As we previously reported, the Magistrate Judge in In re: Capital One Customer Data Security Breach Litigation, found that a forensic report that Capital One had claimed was protected by the privilege and work product doctrines needed to be produced because Capital One had not met its burden under the dual-purpose doctrine to show that the report was protected. In re: Capital One Customer Data Sec. Breach Litig. (“Magistrate’s Order”). The forensic report at issue (the “Report”) related to a 2019 data breach where a hacker purportedly accessed and stole highly sensitive customer information from Capital One’s online cloud environment (the “Breach”). Capital One hired outside counsel to investigate the Breach and to help the company prepare for anticipated litigation and regulatory inquiries. To assist counsel’s investigation, outside counsel engaged a cybersecurity consultant (“Consultant”). As developed in the Magistrate’s Order, Capital One had used this same Consultant prior to the Breach in the normal course of its business.
Class Action
Price Gouging and Services: Third-Party Food Delivery Price Gouging?
As new restrictions addressing the economic impacts of COVID-19 continue to be proposed, some are targeting price increases for services. Businesses may want to re-familiarize themselves with the “services” covered by existing price gouging laws and pay close attention to developments, as they may cover unexpected areas.
Can You Sue for Price Gouging?
State Attorneys General are not the only ones enforcing price gouging laws in the current pandemic. Many states also provide a private right of action for victims of price gouging. Depending on the state, private litigants may seek injunctions, civil penalties, or even damages under state price gouging statutes and consumer protection laws. These remedies, and recent case filings, highlight the importance of price gouging compliance during this unprecedented global pandemic.
Jeep Drivers’ Claims Come to a Screeching Halt: Hypothetical Hacking Threat Does Not Confer Article III Standing
By Melissa D. DiGrande on
On March 27, 2020, a five-year legal battle between three certified classes of Jeep Cherokee drivers and Fiat Chrysler came to a sudden end, when a federal judge in the Southern District of Illinois held that allegations that the vehicles were vulnerable to cyber-attacks did not give plaintiffs standing to sue under Article III of the Constitution.
Ninth Circuit Decision Has Significant Implications for Terms and Conditions in Smartphone Apps
By Tara Brailey on
A recent Ninth Circuit decision centered on something most consumers use many times every day: smartphone apps.
In Wilson v. Huuuge, Inc., the Ninth Circuit affirmed the denial of defendant Huuuge’s motion to compel arbitration against a user of its smartphone casino app. Addressing a question of first impression, the Court considered the circumstances under which an app user who downloads or uses an app can be said to have constructive notice of the app’s terms and conditions. The Court ultimately held Huuuge failed to provide reasonable notice of its app’s Terms of Use, which included an embedded arbitration provision, and thus the app user was not bound to the terms.
Attacking Class Certification on a Motion to Dismiss? A Recent Decision Says There is a Way
By David Munkittrick, Owen Masters & Colin Kass on
Plaintiffs often try to define the broadest possible class at the outset of a case on the belief that the scope of the class can be refined on class certification after discovery has been completed. For this strategy to work, however, plaintiffs must get past the pleading stage. Historically, this…
Will Settling Class Actions Get More Difficult in 2019?
By Elisa M. Cariño on
Consumer advocates, defense attorneys, tort reformists, and trial judges are all eagerly awaiting a decision by the Ninth Circuit which all hope will clarify the process for certifying a nationwide settlement class in the Ninth Circuit. Specifically, an en banc Ninth Circuit panel will decide whether “variations in state law can defeat” predominance in class action litigation.
Coupon Settlements: Discount or Discontent?
By Zachary Klinger on
Congress passed the Class Action Fairness Act of 2005 (“CAFA”) with the hope of preventing abuse in class action lawsuits. CAFA assigns jurisdiction to federal courts over class actions where: (i) the aggregate amount in controversy exceeds five million dollars ($5,000,000); (ii) the class comprises at least 100 plaintiffs; and (iii) there is at least “minimal diversity” between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). In addition, CAFA mandates that courts apply greater scrutiny to class action settlements and, in particular, those involving coupons (i.e., vouchers or other non-cash disbursements which can be redeemed for (typically discounted) products or services).[1]