First Circuit Decisions

Supreme Court Declines to Take Up Circuit Split on Whether Courts May Grant Class Certification by Averaging Different Class Member Damages

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On April 29, 2024, the Supreme Court issued an Order List indicating that certiorari had been denied in Brinker International, Inc. v. Steinmetz, Docket No. 23-648.

The Eleventh Circuit Brinker Decision

Brinker was a July 2023 Eleventh Circuit decision affirming class certification and holding that class members’ exposure of their payment information to the dark web was sufficient harm to establish standing in a data breach case. The Eleventh Circuit set forth an expansive view of when data breaches can create Article III constitutional standing to support class action certification. The case arose from a 2018 attack on Chili’s restaurant computer systems, after which hackers posted stolen customer credit card data to an online marketplace for stolen information on the dark web. The Eleventh Circuit held that class members who alleged their credit card information was exposed for sale on the dark web had satisfied the “actual misuse” standard for sufficient

The Budget Saves Brandeis: An Update on COVID-19 Tuition Litigation

In Part 2 of our series on our Massachusetts and Boston-based COVID-19 tuition refund class action suits, we reviewed the legal backdrop of this wave of class action litigation and explored some common pitfalls in education-based claims, noting that even where cases are able to proceed based on adequate framing of the claims and underlying facts, many lose their steam when a university successfully argues for denial of plaintiffs’ attempts to pursue their cases as class actions. One example of a Boston-area case in which class certification that we discussed was the May 2023 denial in Omori v. Brandeis University, which was dismissed earlier this month for an entirely different reason. We discuss that below, along with a similar ruling in Rodrigues v. Boston College issued just days prior.

Immunity for Tuition Claims in the 2024 Budget

Despite the defeat of its attempt to certify the proposed class (as well as the First Circuit’s denial of plaintiffs’

Supreme Court Dismisses ADA Website Accessibility Class Action for Mootness, Vacates First Circuit Decision

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At the close of 2023, the Supreme Court dismissed the appeal of petitioner Acheson in Acheson Hotels, LLC v. Laufer as moot and vacated the underlying decision by the First Circuit that Laufer had constitutional standing to bring her ADA claims. The decision came as no surprise following the Justices’ sharp focus on mootness during oral argument in October. Our earlier posts provide coverage of that oral argument and the petition for appeal. At the time of oral argument, it was uncertain whether the Court would rest its decision concerning jurisdiction on mootness or standing. That question has now been resolved.

Laufer’s Unusual Controversy and Procedural History

The Court’s decision rested on the unique procedural posture of the case. Acheson filed its appeal following the First Circuit’s decision that Laufer demonstrated sufficient injury to have Article III standing to pursue her ADA claims against a hotel with alleged accessibility

Supreme Court Hears Oral Argument on Article III Standing of Testers to Bring ADA Website Accessibility Class Actions

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Earlier this week, the Supreme Court heard oral argument in Acheson Hotels, LLC v. Laufer, a case that we have summarized in prior blog posts.  Just months ago, there was doubt whether the Supreme Court would hear the case at all. While the Court granted Acheson Hotels’ petition for a writ of certiorari in March 2023, Laufer urged the Court to dismiss the case for mootness in July 2023 following the voluntary dismissal of her claims. Acheson Hotels opposed dismissal and urged the Court to hear its challenge to Laufer’s constitutional standing. The Supreme Court, in an unsigned, two-sentence order dated August 10, 2023, denied the request to dismiss the case as moot and stated it would consider mootness at oral argument in addition to the question presented. The parties and other interested non-parties briefed the matter, and the solicitor general was granted permission to participate in oral argument.

First Circuit Revives Data Breach Class Action Claims in Webb v. Injured Workers Pharmacy, LLC

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Courts and class action counsel have been considering what kinds of injuries can confer standing to pursue federal claims following the Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez, which held that the defendants’ alleged actions that “deprived [plaintiffs] of their right to receive information in the format required by statute” was not sufficient to establish a concrete injury necessary to bring a claim. Ever since the TransUnion decision, the question of what is sufficient injury has been reverberating throughout the lower courts and reaching federal courts of appeal.

The First Circuit has now confronted that question on multiple occasions, including its 2022 decision in Laufer v. Acheson (now on appeal to the Supreme Court) that held “dignitary harm” from discrimination was sufficient, along with allegations of “frustration and humiliation” to confer standing on a serial plaintiff who is a website accessibility tester. For more on Laufer,

Part 2 – Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Tuition Refund Class Actions

Part 2: The Legal Backdrop

In Part 1 of this series, we provided a brief overview and introduction of the Boston-based COVID-19 tuition refund class action cases, noting generally that most similar suits haven’t made it very far, as courts tend to rule early and often for the educational institution. Below is a brief discussion of some common pitfalls that have repeatedly plagued this type of litigation.

Framing the Case

One threshold hurdle is that COVID-19 tuition reimbursement cases against public colleges and universities are often dismissed in the earliest stages of litigation under sovereign immunity, leaving cases against private institutions with the most possibility for advancement. Even in those cases, however, courts often find that plaintiffs’ claims are not properly framed. For example, although some states permit claims for educational malpractice, plaintiffs often run into problems in attempting to establish a basis on which to evaluate the quality of services provided by the educational institution. To

Supreme Court Agrees to Hear Appeal from First Circuit of Website Accessibility Tester Case

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On March 27, 2023, the Supreme Court granted a petition for a writ of certiorari by Acheson Hotels in Acheson Hotels, LLC v. Deborah Laufer, Case No. 21-1410. In its petition to appeal from an earlier First Circuit decision analyzed in a prior post,  Acheson Hotels asks the Supreme Court to resolve the following question:

Does a self-appointed Americans with Disabilities Act “tester” have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?

In support of its petition, Acheson Hotels argued that the question was ripe for resolution by the Supreme Court based on the distinct divide among the circuit courts on the question presented and the errors it claims plagued the First Circuit’s decision.

The First Circuit’s Decision on Laufer’s Standing to Bring her Claim

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Slowing the Spread of Litigation: An Update on First Circuit COVID-19 Tuition Refund Class Actions

Part 1: Introduction and Overview

Earlier this month, Boston University prevailed in one of the few surviving Boston-based COVID-19 tuition refund class action suits. The U.S. District Court in Boston granted BU’s Motion for Summary Judgment finding that BU “did not make an open-ended promise to provide an ‘on-campus experience’ in exchange for a ‘semester cost.’” Unlike student-plaintiffs in other, largely unsuccessful COVID tuition refund litigation, the plaintiffs in this case made arguments based not on the difference in quality of in-person versus online education but rather based on their contracts with the university, which plaintiffs said constituted a “binding promise to provide students in-person instruction (or tuition refunds should in-person classes become unavailable), a promise on which students relied in prospectively paying their tuition.” Although the Court disagreed, Judge Richard Stearns, citing a still-live COVID tuition litigation case against Brandeis University, found that “BU must still provide restitution for the difference in value between what they were

District of Maine Applies the First Circuit’s Murray Decision to Approve Class Action Settlement

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In early 2023, the District of Maine was the first district court to apply and interpret a recent and notable First Circuit ruling that should be top-of-mind for class action attorneys and litigants seeking approval of settlements for cases brought on behalf of multiple plaintiff classes and including class representative incentive awards.

That notable First Circuit class action decision from December 2022 was Murray v. Grocery Delivery E-Services USA, Inc., 55 F.4th 340 (1st Cir. 2022), in which the appellate court considered a challenge to the approval of a class action settlement under Federal Rule 23(e).

The First Circuit Scrutinizes Multi-Class Settlements and Deepens the Circuit-Court Divide on Incentive Awards

In Murray, with a 31-page opinion written by Judge Kayatta, the First Circuit vacated the district court’s approval of the proposed settlement and remanded for further proceedings. The case is particularly noteworthy for its determination that members of different classes required separate

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