A Northern District of California court excluded two groups from certified classes alleging privacy violations against Google, finding that individuals who did not set their own privacy settings did not satisfy the predominance requirement of Rule 23(b)(3). In Rodriguez, et al., v. Google LLC, 2024 WL 1486139 (N.D. Cal. Apr. 5, 2024), plaintiffs had filed a putative class action against Google alleging that their online activities were transmitted to Google even after they turned off certain internet tracking settings, constituting alleged intrusion upon seclusion, invasion of privacy, and vio ..read more

Earlier this month, the Judicial Conference’s Advisory Committee on Civil Rules unanimously approved a proposed new rule to the Federal Rules of Civil Procedure to address case management of multidistrict litigation (“MDL”).  The rule is the first addition to the Federal Rules focused on MDLs, and it reflects an attempt to suggest a nationwide approach to MDL case management that tracks approaches to case management that MDL judges have often followed in practice while leaving MDL judges discretion to depart from the suggested procedures depending on the needs of a particular case. The ap ..read more

On April 15, the U.S. Supreme Court declined a request by Visa and Mastercard to review a D.C. Circuit decision that appeared to add to a circuit split about how lower courts are to determine whether common issues predominate under Federal Rule of Civil Procedure 23(b)(3).  The case, Visa Inc. v. Nat’l ATM Council, Inc., Case No. 23-814, was part of a long-running dispute between the card companies and ATM operators about ATM fees.  In July, the D.C. Circuit upheld the certification of three different Plaintiff classes over the card companies’ argument that the district court had fai ..read more

A court in the Southern District of New York recently dismissed a lawsuit alleging that an “All Natural” representation on the front label of defendant’s beverage products was false and misleading because the products contained synthetic citric acid and used vegetable and fruit juice concentrates for color.  Valencia v. Snapple Beverage Corp., 2024 WL 1158476 (S.D.N.Y. Mar. 18, 2024). Plaintiff alleged that the “All Natural” representation on the label was misleading because it used citric acid, “an industrially produced, synthetic ingredient.”  The court held that this generalized a ..read more

Environmental, social, and corporate governance (ESG) initiatives have become increasingly important in today’s business setting.  Increased awareness and heightened scrutiny of ESG-related issues, combined with third-party litigation funding, has led to a surge in ESG-related litigation and enforcement actions as consumers, regulators, and investors seek to hold companies accountable for claims about their environmental and social impact.   This post explores the emerging trends shaping the landscape of ESG litigation, which are increasingly centralized in courts in the District of ..read more

In a short, unanimous opinion on April 12, 2024, the Supreme Court shut the door on “pure omission” claims under Rule 10b–5 and made clear that the Rule is limited to claims based on false or misleading statements. The case, Macquarie Infrastructure Corp. v. Moab Partners, L.P., concerns alleged omissions in Defendant Macquarie’s SEC filings related to its subsidiary’s operation of bulk liquid storage terminals.  In 2016, the United Nations’ International Maritime Organization issued a regulation limiting this subsidiary’s ability to store high-sulfur fuel oil, its single largest product ..read more

The Northern District of Illinois recently denied certification to several proposed classes of purchasers of a seizure drug called Acthar in City of Rockford v. Mallinckrodt ARD, Inc., No. 3:17-cv-50107, 2024 WL 1363544 (Mar. 29, 2024).  Class plaintiffs had alleged that defendant Express Scripts, a drug distributor, conspired with Mallinckrodt, a drug manufacturer, to raise the price of Acthar through an exclusive distribution arrangement.  In denying certification to the damages classes, the court determined that plaintiffs had not met Rule 23(b)(3)’s predominance standard because ..read more

Defendants in privacy class action lawsuits increasingly face assertions by plaintiffs and putative class members that they should be awarded statutory penalties that vastly exceed any purported actual damages. A recent decision under the False Claims Act reinforces the constitutional limitations plaintiffs may face in pursuing these outsized awards. The United States District Court for the District of Minnesota recently reduced a monetary award under the False Claims Act (31 U.S.C. §§ 3729-3733) on the basis that it violated the Excessive Fines Clause of the Constitution, cutting the award by ..read more

In Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co., 95 F.4th 181 (4th Cir. 2024), the Fourth Circuit took the unusual step of exercising interlocutory appellate jurisdiction over an order denying a motion to dismiss.  Having granted a petition for interlocutory review under Federal Rule of Civil Procedure 23(f) of a class certification order, the court concluded that its review of the class order required it also to review the district court’s earlier denial of the defendant’s motion to dismiss.  Elegant Massage arose out of a dispute over whether State Farm’s insu ..read more

A court in the Southern District of New York recently denied plaintiffs’ motion for class certification on adequacy grounds in a suit challenging the labeling of “Maximum Strength” Robitussin cough syrup.  See Woodhams v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC (S.D.N.Y. Mar. 21, 2024).  Plaintiffs alleged that during a two-year period following a reformulation of Maximum Strength Robitussin, that product contained half as many doses per bottle as Regular Strength Robitussin yet cost more.  Woodhams, ECF No. 135 at 2-3.  Plaintiffs contended that “at the time ..read more