Last week the Ninth Circuit reopened a key avenue in consumer false advertising class actions – injunctive relief. A growing number of trial courts had dismissed those claims, reasoning that plaintiffs who know of the alleged fraud aren’t at risk of being fooled again. No more. In Davidson v. Kimberly-Clark Corporation, the Ninth Circuit held that a plaintiff who alleges that so-called “flushable wipes” are not actually flushable has standing to sue the seller of these ... Keep Reading »
Food for Thought: Liability-Only Class Certification Denied for Claims That “No Sugar Added” Juice Labels Misled Consumers Into Thinking the Juice Had Fewer Calories
Plaintiff’s putative class action alleged that defendant Mott’s violated FDA regulations and California’s Sherman Law and Unfair Competition Law when it labeled and sold its 100 percent apple juice with the label “No Sugar Added,” which plaintiff claimed misled consumers into thinking the juice had fewer calories than its competitors. For some reason, Plaintiff sought issue-specific class certification on liability only pursuant to Rule 23(c)(4). The district court ... Keep Reading »
The Continuing Saga of Standing in Data Breach Class Actions: The 8th Circuit Weighs In
We previously reported on the developing circuit split over Article III standing in data breach class action cases. In August, the D.C. Circuit Court joined the Sixth, Seventh, and Ninth Circuits in finding that the injury-in-fact requirement for Article III standing can be satisfied by fear of identity theft following a data breach. Now, the Eighth Circuit has weighed in with two new decisions that evidence a narrower, more nuanced approach to the standing issue. In ... Keep Reading »
Supreme Court Asked to Resolve Circuit Split Over Applicability of American Pipe Tolling to Successive Class Actions
We previously blogged on whether the Supreme Court’s ruling in American Pipe applies to toll the statute of limitations for successive putative class actions. In Resh v. China Agritech, Inc., the Ninth Circuit held that American Pipe tolled the limitations period for putative class actions by absent class members — thus theoretically permitting endless relitigation of certification denials. As we predicted, a defendant in Resh has filed a petition for writ of certiorari ... Keep Reading »
Ninth Circuit Tolls Rule 23(f) Deadline, Revives Aphrodisiac Class Action
Within 10 days after the district court decertified a Rule 23(b)(3) aphrodisiac dietary supplement class for failure to show a class wide method for calculating damages, plaintiff orally advised the court of his intention to seek reconsideration. The district court then set a 10-day deadline for filing a motion for reconsideration — in other words, 20 days after the decertification order. Plaintiff complied with the court’s schedule. The district court denied the motion ... Keep Reading »
Circuit Court Finds Putative Class Affidavits, Combined With Other Records, May Satisfy Ascertainability Requirement
Defendants BMW and Creditsmarts were parties to a marketing agreement through which BMW offered its direct automotive “up2drive” loans to borrowers at participating independent car dealers through Creditsmarts’ internet-based business-to-business lending platform. Creditsmarts used a third party, Westfax, to fax over 20,000 advertisements to independent car dealers during a 30-day period. Plaintiff City Select Auto Sales received one of these faxes and brought a putative ... Keep Reading »
Still Standing: Ninth Circuit Again Finds Standing in Spokeo Remand
The Ninth Circuit recently issued its latest opinion in Spokeo, Inc. v. Robins, the closely-watched putative class action dating back to 2010. The plaintiff initiated the lawsuit against Spokeo, which aggregates publicly available data about individuals on its website, alleging the company published inaccurate information about him, including his age, wealth, marital status, educational history, and profession. He claimed that this conduct violated the Fair Credit ... Keep Reading »
Kansas Judge Rejects Discovery From Putative Class Members
A magistrate judge in Kansas denied the defendant’s request to conduct discovery of putative class members via a voluntary questionnaire. Plaintiff Hapka filed a class action against home health care provider CareCentrix stemming from a 2016 data breach of employees’ personal information, including wage and tax statements. Plaintiff alleged a fraudulent tax return was filed in her name following the cyberattack and that she continued to be at a heightened risk for tax ... Keep Reading »
Individualized Inquiries and Difficulties Identifying Class Members Doom Title Insurance Reissue Rate Class Action
The District Court of Idaho recently decertified a title insurance reissue rate class action, finding the initial justifications for class certification have “not withstood the test of time.” Under the Idaho Rate Manual, customers are entitled to a 50 percent discount when a title policy is issued within two years of a previous policy on the same property by the same owner. Seven years ago, the court granted class certification for a class of Idaho residential customers ... Keep Reading »
Objectively Non-Flushable? The Northern District of California Certifies Consumer Class Regarding Charmin Freshmates
Using the familiar “reasonable consumer standard” that applies in many jurisdictions regarding allegedly deceptive sales practices, a judge of the Northern District of California recently certified a class action of California consumers who purchased Charmin/Proctor & Gamble’s “Freshmates” brand of “flushable” bathroom wet-wipes between April 6, 2011, and August 3, 2017. The class claims centered on the allegation that Freshmates were not “flushable” as advertised ... Keep Reading »
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