Melanie A. Conroy

District of Massachusetts Dismisses Data Breach Class Action for Lack of Injury

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On October 18, 2022, in Webb v. Injured Workers Pharmacy, LLC, the District of Massachusetts dismissed a class action complaint brought by former pharmacy patients alleging that their sensitive personal information had been exposed in a data breach affecting more than 75,000 customers. In its analysis, the court determined that the named plaintiffs and putative class members could not satisfy the injury-in-fact requirement for constitutional standing. Plaintiffs Webb and Charley had claimed the breach caused “anxiety, sleep disruption, stress, and fear” and cost them “considerable time and effort” monitoring their accounts.

The court rejected these factual allegations as an insufficient basis to confer constitutional standing under Article III:

The Complaint does not sufficiently allege that the breach caused any identifiable harm. It is only alleged that Webb and Charley spent “considerable time and effort” monitoring their accounts and, in Webb’s case, dealing with the IRS. Plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based

First Circuit Court of Appeals Rules Website Tester Has Standing for ‘Informational Injury’, Deepens Circuit Divide

On October 5, 2022, in Laufer v. Acheson Hotels LLC, the U.S Court of Appeals for the First Circuit reversed a lower court’s dismissal of a suit against Acheson Hotels, LLC, which operates an inn on Maine’s southern coast. With this reversal, the First Circuit has addressed a matter of first impression and deepened a circuit split on when, following the Supreme Court’s ruling in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), a plaintiff can sustain a suit based on an informational injury. In TransUnion, the Supreme Court distilled its precedent on constitutional standing into five words: “No concrete harm, no standing.” In this recent decision, the First Circuit determined the plaintiff had established both.

The Lower Court Dismissal for Lack of Standing

In her complaint, Deborah Laufer alleges that when she visited the inn’s website, it didn’t identify accessible rooms, provide an option for

Massachusetts Supreme Judicial Court Reverses Denial of Motion to Compel Arbitration, Holds Grubhub Drivers Must Arbitrate Employment Claims

On July 27, 2022, in Archer v. Grubhub, the Massachusetts Supreme Judicial Court considered whether Grubhub delivery drivers within the Commonwealth are exempt from arbitration under Section 1 of the Federal Arbitration Act (FAA). FAA Section 1 exempts “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The SJC joined numerous other courts in determining such drivers are not a class of transportation workers exempt from the FAA and that the electronic arbitration agreements with class action waivers among the drivers and Grubhub are binding. The ruling reversed the Superior Court judge’s denial of Grubhub’s motion to compel arbitration.

Section 1 of the FAA Does Not Exempt Grubhub Drivers

At the heart of the case was an electronic agreement among the plaintiff drivers and Grubhub that was executed through an online portal through which the plaintiffs had to activate a hyperlink titled “Arbitration Agreement” with an option to view the text of the

Supreme Court Addresses Concrete Harm, Limits Standing in FCRA Class Action

On June 25, 2021, the Supreme Court issued its much-anticipated 5-4 ruling in TransUnion LLC v. Ramirez. In a 27-page decision by Justice Kavanaugh, the Court reversed the Ninth Circuit’s decision upholding the certification of a class of 8,185 consumers whom the credit reporting agency TransUnion had  mistakenly labeled as potential terrorists and drug traffickers. Of this consumer class, only 1,853 class members’ misleading credit reports had been provided to third-parties. The District Court had ruled that all class members had Article III standing to pursue their Fair Credit Reporting Act (FCRA) claims against TransUnion to recover statutory damages. A federal jury awarded the class $8.1 million in statutory damages and $52 million in punitive damages. On appeal, TransUnion challenged the award on the basis that the entire class lacked constitutional standing to recover. A divided panel of the Ninth Circuit affirmed in part.

The Court’s Decision

Taking up the question, the Court clarified its prior holdings concerning the

Navigating the Tuition Refund Class Action

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One fallout of the Coronavirus pandemic is a national wave of class action lawsuits against universities, including some schools located in New England. To read more about the cases and our thoughts about the universities’ defenses, please see this client alert we published today.

First Circuit Holds That College Does Not Owe Fiduciary Duties to Students, Rejects Data Privacy Class Action Claims

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On March 25, 2020, the First Circuit Court of Appeals in Squeri v. Mount Ida College upheld the lower court’s dismissal of prospective and former Mount Ida College students’ claims against the college and its Board of Trustees arising from the college’s abrupt closure and sale of its campus to UMass Amherst in May 2018. No. 19-1624, 2020 WL 1445400 (1st Cir. Mar. 25, 2020). On appeal, the student plaintiffs urged the First Circuit to dramatically expand students’ ability to sue colleges under Massachusetts law, opening the door to new litigation risks for academic institutions. The First Circuit declined this invitation, noting that Massachusetts law does not allow for the broader theories of liability they sought to assert.

The students’ allegations against Mount Ida and the lower court’s dismissal of their claims

The students’ class action claims arose out of the college’s abrupt and permanent closure after six weeks’ notice to students that they would need to continue their studies

District Of Massachusetts Holds That Consumers With No Arbitration Agreement Must Arbitrate Their “Closely Intertwined” Class Action Claims

It is a legal maxim that arbitration is a creature of contract. A recent District of Massachusetts decision explores critical questions about when that creature can exist outside of the confines of a binding agreement to arbitrate among the parties.

The November 27, 2019 decision by Senior U.S. District Judge George A. O’Toole ordered that plaintiff fantasy sports players were obligated to arbitrate their class action claims against DraftKings, Fan Duel, and their payment processing companies. The claims referred to arbitration included not only those brought by players with arbitration agreements with DraftKings and Fan Duel, but claims by players with no contractual relationship with the defendant on the basis that their claims were closely “intertwined” with claims subject to arbitration. However, the Court drew a line at family members of players, determining that they had not reaped any benefit from a contract with an arbitration agreement, and thus could not be compelled to arbitrate. Judge O’Toole also declined to hear challenges

The District of Massachusetts Orders that Comcast Subscribers Must Individually Arbitrate Privacy Class Action Claims

On November 4, 2019, in Wainblat v. Comcast Cable Communications, LLC, et. al., No. 19-cv-10976, the District of Massachusetts ordered that a consumer privacy class action against Comcast must be arbitrated on an individual basis because the claims are subject to a valid and enforceable arbitration provision. Against a backdrop of rapidly expanding consumer class action litigation, especially based on consumer privacy laws with statutory damages, the case is an important reminder that arbitration provisions in customer agreements offer robust and critical protections for businesses.

Wainblat’s Consumer Privacy Class Action Claims against Comcast

In a class action complaint filed on April 25, 2019, plaintiff Wainblat asserted claims on behalf of all Massachusetts Comcast subscribers under the Cable Privacy Act, 47 U.S.C. § 55l(a)(l), and the Massachusetts consumer protection statute, M.G.L. c. 93A § 9 (“Chapter 93A”). The plaintiff alleged that Comcast “systematically violates cable television subscribers’ federal statutory privacy rights

Despite Holding the TCPA’s Government Debt Exemption is Unconstitutional, the District of Massachusetts Permits Class Claims to Move Forward

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On September 24, 2019, the District of Massachusetts held in Katz v. Liberty Power Corp., LLC that the government debt collection exemption to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227 et seq., is an unconstitutional violation of the First Amendment. No. 18-cv-10506-ADB, 2019 WL 4645524 (D. Mass. Sept. 24, 2019). Following the U.S. Circuit Courts for the Fourth and Ninth Circuits, Judge Burroughs concluded that the exemption to the statute could not survive constitutional scrutiny, but otherwise permitted the plaintiffs’ TCPA class action claims, which did not implicate the exemption, to go forward.

Defendants Sought Dismissal of the TCPA Class Claims by Challenging the Constitutionality of the Government Debt Exemption

In their class action complaint, the plaintiffs alleged that Liberty Power Corp., LLC and its holding company (“Liberty Power”) placed prohibited pre-recorded calls to cell phones in disregard of the national Do Not Call Registry and specific do-not-call

Even With Common Questions, Chapter 93A Deceptive Marketing Claims Are Ill-Suited for Class Treatment

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Earlier this month, in Plastic Surgery Associates, SC v. Cynosure, Inc., United States District Judge Denise Casper denied plaintiffs’ motion for class certification and allowed Cynosure’s motion for summary judgment on claims arising from the marketing of a medical device intended to reduce body fat. The decision provides a searching and instructive analysis of the standards for class certification under Fed. R. Civ. P. 23, particularly for claims under Massachusetts’s consumer protection law, Mass Gen. L. c. 93A (“Chapter 93A”).

In Cynosure, plaintiffs purported to represent a class of all U.S.-based purchasers and lessees of the same medical device over a four-year period. Over 1,400 customers, mostly plastic surgeons and medical spas, had purchased the device for approximately $165,000 each. Plaintiffs each claimed they were harmed by the alleged deceptive marketing of the devices. Invoking Rule 23(c)(4), plaintiffs asked the Court to certify four issues for their Chapter 93A claim, including whether Cynosure