9th Circuit Issues Important New Standing Decision

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Late last week, the Ninth Circuit settled a long-running district court split. The split pertains to when consumers have Article III standing to enjoin deceptive business practices. As the Ninth Circuit recognized, “district courts applying California law have split dramatically on this issue.”

The dispute, in short, turns on the requirement that anyone seeking an injunction must be at threat of future injury.  Quite a few courts had held that consumers who had already discovered a particular deception were not at threat of future injury, since they necessarily now knew the nature of the deception and thus could avoid being harmed again.

Many of those courts were not swayed even though they recognized their holdings created a paradox: even though injunctive relief lies at the heart of the UCL, in many cases, no plaintiff could enjoin deceptive conduct (at least in federal court). Those consumers who did not yet know of the deception would not know to file suit, whereas those who did know of the deception, would lack standing to seek an injunction.

As the Ninth Circuit recognized:

Were injunctive relief unavailable to a consumer who learns after purchasing a product that the product’s label is false, California’s consumer protection laws would be effectively gutted, as defendants could remove any such case.

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Supreme Court Applied ‘Settled Principles’ In BMS Ruling

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Leslie Brueckner of Public Justice and I just published an article in Law360 about the Supreme Court’s recent decision in  Bristol-Myers Squibb Co. v. Superior Court. Here it is in full:

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The U.S. Supreme Court’s June 26 ruling in Bristol-Myers Squibb Co. v. Superior Court[1] has been characterized by some in the defense bar as portending a sea change in “specific,” or “case-linked,” personal jurisdiction. Not so fast.

Although the case was closely watched by both sides of the aisle because of its potential to strictly limit plaintiffs’ ability to sue corporations outside of their “home” state, the 8-to-1 ruling was decided on “settled principles” of law[2] — and, as a result, it did not move the legal needle anywhere near as far as the defense bar was hoping.

In this case, both California and nonresident plaintiffs sued Bristol-Meyer Squibb (BMS), a national pharmaceutical company, for personal injuries caused by Plavix, a cardiovascular drug linked to strokes and other serious injuries. Because BMS is incorporated in Delaware and headquartered in New York, and conducts most of its operations on the East Coast, there was no basis for asserting “general,” or “all-purpose,” jurisdiction over BMS in California.[3]

Instead, the question was whether California courts could assert specific jurisdiction over BMS, which exists where the plaintiff’s claims “aris[e] out of or relat[e] to the defendant’s contacts with the forum.”[4]

Specific jurisdiction was a non-issue as to the California plaintiffs because they had bought their Plavix in California and were injured in the state.

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Ninth Circuit Issues New Spokeo Opinion

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Earlier today, the Ninth Circuit issued its long-awaited Article III standing opinion in Robins v. Spokeo.  The Ninth Circuit’s new opinion comes after the Supreme Court vacated and remanded the Ninth Circuit’s earlier opinion in the same case.

The Ninth Circuit’s opinion today continues a trend among the circuit courts, identifying intangible harms arising from statutory violations that constitute concrete harm under Article III.

In reaching its conclusion, the Ninth Circuit borrowed liberally from the recent Second Circuit decision in Strubel.  It also cites a range of other circuit court opinions, suggesting a burgeoning consensus in what had been a murky and arguably dissonant jurisprudence.

The Ninth Circuit laid out its framework as follows:

In evaluating Robins’s claim of harm, we … ask: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.

To answer the first question, the court examined the statutory purpose, and whether those aims were “‘real,’ rather than purely legal creations.”  In holding that they were, the court also pointed to the fact that similar interests have been protected at common law:

Just as Congress’s judgment about an intangible harm is important to our concreteness analysis, so is the fact that the interest Congress identified is similar to others that traditionally have been protected.

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Third Circuit Crystallizes Post-Spokeo Standard

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The Third Circuit handed down an opinion Monday holding that a violation of the Telephone Consumer Protection Act (TCPA) confers Article III standing even in the case of intangible injuries.

The opinion may prove to be less interesting for its impact on TCPA jurisprudence than for guiding courts in their efforts to understand and apply the Supreme Court’s Spokeo decision.  After all, within the TCPA context, there already appears to be a consensus that statutory violations satisfy Article III’s requirements.

But post-Spokeo, courts have grappled with the opinion’s distinction between “procedural” and “substantive” statutory violations.  Some courts have focused on that distinction; others have found it unhelpful.

The Third Circuit’s new decision, in Susinno v. Work Out World, does not require distinguishing between procedural and substantive harms – even though the Third Circuit’s earlier Horizon decision had emphasized the distinction.  Per Susinno:

We summarize Horizon’s rule as follows. When one sues under a statute alleging “the very injury [the statute] is intended to prevent,” and the injury “has a close relationship to a harm . . . traditionally . . . providing a basis for a lawsuit in English or American courts,” a concrete injury has been pleaded.

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Second Circuit Rejects “Administrative Feasibility” Requirement for Class Certification

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On Friday, the U.S. Court of Appeals for the Second Circuit, in In re Petrobras Securities,  issued an important ruling rejecting a “heightened” ascertainability requirement for class certification. This decision comes as the Supreme Court is being asked to hear this same legal question in a case arising out of the Ninth Circuit. Petrobas shows that any disagreement between the circuits on this issue has grown stale, and Supreme Court review is unlikely.

In Petrobas, the Second Circuit was urged to adopt a rule “under which any proposed class must be ‘administratively feasible,’ over and above the evident requirements that a class be ‘definite’ and ‘defined by objective criteria,’ and separate from Rule 23(b)(3)’s requirements of predominance and superiority.” Slip op. at 28. The court, however, declined to adopt this requirement, because not only was it not required by Rule 23, it was incompatible with this rule. Id. at 35-40. Instead, ascertainability in the Second Circuit is less demanding, requiring only “that a class be defined using objective criteria that establish a membership with definite boundaries.” Id. at 28.

Many in the defense bar understood Second Circuit law differently. For example, the recent cert petition filed by defendants in Conagra Brands, Inc.Read more

Supreme Court Rules on Plaintiffs’ Ability to Appeal Class Certification Denial

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The Supreme Court has issued its opinion in Microsoft v. Baker, ruling class action plaintiffs cannot circumvent the Rule 23(f) procedure governing the appeal of class certification denials by voluntarily dismissing their claims with prejudice.

Following oral argument several months back, the consensus had been that the ruling in Baker would be in Microsoft’s favor.  In fact, even the Ninth Circuit appeared to back away from its holding in Baker, issuing a contrary ruling while Baker remained pending before the Supreme Court.

The predictions proved right, with the Supreme Court issuing a ruling that reached a unanimous result: plaintiffs cannot appeal a denial of class certification unless they either successfully petition for permission to appeal under Rule 23(f) or continue to litigate after the denial of certification until judgment.

Perhaps most interesting about the ruling was the 5-4 split on the underlying reasoning. Justice Kennedy and the liberal wing of the Court premised the majority ruling on the basis that federal courts of appeals lack jurisdiction under the “final judgment rule” of §1291 to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice.… Read more

Second Circuit Reverses Dismissal on Standing Grounds

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It’s axiomatic that – at the pleading stage – all inferences are to be drawn in plaintiffs’ favor. All well pled allegations are to be taken as true.

Yet complaints are often nitpicked, especially by defendants who foresee trouble once discovery is underway.  They search for holes in the pleadings, even when (or especially when) those holes are likely to be filled later with evidence.

That strategy often works.  So plaintiffs can take solace in the new Second Circuit opinion that not only reiterates these general principles, but expressly relies on them to form the backbone of its opinion.

The case is John v. Whole Foods Market Group.  Plaintiff alleged Whole Foods systematically overstated the weights of prepackaged foods, leading to overcharges for its customers.  The case followed a New York Department of Consumer Affairs investigation, which concluded some 89% of Whole Foods’ prepackaged foods featured overstated weights.

Whole Foods moved to dismiss on standing grounds.  It argued that just because the weight of 89% of its food had been overstated, that didn’t necessarily mean that the weight of plaintiff’s food had been overstated.  So, Whole Foods argued, plaintiff could not plausibly allege that he overpaid.  Whole Foods also sought dismissal on the ground that the complaint lacked details about the New York investigation’s methodology.… Read more

The Supreme Court Puts Personal Jurisdiction On Trial

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Leslie Brueckner of Public Justice and I just wrote an article for Law360 about a pair of cases before the U.S. Supreme Court concerning personal jurisdiction. You can find the article on Law360 and also below.

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Remember personal jurisdiction, the topic that everyone slept through during law school? Guess what? Personal jurisdiction is no longer boring: in fact, it’s become the hottest new corporate defense strategy, particularly in the area of mass torts.

And it’s now before the U.S. Supreme Court, in two cases argued on April 25, 2017: Bristol Myers Squibb Company v. County of San Francisco (BMS) and BNSF Railway Co. v. Tyrrell (BNSF). Unfortunately, judging from the way things went during oral argument, the outlook for plaintiffs seems bleak.

Ever since 2014, when the U.S. Supreme Court decided Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), corporations have been raising personal jurisdiction as a threshold defense to stop injury victims from getting a hearing on the merits of their claims. And, in many cases, the courts are agreeing with them, and throwing the victims’ claims out of court.[1]

BMS and BNSF will decide the viability of that strategy — with major implication for injury victims’ ability to seek justice in a forum of their choosing.… Read more

Toyota Can’t Enforce Dealer Arbitration Agreements (11th Cir.)

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In a recent unpublished opinion, the Eleventh Circuit refused Toyota’s request to compel arbitration against one of its customers.  This decision is consistent with several others, including in the Ninth Circuit.

In Drayton v. Toyota Motor Credit Corp., plaintiff sued Toyota for violating the TCPA and Florida’s analog statute. Toyota moved to compel arbitration, pointing to the purchase contract entered into between plaintiff and her local dealership.

Toyota, like most automotive manufacturers, does not sell vehicles directly to its customers.  So as is typical of vehicle purchase transactions, Toyota was not a party to the purchase agreement.  And Florida law, like many other states, does not ordinarily allow non-signatories to enforce contracts.

Toyota sought to exploit an exception, arguing that under the equitable estoppel doctrine, plaintiff could not seek to hold a party to the terms of an agreement while simultaneously trying to avoid the agreement’s arbitration clause.  The problem?  Plaintiff was not seeking to hold Toyota to the terms of the agreement.  Her claims stemmed from Toyota attempting to collect a consumer debt.

The Eleventh Circuit’s decision continues the consumer friendly trend of disallowing automotive manufacturer attempts to avoid liability by pointing to the forced arbitration clauses in their dealers’ contracts. … Read more

11th Cir.: VPPA Violation Satisfies Spokeo

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The Eleventh Circuit yesterday joined several other courts in holding that a bare procedural violation of the Video Privacy Protection Act confers Article III standing under the Supreme Court’s Spokeo decision.

In Perry v. Cable News Network, the plaintiff alleged that a downloadable CNN app for smartphones tracks and records user’s views of news articles and videos. Plaintiff alleged that when a user closes the app, CNN sends the viewing activity and other data to a company called Bango, a third party company that conducts data analytics.

CNN moved to dismiss, arguing plaintiff failed to allege a legally cognizable injury under Spokeo because the alleged violation of a statutory right is not on its own sufficiently concrete.  The Eleventh Circuit disagreed:

Perry has established his standing to file this action because his alleged injury is sufficiently concrete. Although Perry does not allege any additional harm beyond the statutory violation, the Supreme Court has made clear that our analysis does not end there. See Spokeo, 136 S. Ct. at 1549. Instead, “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact” so that “a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.” Id.; see also Havens Realty Corp.

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