The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss. MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir.
Class Action & Mass Torts
The U.S. Supreme Court Punts on Section 230 in Gonzalez v. Google LLC
The Supreme Court recently issued its opinion in Gonzalez v. Google LLC, a case about whether Section 230 of the Communications Decency Act (47 U.S.C. § 230) protected YouTube’s recommendation algorithms from a claim of secondary liability under the Anti-Terrorism Act (ATA). In a short, three-page per curiam opinion, the Court avoided addressing the Section 230…
Court Denies Remand of Privacy Suit, Finding Article III Standing Under TransUnion
By Ellen Choi & Megan Rodgers
A federal district court recently denied remand of a proposed class action against Twitter, Inc., rejecting plaintiff’s arguments, including that the removal was improper because his claim was limited to a “statutory damages remedy” that does not confer Article III standing under TransUnion LLC v. Ramirez. See Order Denying Plaintiff’s Motion to Remand, Morgan v.…
New York and Minnesota Video Privacy Statutes Do Not Include Private Rights of Action for Retention of Rental History Data, Federal Court Holds
A court in the Northern District of California recently dismissed with prejudice a case that claimed a company violated the New York Video Consumer Privacy Act (“NYVCPA”) and the Minnesota Video Privacy Law (“MVPL”) by retaining consumers’ personally identifiable video rental history data. The court found that neither the NYVCPA nor the MVPL contained private…
Sixth Circuit Rejects Juridical Link Exception to Standing in Class Actions
The Sixth Circuit recently vacated a class certification order in a decision that may make it easier for defendants to defeat putative class actions where a named plaintiff asserts standing based on the injuries of absent class members. Under the “juridical link doctrine,” a named plaintiff may bring a class action against defendants who did…
Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification
The Third Circuit recently affirmed the denial of class certification to end-payor health plans that alleged that the defendant’s “pay-for-delay” settlement of patent infringement litigation inflated prices on a prescription drug. In doing so, the court reaffirmed that named plaintiffs must present an administratively feasible mechanism to ascertain whether putative class members fall within the…
Tenth Circuit Permits District Courts to Rely on Third and Seventh Circuit Ascertainability Precedent
By Isaac Chaput
The Tenth Circuit recently affirmed an order denying class certification, in an unpublished decision holding that district courts may rely on out-of-circuit precedent in deciding whether a proposed class is ascertainable.…
A Closer Look: Courts Reject California Wiretap Claims Based on Website Chat Features
By Amy Heath & Kathryn Cahoy
Late last year, our colleagues highlighted a wave of class action litigation asserting novel claims under state wiretap laws against website operators that use session replay software and chatbots on consumer websites. Federal district courts in California have now ruled on the first round of chatbot cases, most brought by a handful of “tester” plaintiffs…
Supreme Court Denies Cert on Incentive Awards
We previously covered the Eleventh Circuit’s decision in Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), in which the Eleventh Circuit relied on two Supreme Court decisions from the 1880s to prohibit courts from awarding incentive or service awards to class representatives in class settlements. Id. at 1255 (citing Trustees v. Greenough,…
Federal Court Finds That Plaintiffs Aren’t “Subscribers” Under The Video Privacy Protection Act
By Janelle Lamb
On April 24, 2023, a judge in the Southern District of New York dismissed a putative class action alleging that Scripps Network LLP (“HGTV”) disclosed plaintiffs’ identities and streaming activities on hgtv.com in violation of the Video Privacy Protection Act (“VPPA”). See Carter v. Scripps Networks, LLC, No. 22-CV-2031 (PKC), 2023 WL 3061858, at *1…