Articles Posted in Class-Action

Approximately 38,000 consumer lawsuits have been filed against Johnson & Johnson for allegedly including asbestos in their baby powder, which allegedly caused ovarian cancer and mesothelioma. Executives at Johnson & Johnson allegedly knew about the risks of asbestos for decades and still included it in their baby powder. Those same executives deny the allegations that their product is contaminated or that it caused anyone to get sick.

The company finally pulled its baby powder off the shelves in 2020, but only because bad publicity had hurt sales, according to the giant pharmaceutical company.

The results of the lawsuits against Johnson & Johnson have been a mixed bag. The company has emerged victorious in some of those lawsuits but has been ordered to pay billions of dollars to plaintiffs in other lawsuits.

People with ovarian cancer or mesothelioma are too sick to work and need caregivers to tend to their basic needs, which means either a family member can’t work, or they need to hire a full-time caregiver. Those expenses could be covered by a settlement in the lawsuit against Johnson & Johnson, but the company, which is valued at $400 billion, has found a legal loophole to avoid facing those lawsuits. Continue reading ›

In a recent decision, the U.S. Court of Appeals for the Eleventh Circuit revived a class action lawsuit filed against Avior Airlines accusing the airline of forcing passengers to pay undisclosed fees in order to board flights from Miami to Venezuela. In its decision, the appeals court ruled that the class action suit could proceed and that the district court erred when it found the claims preempted by the Airline Deregulation Act.

Plaintiffs Roberto Hung Cavalieri and Sergio Enrique Isea purchased tickets for flights operated by the defendant Avior Airlines. According to the plaintiffs’ compliant, the plaintiffs purchased tickets from Miami to Venezuela. The itineraries and receipts for the tickets indicated that the price “included taxes and fees.” However, on the day of their flights, the plaintiffs alleged that the airline forced passengers to pay an additional $80 “Exit Fee” before they were permitted to board their departing flights to Venezuela.

The plaintiffs filed suit against the airline alleging that the undisclosed fee constituted a breach of their contracts with the airline, formed when they purchased their tickets. The plaintiffs sought to represent a national class defined as “all persons that Avior charged an Exit Fee, from five years prior to the filing of the initial complaint through the earlier of: (i) the date, if any, Avior changes its contract to expressly include Exit Fees; and (ii) the date of class certification.”

The putative class action got off to a rough start, however. The district court dismissed the lawsuit finding that the Airline Deregulation Act preempted the breach of contract claims. According to the district court, the Act preempts all claims related to related to prices, routes, and services and the plaintiffs’ claims fell into the purview of the Act because it related to pricing.

The plaintiffs appealed the dismissal to the Eleventh Circuit, which disagreed with the district court on the issue of preemption. After examining the issue of jurisdiction and satisfying itself that it had jurisdiction to hear the appeal, the Court recounted the history of the Act. As the Court explained, Congress passed the Airline Deregulation Act in 1978 to eliminate regulation of air carrier prices. The Act includes a preemption provision, providing that “a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” Continue reading ›

Many people are familiar with insurance companies denying claims for a variety of reasons. Every dollar they use to repair or replace property is a dollar they can’t categorize as a profit or distribute to their executives as a bonus, so it’s common for insurance companies to try to find ways out of paying for claims. What is less common is to hear a claims adjuster say they don’t believe your story because your area is supposedly rife with fraud. That’s exactly what Darryl Williams, a former property owner on the South Side of Chicago, heard when he filed a claim for damage done to one of his apartment buildings when a pipe burst.

Williams is Black and the South Side of Chicago is a predominantly Black neighborhood, so since State Farm had no evidence of fraud, Williams felt he was being discriminated against as a Black man. He sued State Farm in Illinois for racial discrimination in 2019 and his attorney asked for the lawsuit to be tried as a class-action lawsuit, but the judge denied the request, saying the attorney’s analysis was not sufficient evidence that others had had experiences like Williams’s. Then Carla Campbell-Jackson, a former employee of State Farm, reached out to back up Williams’s allegations.

Campbell-Jackson had worked for State Farm for almost 30 years and loved her job until she was promoted to the special investigations unit (SIU), where claims adjusters sent potentially fraudulent claims to be more closely reviewed. Shortly after her promotion, Campbell-Jackson realized State Farm executives wanted SIU employees to meet with claims adjusters to encourage them to send more claims to be investigated by the SIU. The goal, according to Campbell-Jackson, was to deny as many claims as possible. She alleges investigators were told at weekly meetings to focus on claims from urban areas that were supposedly at a high risk for fraud, which would allegedly make those claims easier to deny. Campbell-Jackson alleges they would even circulate lists of supposedly “high-risk” areas. In her testimony, she said it was a way to deny millions of dollars in payments to African Americans and other minorities. Continue reading ›

Preemption is familiar battleground for class-action litigants prosecuting or defending product mislabeling claims concerning the labels of federally regulated products. Plaintiffs asserting state law mislabeling claims must contend with the fact that federal laws often expressly preempt state law claims out of a desire to prevent states from imposing requirements different from or stricter than those found in federal statutes or regulations.

Recently, the Ninth Circuit Court of Appeals analyzed the issue of federal preemption in a case involving the labeling of poultry products. In the case of Cohen v. ConAgra Brands, the plaintiff filed a putative class-action lawsuit alleging that that ConAgra’s “natural” and “preservative-free” claims on its frozen chicken product labels and website advertising were false and misleading under California state law.

In his complaint, the plaintiff alleged that ConAgra had been using synthetic ingredients in its products, despite claims to the contrary on its labels and website. This practice, the complaint alleged, ran afoul of California state law. A federal district court judge dismissed the case, holding that the plaintiff’s claims were preempted by the Poultry Products Inspection Act, which preempts state law claims challenging the Department of Agriculture’s application of federal labeling standards for poultry products. Specifically, the court held that the DOA’s Food Safety and Inspection Service had approved the very statements being challenged on ConAgra’s poultry labels and advertising. The plaintiff appealed the ruling to the Ninth Circuit Court of Appeals.

On appeal, the Ninth Circuit agreed with ConAgra that if the “evidence shows that ConAgra’s label was approved by [the Food Safety and Inspection Service], then plaintiff’s claims are preempted.” However, the Court noted that the record lacked any evidence regarding whether the ConAgra label at issue was actually reviewed and approved by the Food Safety and Inspection Service. Consequently, it remanded the claim for further development of the record on this point. Continue reading ›

Recently the U.S. Court of Appeals for the Seventh Circuit issued a much-anticipated decision in Cothron v. White Castle, concerning whether claims asserted under Sections 15(b) and 15(d) of the Illinois Biometric Information Protection Act (“BIPA”) accrue only once upon the initial collection or disclosure of biometric information or whether a new claim accrues each time biometric information is collected or disclosed. In lieu of answering the question, however, the Seventh Circuit punted the question to the Illinois Supreme Court at the plaintiff’s request.

The plaintiff, a manager at a White Castle restaurant, alleged that the restaurant chain introduced a system that required employees to scan their fingerprints to access pay stubs and work computers. The plaintiff alleged that each scan is sent to a third-party vendor that authenticates it and gives the employee access to the restaurant’s computer system. The plaintiff alleged that based on its use of that system, White Castle violated Sections 15(b) and 15(d) of the BIPA.

Under Section 15(b), a private entity may not “collect, capture, purchase, receive through trade, or otherwise obtain” a person’s biometric data without first providing notice to and receiving consent from the person. Under Section 15(d), a private entity may not “disclose, redisclose, or otherwise disseminate” biometric data without consent of the owner of the biometric data. The plaintiff brought suit not only individually but on behalf of a class of other White Castle employees.

White Castle defended against the lawsuit by seeking judgment on the pleadings. In support of its motion, the company argued that the claims were untimely since they accrued in 2008 when the plaintiff’s first fingerprint scan occurred after the BIPA came into effect. The plaintiff responded that every unauthorized collection or disclosure of biometric data constituted a separate violation of the statute, meaning a new claim accrued with each fingerprint scan. This meant, the plaintiff argued, that each scan started the clock on its own limitations period. The distinction is no small issue as the BIPA allows a successful plaintiff to recover the greater of actual damages or statutory damages of $1,000 for each negligent violation and $5,000 for each reckless or willful violation. The District Court ultimately denied White Castle’s motion but thought the issue important enough to warrant an interlocutory appeal. Continue reading ›

Federal law allows schools to collaborate on their formulas for determining the amount of financial aid to award students, but they are not allowed to consider an applicant’s need for aid when determining whether to accept their application to become a student. A recent class-action lawsuit against 16 major U.S. universities alleges that, not only were the universities collaborating on their financial aid formulas, but that they did so in order to fix their prices, and that their actions unfairly limited the financial aid students were able to receive. The federal lawsuit also alleges that the defendants do factor an applicant’s need for aid in their admissions decisions and is therefore claiming they should not be eligible for the antitrust exemption.

Not only did this allegedly cheat undergraduate applicants out of financial aid, but if the allegations are true, they also would have made it more difficult for underprivileged candidates to gain admission to the universities.

The lawsuit is seeking a permanent injunction against the schools’ ability to collaborate on financial aid formulas, as well as damages to five former students who attended some of the schools.

But the five named plaintiffs are just the tip of the iceberg. The financial aid lawsuit currently names 16 of the biggest universities in the U.S. as defendants, including Georgetown University, Northwestern University, and Yale University. With so many schools listed as defendants in the federal financial aid lawsuit, the attorneys representing the plaintiffs think more than 170,000 undergraduate students who received at least partial financial aid from those schools over the past 18 years could be eligible to participate in the federal class-action lawsuit. Continue reading ›

Recently, the Illinois Appellate Court for the First District issued a significant decision on the question of which statute of limitations govern claims for violations of the Illinois Biometric Information Privacy Act (“BIPA”). In its opinion, the Court ruled that claims for unlawful profiting from or disclosure of biometric data, those brought under sections section 15(c) and (d) of the BIPA, are subject to a one year limitations period while claims involving violations of the notice, consent and retention requirements, those brought under sections 15(a), (b), and (e) of the BIPA, are subject to a limitations period of five years. This decision should bring much needed clarity to class-action plaintiffs and defendants alike.

The BIPA, one of the most robust privacy statutes in the country, imposes various obligations on anyone that collects, stores or uses biometric identifiers such as fingerprints, retina or iris scans, voiceprints, or face geometry from Illinois residents. Failure to comply with the BIPA’s requirements can be costly as violations of the statute entitle successful plaintiffs to statutory damages ranging from $1,000 to $5,000 for each violation (plus attorney fees). This can add up quickly as claims for violations of the BIPA are frequently brought as a class action as we have seen in recent years.

The underlying case was brought by two former drivers for Black Horse Carriers, a trucking and logistics company. The plaintiffs filed the case as a class action. In their lawsuit, the former drivers alleged that Black Horse failed to obtain consent to use drivers’ fingerprints or to institute a retention schedule. They also accused the company of unlawfully disseminating their biometric data by sharing fingerprints with a third-party vendor that processed timekeeping records for the company. Continue reading ›

In a putative class-action lawsuit filed against Apple concerning alleged violations of the Illinois Biometric Information Privacy Act (BIPA), the parties disputed the scope of discovery to which the plaintiffs were entitled. The plaintiffs sought to compel Apple to produce certain identifying information for Illinois residents with Apple devices containing the Photos App. The plaintiffs also issued document subpoenas to major resellers of Apple products for the personal data of individual customers. The district court ultimately denied the request to compel and quashed the subpoenas, citing concerns about how personal information would be protected given the increase in cyber attacks and hacking incidents.

The suit centers on the Photo App contained on Apple devices that displays photos stored on the devices. According to the plaintiffs, the Photo App collects biometric identifiers and biometric information, including scans of facial geometry and related biometric information, of the individuals in the photos. Apple collects these biometric identifiers, the plaintiffs allege, without first notifying the individuals in writing and obtaining their informed consent. The plaintiffs further allege Apple possessed biometric identifiers and biometric information without creating and following a written, publicly available policy with retention schedules and destruction guidelines. According to the plaintiffs’ complaint, these actions violate the BIPA. Continue reading ›

In a class-action filed against Champion Petfoods alleging that the pet food company misrepresented the quality of its dog food and ingredients, the Seventh Circuit recently affirmed a grant of summary judgment in favor of Champion. In doing so, the Court reiterated to future litigants that “summary judgment is the proverbial put up or shut up moment in a lawsuit.” The lesson of the case for class-action plaintiffs is that evidence concerning the merits of the plaintiff’s case is just as important as evidence concerning class certification.

According to the plaintiff in the case, Champion advertised on its packaging that its dog food was “biologically appropriate” and made with “fresh regional ingredients” prepared in its “award-winning kitchens.” These claims were false and misleading, according to the plaintiff, because: (1) Champion uses frozen ingredients, regrinds refreshed ingredients, and includes ingredients that are past their expiration date; (2) the ingredients are sourced from all over the world; and (3) there is a risk that the dog food contains BPAs and pentobarbital.

Champion moved for summary judgment while the plaintiff moved for class certification. The District Court granted Champion’s motion on all counts. On appeal, the Court found that the plaintiff failed to present evidence to support his claims. The Court reminded the plaintiff of its oft-repeated refrain that at summary judgment the plaintiff “may not rest upon mere allegations” but must “go beyond the pleadings and support his contentions with proper documentary evidence.”

The plaintiff in the case relied almost entirely on his own testimony to oppose summary judgment. The Court found that this was insufficient to stave off summary judgment. Because the case was a deceptive advertising claim that did not involve patently misleading claims, the Court explained that the plaintiff had the burden of producing evidence to support the contention that the average consumer would be misled by the advertising. The plaintiff’s own testimony could not do this. The Court found of particular note that the plaintiff did not provide either consumer survey evidence or expert testimony to support his claims. Continue reading ›

It is not at all uncommon for a company to require individuals to agree to its Terms of Use when they sign up for an online service or when creating an account on a website or mobile app. It is also not uncommon for that service, website, or app to incorporate technology from multiple different providers. Such was the case in a case recently decided by the federal Seventh Circuit Court of Appeals. In its opinion, the Seventh Circuit rebuffed arguments by a technology company that it should be entitled to enforce certain arbitration provisions in a user agreement between OfferUp and its users.

Onfido owns and licenses the TruYou facial recognition software, which is marketed as software aimed at helping online resellers verify their identity. OfferUp, an online marketplace for buying and selling used items, uses the TruYou software in its mobile app to verify the identities of its users.

One of OfferUp’s users, Fredy Sosa, sued Onfido, alleging that its TruYou software violated the Illinois Biometric Information Privacy Act (BIPA). Sosa signed up to become a verified user on OfferUp’s mobile app. The identity verification process involved uploading photographs of his driver’s license and face. OfferUp’s verification process allegedly involved using Onfido’s TruYou software to extract and store biometric identifiers contained in the uploaded photos to verify that the face in the photograph matches the face on the driver’s license. Sosa subsequently filed a putative class action lawsuit against Onfido alleging that the company violated the BIPA by failing to provide him with a biometric data retention policy or to advising him whether and when it will permanently delete the biometric identifiers that it derived from his face. Sosa additionally alleged that Onfido violated the BIPA by failing to require him to sign a written release allowing it to “collect, use, or store his biometric identifiers derived from his face.”

After Onfido removed the case to an Illinois federal court, it sought to have the lawsuit dismissed and to compel arbitration of Sosa’s claims. The company relied on an arbitration provision in OfferUp’s Terms of Service which Sosa agreed to when signing up as a user of the OfferUp marketplace as the basis for seeking to compel arbitration of Sosa’s claims. The district court denied Onfido’s motion to stay Sosa’s complaint and compel individual arbitration, finding that Onfido cannot enforce the arbitration provision because it wasn’t a party to the agreement between OfferUp and its users. Continue reading ›

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