Class Action Insider

On April 1, 2024, Google agreed to settle a class action brought by Google Chrome users regarding their web-browsing histories under the “Incognito” option.  The action—filed in 2020 in the Northern District of California—alleged that for years, Google had been tracking individuals using Chrome’s incognito browsing mode.

On December 5, 2023, the U.S. District Court for the Eastern District of Pennsylvania in In Re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping (No. 2:22-cv-04709) dismissed several proposed class action claims on “session replay” software, limiting the viability of these suits in federal court.

In In re White, 2023 WL 2763812 (C.A.D.C., 2023), the D.C. Circuit—splitting with several other circuit courts—reversed a district court’s order that denied class certification because the plaintiffs sought to certify a “fail-safe” class. While acknowledging the recognized criticisms of fail-safe classes, the D.C. Circuit held that a standalone rule against fail-safe classes is an inappropriate and “extra-textual” limitation on certification.

On February 2^nd the Illinois Supreme Court decided Tims v. Black Horse Carriers, clarifying that all claims under Illinois’s Biometric Information Privacy Act (BIPA) are subject to a five-year—not one-year—statute of limitations. 

The new year will face additional lawsuits concerning carbon-neutral or net-zero emissions advertising claims. 2022 already experienced a string of similar claims and suits. Consulting the coming updates to the FTC guidelines on the use of environmental marketing claims will help businesses navigate potential complaints and address corporate responsibility.

Although courts in the Third Circuit permit the use of affidavits from plaintiffs seeking class certification, they are enforcing an ascertainability requirement that many other circuits don't agree with. Self-identification by putative class members have not held up under the scrutiny of the Third Circuit and alike circuits. Certifying a class may require more evidence in supplementing affidavits and validating class members.

Class action lawsuit against Costco based on “unreasonable or fanciful interpretations of labels” warrants dismissal.

The United States District Court for the District of New Jersey’s dismissal of several claims in Cohen v. Subaru Corporation exemplifies the utility of the economic loss rule and puffery arguments in the class action and false-advertising contexts.  Class action defendants should take note of these defenses as an opportunity to slice at the size and scope of plaintiffs’ cases.

Recent legislative activity suggests that class litigation may soon redress what some have described as a “Pink Tax”—a concept that has allegedly resulted in women, on average, each paying an estimated $1,350 more annually than men do for substantially similar goods and services.

Kim Kardashian’s compensated reference to a certain cryptocurrency may have been the most widely seen financial promotion in history, as observed by an industry expert. But is she liable to a putative class of investors who took her advice and lost money?

The Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) mandating that private employers with more than 100 employees determine the COVID-19 vaccination status of each employee by obtaining proof of vaccination. The mandate requires consistent testing for unvaccinated employees.

On December 1, 2021, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra took broad aim at overdraft fees, making the sort of remarks that often get quoted in class-action complaints.  Chopra claimed that the amount of overdraft fees incurred is a sign of a market failure, but proposed only technological changes to make it easier to switch banks. Further, he criticized banks whose customers overdraft frequently, saying such banks should expect closer supervisory attention. According to Chopra, many overdraft fees result from complexities in the payment-settlement system. Finally, he referred to overdraft fees as “opportunistic” and “exploitative,” and he promised action against any large financial institution that violated the law (albeit without indicating what laws might have been violated or that the CFPB had evidence of any such violations). Recent editorials call for sweeping policy changes in light of Director Chopra’s remarks.

Today, companies often use endorsements and testimonials to advertise and market their products and services on both traditional and social media.  Using celebrities or other popular figures – often called “influencers” – as part of this effort is a growing trend, with industry insiders predicting that influencer marketing may be a $10 billion dollar industry in 5 years.  You’ve undoubtedly noticed (or used) the pop sensation to model a trendy brand on Instagram or the superstar athlete driving the latest model sportscar on TikTok.  Well, the Federal Trade Commission (“FTC”) has certainly noticed.

On September 15, in a decision long-anticipated by California employers, the Ninth Circuit upheld Assembly Bill (A.B.) 51, a law that prohibits employers from requiring employees to sign arbitration agreements as a condition of employment. Arbitration agreements often contain class action waivers and thus A.B. 51 significantly impacts an employer’s ability to prevent class litigation from ensuing.

On September 30, U.S. District Court Judge Rodney Smith denied class certification in a Telephone Consumer Protection Act (“TCPA”) class action in which the named plaintiff “deceptively” prolonged calls to bolster his claims for damages. Order Denying Plaintiff’s Motion for Class Certification, Johansen v. Bluegreen Vacations Unlimited, Inc., No. 20-81076, at *10–11 (S.D. Fla. Sept. 30, 2021). This decision gives defendants a new tool, in TCPA matters and beyond, to potentially help defeat class certification.