Every lawyer knows that in order to sue in federal court, plaintiffs must show that they are not merely raising abstract disputes, but have actually suffered concrete injuries.  As the Supreme Court has long held, that requirement is built into Article III, section 2 of the United States Constitution, which limits the federal judiciary’s power to resolving certain “Cases” and “Controversies.”  See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 (1992).  Without such an injury, the federal courts simply lack constitutional jurisdiction to resolve the case. In Spokeo v. Robi ..read more

The U.S. Supreme Court will soon hear argument in a Fair Credit Reporting Act (“FCRA”) class-action case out of the Ninth Circuit, Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020), cert. granted in part sub nom. TransUnion LLC v. Ramirez, Sergio L., No. 20-297, 2020 WL 7366280 (U.S. Dec. 16, 2020), that raises the question of whether all class members, and not just the class representative, must establish Article III standing to receive individual money damages at the final-judgment phase. Assuming, as the Ninth Circuit held, that all class members must show standing in these cir ..read more

On September 24, 2020, a divided panel of the Sixth Circuit rejected a trial court’s novel attempt to use Rule 23 to create a class for negotiation purposes only.  In re: Nat’l Prescription Opiate Litig., ___ F.3d ___, 2020 WL 5701916 (6th Cir. Sept. 24, 2020). Unlike the classes that Rule 23 expressly contemplates to litigate claims or effectuate an already negotiated settlement, the “negotiation class” that District Judge Dan Polster certified in September of 2019 was created to permit participating parties to attempt to negotiate a possible classwide settlement of thousands of federal ..read more

By Charles B. Casper and Robert E. Day If your company uses an online agreement and sells to Philadelphia residents, you will want to know about a January 3, 2020 Philadelphia Court of Common Pleas ruling in Kemenosh v. Uber Technologies, Inc. The court refused to enforce the arbitration agreement in Uber’s Terms of Service on grounds contrary to settled law. Uber’s sign-up screen notified customers that “By creating an Uber account, you agree to the Terms of Service & Privacy Policy.”  Those terms were accessible by clicking a hyperlink embedded in the phrase, “Terms of Service ..read more

On March 8, 2019, the Third Circuit became the third federal court of appeals to hold that a shopper alleging he or she received a receipt displaying too many digits of a credit card number—in violation of the Fair and Accurate Credit Transactions Act’s ban on printing “more than the last 5 digits”—has not alleged a concrete injury for Article III standing.  The complaint failed to allege that the non-compliant receipt had been disclosed to a third person who might attempt to use it to commit identity theft or credit card fraud, or that disclosure of the first six digits—which reveal onl ..read more

On January 8, the Supreme Court handed down its second unanimous opinion on arbitration in as many weeks, New Prime Inc. v. Oliveira, 586 U.S. ___ (Jan. 15, 2019). The first opinion, Schein (as discussed here) requires courts to interpret delegation clauses strictly and enforce them as written. New Prime reminds us that courts must answer preliminary questions about the Federal Arbitration Act’s (“FAA’s”) applicability before exercising any authority the FAA gives courts—including the authority to compel arbitration. More specifically, the Court held that the FAA does not apply to agreements ..read more

In Justice Brett Kavanaugh’s first opinion, Henry Schein, Inc. v. Archer and White Sales, Inc., 586 U.S. ___ (Jan. 8, 2019), the Supreme Court rejected the “wholly groundless” exception to the enforcement of certain arbitration delegation clauses. The opinion provides the Court’s most recent reminder that the terms of arbitration agreements must be interpreted strictly and protected from unjustified court intrusion. Arbitration agreements, by their very nature, define a set of claims an arbitrator, not a court, will decide. If a party brings such a claim in court, then the court, honoring the ..read more

On Wednesday of last week, the Eleventh Circuit did what no other post-Spokeo federal court of appeals has done.  It held that a plaintiff alleging a willful violation of the Fair and Accurate Credit Transactions Act (“FACTA”) based on being given a receipt that showed more than the last five digits of his credit card number—and specifically a receipt that the plaintiff kept and apparently showed to no one but his lawyers—has Article III standing to sue the company that gave him the receipt for statutory damages.  The decision in Muransky v. Godiva Chocolatier, Inc., No. 16-16486 &a ..read more

Earlier this week, the Third Circuit issued its decision in Long v. SEPTA, No. 17-1889, 2018 WL 4290046 (3d Cir. Sept. 10, 2018)—another in a series of decisions from that court on Article III standing in cases where plaintiffs allege that a defendant’s violation of a regulatory statute injured them.  However, unlike most of the recent Third Circuit decisions in this type of case, this time the court concluded that the plaintiffs did not have standing to sue for one of the alleged statutory violations. Since the Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016 ..read more

In Kristensen v. Credit Payment Services Inc., the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s summary judgment that lenders and marketers who did not ratify the actions of a third-party publisher were not vicariously liable under the Telephone Consumer Protection Act (“TCPA”) for an unauthorized text message the publisher sent to a consumer.  879 F.3d 1010, 1012 (9th Cir. 2018).  This decision adds clarity to the Ninth Circuit’s previous ruling that businesses are not vicariously liable for text messages sent by an agent without the principal’s approval ..read more