On this Cyber-Monday, we would like to address one of the hottest technology topics of the past year: artificial intelligence. Some have speculated that AI may help boost low response rates to settlement notices. But there are also concerns that AI could make it easier to file fake class-action suits.Continue Reading How Will AI Affect Class Actions?
For Halloween, rather than discuss any of the various litigation over candy (e.g., the litigation over Skittles or “slack fill” in packages), we are going to travel back to 1984 to look at what a mishap with a sheep costume says about how consumer expectations can affect liability from Ferlito v. Johnson & Johnson, 983 F.2d 1066 (6th Cir. 1992) (Table).Continue Reading Little Bo Peep’s Fiery Sheep
Over the past year, there have been a growing number of lawsuits, including class actions, filed against website operators in various states — including California, Florida, Illinois, and Pennsylvania — for violations of state wiretapping laws or the Video Privacy Protection Act of 1988 (VPPA).
At a high level, these wiretapping lawsuits claim that the website intercepts website user and visitor information via session replay technology and other tracking technology in violation of certain state wiretapping laws. The states in which these lawsuits are occurring are states that require two-party consent to record conversations. Generally, session replay technology is the website’s ability to capture or track a user’s behavior, including what screen is being viewed, the user’s inputs — keyboard and mouse clicks — and other movements around the website. This also includes information provided in chat windows and other free text boxes. Other suits cite violations of VPPA’s prohibition of sharing information about one’s video viewing habits without consent.
To read the full Taft law bulletin, which provides background on state law wiretapping and VPPA claims, as well as some key takeaways, visit here.
Did you know that there was a class-action lawsuit after Super Bowl XLV? The game was played at Cowboys Stadium (now known as AT&T Stadium) in Dallas, Texas, between the Pittsburgh Steelers and Green Bay Packers. The litigation arose out of a temporary-seating debacle: the full complement of temporary seats was not installed in time, resulting in some ticketholders being left without seats and others being relocated. There was also another group of ticketholders who complained about a restricted view from their seats even though they did not receive the lower, restricted-view ticket price. On the field, the Packers defeated the Steelers 31-25. In the courtroom, the plaintiffs’ bid for class certification suffered the same fate as the Steelers. A look at the Fifth Circuit’s opinion in Ibe v. Jones, 836 F.3d 516 (5th Cir. 2016), provides some valuable insights.Continue Reading Super Bowl Class Action
Over the holidays, I enjoyed watching Pepsi, Where’s My Jet?, the Netflix four-episode documentary about John Leonard’s attempt to claim a Harrier fighter jet through the “Pepsi Stuff” promotion during the 1990s. Pepsi ultimately prevailed in the litigation that ensued when the soft-drink company denied Leonard’s claim. See Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999). Here are four thoughts that I had on the series as someone who practices consumer litigation.Continue Reading Four Thoughts on Pepsi, Where’s My Jet?
Due to a Fifth Circuit decision striking down the Consumer Financial Protection Bureau’s (CFPB) Payday Lending Rule promulgated in 2017 — in a case known as Community Financial Services Association of America, Limited v. CFPB — the Bureau’s very existence is in peril.
Some of the key takeaways from this decision are:
- CFPB’s funding structure violates the Constitution’s Appropriations Clause.
- There was a “linear nexus” between the unconstitutional funding mechanism and the challenged CFPB action — in this case, a rule promulgated by the Bureau.
- That nexus applies to all CFPB actions resultant from the CFPB’s funding, including the rules it promulgates, the investigations it conducts, and the decisions it makes.
- Most and perhaps all of the CFPB’s actions, rules, investigations, and decisions are in jeopardy.
- Private entities subject to the CFPB might want to deploy this decision expeditiously and strategically.
Taft litigation partner Sohan Dasgupta details how the CFPB operates and provides further insight into the Fifth Circuit decision, including who benefits most from it. Download the white paper here.
A recent Sixth Circuit opinion reiterated that, for purposes of evaluating diversity jurisdiction, the citizenship of a limited liability company is determined by the citizenship of its members. E.g., Akno 1010 Mkt. Street St. Louis Missouri LLC v. Pourtaghi, 43 F.4th 624, 626 (6th Cir. 2022). An LLC’s state of organization and principal place of business are irrelevant to that analysis because 28 U.S.C. § 1332(c) refers specifically to “corporation[s],” while LLCs, like partnerships, are treated as unincorporated associations. Id.; Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009) (“The general rule is that all unincorporated entities — of which a limited liability company is one — have the citizenship of each partner or member.”). But a different jurisdictional test applies when a plaintiff’s complaint falls within the Class Action Fairness Act (CAFA).
There is a public perception that class actions result in multimillion-dollar liability for the defendants. The recent settlement of Woodard v. Labrada, a case in which TV’s Dr. Mehmet Oz was originally named as a defendant, shows that is not always the case. The suit alleged misrepresentations regarding certain weight-loss supplements manufactured by Labrada Bodybuilding Nutrition, Inc., which the plaintiffs claimed Dr. Oz received compensation to promote on his TV show. After six years of litigation, Labrada — the only remaining defendant (the plaintiffs dismissed the allegations against Dr. Oz and other media defendants) — agreed to a settlement that requires the payment of just $625,000.
On Monday, the U.S. Supreme Court, in Morgan v. Sundance, Inc., overturned the arbitration-specific waiver rules in nine circuits that had held a finding of prejudice was essential to determining whether a party had waived its right to arbitrate. Instead, courts should apply “ordinary procedural rules” — such as the federal law that waiver is the intentional relinquishment or abandonment of a known right (without a prejudice requirement) — to determine whether an arbitration agreement is enforceable.
The Eighth Circuit’s recent decision in Schumacher v. SC Data Center, Inc. provides guidance on when alleged violations of the Fair Credit Reporting Act do not constitute a concrete injury sufficient to confer standing under the Supreme Court’s TransUnion LLC v. Ramirez decision. Given class-action plaintiffs’ fondness for claims seeking statutory damages, the potential ramifications of TransUnion — which was issued last summer and cast further doubt on whether plaintiffs have standing to recover statutory damages for technical violations of the FCRA and other statutes — have been a hot topic among the class-action bar. In fact, an entire panel discussion at this year’s ABA National Institute on Class Actions was devoted to TransUnion.
TAKEAWAY: While the full impact of TransUnion remains to be seen, Schumacher shows that plaintiffs may not have standing to pursue violations of the FCRA’s requirements that employers provide information to prospective employees.