by
The Ninth Circuit affirmed the district court's order approving the cy pres-only settlement arising from class action claims that Google violated users' privacy by disclosing their Internet search terms to owners of third-party websites. The panel held that the district court did not abuse its discretion in approving a cy pres- only settlement where the settlement funds were non-distributable; the district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible; the district court did not abuse its discretion in approving the six cy pres recipients; the district court appropriately found that the cy pres distribution addressed the objectives of the Stored Communications Act and furthered the interests of the class members; a prior relationship or connection between the cy pres recipient and the parties or their counsel, without more, was not an absolute disqualifier; and the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs. View "In re Google Referrer Header Privacy Litigation" on Justia Law

by
Husband and wife paid $83,475 for a new Volvo T8, plus $2,700 for a charging station. Volvo’s advertisements claimed that the T8’s battery range was 25 miles. In practice their T8 averaged a eight-10 miles of battery‐only driving. Husband filed suit, asserting a class of others similarly situated under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), and received a letter from Volvo that offered “a full refund upon return of the vehicle if you are not satisfied with it for any reason” and to “arrange to pick up your vehicle.” The next day Volvo moved to dismiss husband’s suit on the theory that he lacked standing because only his wife was on the car’s title. Before the court ruled on the motion, his wife was added to the complaint. Volvo moved to dismiss, contending that she lacked standing because its letter had offered complete relief before she filed suit. The district judge agreed and dismissed. The Seventh Circuit reversed, seeing “no reason why the timing of the offer has such a powerful effect. Offers do not bind recipients until they are accepted. An unaccepted pre‐litigation offer does not deprive a plaintiff of her day in court. View "Laurens v. Volvo Cars of North America, LLC" on Justia Law

by
After hackers accessed the internal database of Scottrade, plaintiff and others filed a putative class action against Scottrade. The district court concluded that plaintiff lacked Article III standing because he had not suffered injury in fact and dismissed the Consolidated Complaint for lack of subject matter jurisdiction. The Eighth Circuit held that plaintiff had Article III standing because he alleged a concrete and particularized breach of contract and "actual" injury. The court held, however, that plaintiff failed to state a claim for breach of an express contract where the allegation that the failure of Scottrade's security measures was a breach of contract that diminished the benefit of plaintiff's bargain was not plausible; claims for breach of implied contract and unjust enrichment were dismissed for the same failure to allege plausible claims; plaintiff's bare bones claim for declaratory relief was virtually unintelligible; and plaintiff failed to plausibly allege how failing to discover and notify customers of the data breach qualified as an unfair or deceptive trade practice under the state statute. Accordingly, the court affirmed the dismissal of the complaint. View "Kuhns v. Scottrade, Inc." on Justia Law

by
Direct purchasers of Wellbutrin XL, a drug for treating depression, sued, alleging that GSK violated the Sherman Antitrust Act by entering into an unlawful conspiracy with Biovail, GSK’s partner in the development of Wellbutrin XL, to delay the launch of generic versions of the drug. Indirect-purchasers asserted similar theories under state law. The purchasers claim that GSK delayed the launch of generic versions by supporting baseless patent infringement suits and a baseless FDA Citizen Petition aimed at generic drug companies and by entering into an unlawful reverse payment settlement agreement with potential competitors. The district court granted GSK summary judgment, finding insufficient evidence that GSK’s patent litigation was a sham or that the settlement delayed the launch of generic Wellbutrin XL. The court granted GSK’s Daubert motion to exclude the testimony of the purchasers’ economic expert; decertified the indirect-purchaser class for lack of ascertainability; dismissed the indirect-purchaser claims brought under the laws of states that were not the home of a named class representative; and denied Aetna’s motion to intervene. The Third Circuit affirmed. After considering the Supreme Court’s 2013 decision, FTC v. Actavis, the court concluded that the purchasers failed to establish a genuine dispute of fact either as to whether GSK engaged in sham litigation or whether GSK’s actions delayed the launch of generic Wellbutrin XL. View "In re: Wellbutrin XL Antitrust Litigation" on Justia Law

by
Ronald Brenner sought to amend his late wife’s putative class action complaint in order to name himself as lead plaintiff. Jacqueline Brenner filed the complaint against Williams-Sonoma, Inc., alleging that the company’s practice of collecting customers’ zip codes constituted unjust enrichment and violated Mass. Gen. Laws ch. 93, 105(a). Ronald never became a party to the action. After Jacqueline died, Ronald moved pursuant to Fed. R. Civ. P. 15(a)(2) to leave to amend the complaint to add himself as a plaintiff in his individual capacity. The district court ruled that the amendment would be futile. Ronald appealed. The First Circuit dismissed Ronald’s appeal for lack of jurisdiction, holding (1) Ronald did not become a party below and there was no equitable reason to allow the appeal; and (2) Ronald was not a member to this action and lacked standing to appeal. View "Brenner v. Williams-Sonoma, Inc." on Justia Law

by
Creditsmarts operates an internet-based business that helps independent car dealers connect customers with lenders. BMW offers direct automotive financing to customers through “up2drive.” In 2012, BMW and Creditsmarts entered into agreements, under which BMW would offer up2drive loans to borrowers at participating dealerships through Creditsmarts. Creditsmarts subsequently used the services of a fax broadcaster to fax about 21,000 advertisements to dealerships. The advertisements identified BMW and stated, “UpToDrive is looking for your BUSINESS!!” A list of recipients was generated from Creditsmarts’s customer database. Neither Creditsmarts nor Westfax retained lists of recipients. Plaintiff received a fax and alleges that it had no preexisting business relationship with Creditsmarts or BMW and that the fax was unsolicited. Plaintiff brought suit under the Telephone Consumer Protection Act, 47 U.S.C. 227, asserting claims under FRCP 23 on behalf of a class defined as: All auto dealerships that were included in the Creditsmarts database on or before December 27, 2012, with fax numbers … who were sent” BMW faxes on specific dates. The Creditsmarts database was not preserved as of December 2012 but was preserved as of February 2014. The Third Circuit vacated the denial of class certification. Precedent does not categorically preclude affidavits from potential class members, combined with the Creditsmarts database, from satisfying the ascertainability standard. Because the database was not produced during discovery, plaintiff was denied the opportunity to demonstrate whether a reliable, administratively feasible method of ascertaining the class exists View "City Select Auto Sales Inc v. BMW Bank of North America Inc" on Justia Law

by
Regency operated for‐profit cosmetology schools in 20 states. Each offered classroom instruction and practical instruction in a salon, where members of the public could receive cosmetology services at low prices. Hollins, formerly a Regency student, asserts that the work she performed was compensable under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, and that Regency violated state wage laws. She wanted to bring suit as an FLSA collective action and a state class action but the district court denied her motion to conditionally certify the FLSA action and never certified a class action under FRCP 23. The court addressed the individual merits of her case and granted summary judgment in Regency’s favor. Regency has since closed. The Seventh Circuit affirmed, first rejecting a claim that it lacked jurisdiction. There was a final judgment despite the unaccepted opt‐in notices that the court received. On the merits, the court noted that time on the Professional Floor was a state‐mandated requirement for professional licensure; Hollins was actually paying for supervised practical experience; Regency was in the educational business, not in the beauty salon business; and Hollins did not need to go out and find a place where she could serve her supervised practice. View "Hollins v. Regency Corp." on Justia Law

by
In a class action against Sears concerning a defect in washing machines, the district court awarded class counsel $4.8 million, 1.75 times the fees counsel originally charged for their work on the case. The court reasoned that the case was unusually complex and had served the public interest and that the attorneys obtained an especially favorable settlement. The amount of damages that the class will receive has not yet been determined. The district court accepted Sears' estimate that the class members would receive no more than $900,000. The Seventh Circuit reversed, noting that the “case wasn’t very complex—it was just about whether or not Sears had sold defective washing machines.” A district court should compare attorney fees to what is actually recovered by the class and presume that fees that exceed the recovery to the class are unreasonable. The presumption is not irrebuttable, but in this case, class counsel failed to prove that a reasonable fee would exceed $2.7 million. View "Barnes v. Sears, Roebuck and Co." on Justia Law

by
A plaintiff may rely on the "deterrent effect doctrine" to establish constitutional standing under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., where she lacks firsthand knowledge that an establishment is not in ADA compliance. A plaintiff has constitutional standing where her only motivation for visiting a facility is to test it for ADA compliance. The Ninth Circuit held that, although plaintiffs in this case have standing to maintain their ADA suit, the district court did not abuse its discretion in denying class certification because plaintiffs failed to meet the commonality requirement in Federal Rule of Civil Procedure 23. View "Civil Rights Education and Enforcement Center v. Hospitality Properties Trust" on Justia Law

by
In 2014, Haley and others filed a putative class action against Kolbe & Kolbe Millwork, claiming that windows purchased from Kolbe were defective and had allowed air and water to leak into (and damage) the plaintiffs’ homes. Kolbe tendered the defense of the defective-product claims to several insurance companies. Two companies—United States Fire Insurance and Fireman’s Fund—obtained permission to intervene in the case. United States Fire successfully moved for summary judgment, arguing that a 2016 decision of the Wisconsin Supreme Court (Pharmacal) absolved the insurers of their duty to defend Kolbe in the underlying suit. The court sua sponte awarded judgment to Fireman’s Fund. The Seventh Circuit reversed the judgment that the insurance companies had no duty to defend. The “Pharmacal” analysis does not apply because the homeowners sought compensation for the repair or replacement of individual elements of a larger structure. This kind of particularized demand was not at issue in Pharmacal, which applied an "integrated structure" analysis. Whether the walls and other elements of the plaintiffs’ homes constitute Kolbe’s “product,” such that coverage for any damage to those materials is extinguished by a policy exclusion is ambiguous. View "Haley v. Kolbe & Kolbe Millwork Co." on Justia Law