In many privacy and other technology-related class actions, the question of whether consumers consent to the practice at issue is central. In these cases, class action defendants have defeated motions for class certification by successfully arguing that consent is an individualized issue that is not susceptible to common proof. And though class action plaintiffs may
Class Action & Mass Torts
Eighth Circuit Affirms Dismissal of VPPA Claim
The Eighth Circuit recently affirmed dismissal of a putative class action asserting that defendant Cinema Entertainment Corporation, a regional movie theater chain, violated the Video Privacy Protection Act (“VPPA”) by disclosing website visitors’ information through a third-party pixel. See Christopherson v. Cinema Ent. Corp., No. 24-3042, 2025 WL 3512393 (8th Cir. Dec. 8, 2025). …
Third Circuit Holds Providing Clear Notice of Intent to Compel Arbitration Preserves Right to Compel Arbitration Once Right Becomes Enforceable
By Stephen Rees
A defendant can waive a right to compel arbitration if it intentionally relinquishes or abandons its known right. One way to waive a right to compel arbitration is by implied waiver: acting inconsistently with an intent to assert the right to arbitrate. But what should a defendant do to preserve future arbitration rights it cannot…
New York Passes the FAIR Business Practices Act
On December 19, 2025, Governor Kathy Hochul signed the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act (“the Act”) into law. We previously wrote a blog post about the Act, which was introduced to update and expand New York’s current consumer protection law, Sections 349 and 350 of the New York General…
New Federal Rule of Civil Procedure Provides Guidance for Early MDL Case Management
The first Federal Rule focused specifically on multidistrict litigation—which has long been a staple of complex, high-stakes litigation—took effect on December 1, 2025, as part of the 2025 amendments to the Federal Rules of Civil Procedure. …
Eighth Circuit Ices False Labeling Class Action on Predominance Grounds
An oft-litigated issue in false-advertising class actions is whether a plaintiff can show that each class member relied on the challenged statement when they made their purchasing decision. The Eighth Circuit recently offered an example of how this issue can pose a significant roadblock to class certification in In re Folgers Coffee Marketing, — F.4th…
Aggregate Damages Model, List Prices Insufficient to Demonstrate Classwide Antitrust Injury, Says Federal District Court
Last month in In re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, the Southern District of New York denied certification to a proposed class of direct purchasers who alleged that Keurig, a manufacturer of branded coffee pods and brewers, violated antitrust laws by allegedly suppressing competition from generic coffee pod manufacturers. Although the plaintiffs offered…
Recent Class Actions Under State Anti-Spam Laws Target Retail Email Marketing Practices and Raise Questions about CAN-SPAM Act Preemption
A Washington State Supreme Court decision last spring that construed that state’s Commercial Electronic Mail Act (“CEMA”) to broadly prohibit any misleading information in retailers’ email subject lines has opened the floodgates to similar state spam claims. In the past six months, there have been eight putative class action complaints alleging that retailers’ misleading email…
Tenth Circuit Adopts Majority View not Requiring “Administrative Feasibility” for Ascertainability
In Cline v. Sunoco, Inc. (R&M), 2025 WL 3199871 (10th Cir. Nov. 17, 2025), the Tenth Circuit adopted the majority view that “administrative feasibility” for identifying class members is not an independent requirement for certifying a class under Federal Rule 23. The ascertainability standard endorsed by the court requires only that the class be…
Third Circuit Affirms Dismissal of CIPA and CMIA Claims
Last week, the Third Circuit affirmed dismissal of a putative class action asserting that defendant Quest Diagnostics violated the California Invasion of Privacy Act (“CIPA”) and the Confidentiality of Medical Information Act (“CMIA”) by employing a website pixel to track and collect data about their website activity for advertising purposes. See Cole v. Quest Diagnostics…