a knowing or willful violation.  On a class action basis covering all calls/texts sent over four years, the potential liability can be crushing.
Continue Reading The Sixth Circuit Limits the Meaning of ATDS Under the TCPA

A recent decision by the Eleventh Circuit will make it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (TCPA).  In Salcedo v. Hanna, et al., Case No. 17-14077, 2019 U.S. App. LEXIS 25967 (11th Cir. Aug. 28, 2019), the Eleventh Circuit ruled that a single text message did not cause sufficient harm to sue in federal court.  As a result, “single text message” TCPA cases may be a thing of the past, at least in the federal courts across the three States in the Eleventh Circuit (Florida, Georgia, and Alabama).  However, given conflict with a ruling by the Ninth Circuit, the issue may now be ripe for decision by the U.S. Supreme Court.
Continue Reading One “Chirp, Buzz, Or Blink” Is Not Enough To Sue Under The TCPA

In May, the U.S. Supreme Court issued its opinion in Spokeo v. Robins, providing guidance on the “injury-in-fact” aspect of the constitutional standing requirement for putative class action plaintiffs.  136 S. Ct. 1540 (2016), as revised (May 24, 2016).  Spokeo was quickly hailed by both plaintiff- and defense-side lawyers as a major victory, but in truth provided something for everyone.  It requires, for example, that a plaintiff allege “a concrete injury even in the context of a statutory violation . . .” and not merely a “bare procedural violation, divorced from any concrete harm.”  Id. at 1543, 1549.  Further, a “concrete” injury must “actually exist” and be “real, and not abstract.”  Id. at 1548.  On the other hand, a “concrete” injury is not “necessarily synonymous with ‘tangible.’”  Id. at 1549.  Ways to determine whether “intangible” harm qualifies as “concrete” include: (1) evaluating whether the alleged harm “has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit” and (2) looking to the judgment of Congress which “has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”  Id.
Continue Reading Update on Data Breach and Data Privacy Class Actions Post-Spokeo

In Brazil v. Dole, No. 14-17480 (9th Cir. Sept. 30, 2016), the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part three different orders issued by the U.S. District Court for the Northern District of California.  In doing so, the Ninth Circuit (1) confirmed that in order to state a false advertising claim under the unlawful prong of California’s Unfair Competition law, a plaintiff must allege that he relied on the purportedly misleading statements, (2) clarified what types of evidence were sufficient to create an issue of material fact sufficient to defeat summary judgment based on the reasonable consumer standard, and (3) confirmed that, in order to certify a damages class under Rule 23(b)(3), a plaintiff must present a damages model that provides a method of calculating damages using proof common to the class.
Continue Reading Ninth Circuit Confirms Brazil v. Dole Decertification Due to Faulty Damages Model

Spokeo, Inc. v. Robins has been closely watched because of its potential implications for class actions alleging mere “technical violations” of consumer protection statutes.  Yesterday, the U.S. Supreme Court issued a 6-2 decision confirming that a plaintiff must have suffered a “concrete” injury to have standing under Article III of the U.S. Constitution.  According to the Court, a plaintiff who suffers the injury defined in a consumer protection statute may or may not have suffered an injury sufficiently “concrete” to have standing.  But because the Ninth Circuit Court of Appeals had failed to address the concreteness of Plaintiff’s injury as a separate issue, the Supreme Court remanded the case.
Continue Reading U.S. Supreme Court Remands Spokeo; Ninth Circuit Must Consider Whether “Concrete” Injury Occurred

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

The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, there are relatively few Circuit Court of Appeals decisions regarding the TCPA. In August of 2013, however, both the Third and Seventh Circuits issued TCPA decisions—one involving the revocation of prior express consent and the other involving cy pres awards in TCPA class actions.
Continue Reading Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using automated systems or artificial or pre-recorded voice unless the consumer gives “prior express consent.” The TCPA imposes statutory penalties of $500 per negligent violation, and up to $1,500 per knowing or willful violation. In class actions, the potential liability usually extends back four years prior to the filing of the complaint. The numbers can get very high, very quickly—for example, at least $500,000 for 1000 calls; at least $5 million for 10,000 calls, etc. Though the TCPA does not authorize attorneys’ fees itself, plaintiffs usually recover them in class actions.
Continue Reading New FCC Interpretation Of “Express Consent” To Increase TCPA Class Action Liability