A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.
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Another Win for Preemption in Over-The-Counter Drug Labeling Case
Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs. Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense. In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids…
Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification
By Jess Davis & Andrew Soukup
A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification. In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to…
Second Circuit Holds that Rule 23(e) Prohibits Presumption of Fairness of Arm’s-Length Negotiated Class Settlements
In Moses v. New York Times Co., 2023 WL 5281138 (2d Cir. Aug. 17, 2023), the Second Circuit vacated and remanded the approval of a class action settlement because the district court applied the wrong legal standard in determining that the settlement was fair. But in doing so, the court reiterated that incentive awards for…
California Federal Court Finds That Plaintiffs Must Arbitrate Their BIPA Claims
Recently, a court in the Northern District of California compelled arbitration in a putative privacy class action, concluding that the arbitration provision included in a photo-editing app’s terms of use was not unconscionable. See Flora, et al., v. Prisma Labs, Inc., 2023 WL 5061955 (N.D. Cal. Aug. 8, 2023).…
Fifth Circuit Declines to Wade Into Circuit Split on Relationship Between Standing and Class Certification
In a recent published decision, the Fifth Circuit declined to articulate a rule for the “order and depth in which” it “grapples with constitutional standing and the Rule 23 inquiry.” Chavez v. Plan Benefit Services, Inc., __ F.4th __, No. 22-50368, 2023 WL 5160393 (5th Cir. Aug. 11, 2023). The court concluded that the plaintiffs—three…
Ninth Circuit Holds Spam Text Messages Are Not Prerecorded Voices Under TCPA
Last week, the Ninth Circuit rejected an attempt to broaden the scope of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, when it held that text messages not containing audio could not violate the TCPA’s prohibition against sending messages with “artificial or prerecorded voices.” See Trim v. Reward Zone USA LLC, — F.4th…
Court finds Plaintiffs Fail to Plead CMIA, CIPA Claims against Health Care Corporation based on Conclusory, Hypothetical, and Vague Assertions
By Devon Schulz
A court in the Southern District of California recently dismissed for failure to state a claim a case contending that a health care corporation violated users’ privacy under California law. See Cousin v. Sharp Healthcare, No. 22-CV-2040-MMA (DDL), 2023 WL 4484441 (S.D. Cal. July 12, 2023).
In the proposed class action suit against Sharp Healthcare,…
Website Operator and Session Replay Provider Succeed on Personal Jurisdiction Arguments
At the end of last month, courts handed down two decisions in favor of website operators and their service providers in session replay litigation, granting motions to dismiss on personal jurisdiction grounds.…
Eleventh Circuit Updates Its Article III Standing Analysis
This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement. 41 F.4th 1354 (11th Cir. 2022). Because the law in the Eleventh Circuit at the time held that a single…