D. Mass

  • July 27, 2023

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

Appeals, Class Actions, First Circuit Decisions, Litigation, Privacy Class Actions, Standing, US District Court - Mass
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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,

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  • May 23, 2023

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

Class Action Litigation, Class Actions, Class Certifications, First Circuit Decisions, Litigation, Massachusetts Decisions, US District Court - Mass
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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

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  • November 16, 2022

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

Class Actions, Consumer Class Actions, First Circuit Decisions, Litigation, Privacy Class Actions, Standing, US District Court - Mass
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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

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  • December 11, 2019

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

Arbitration, Consumer Class Actions, US District Court - Mass
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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

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  • November 15, 2019

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

Arbitration, Consumer Class Actions, Privacy Class Actions, US District Court - Mass
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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

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  • August 20, 2019

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

Class Certifications, Class Representative, Consumer Class Actions, US District Court - Mass
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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

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  • August 06, 2019

The District of Massachusetts Declines to Strike FCRA Class Claims in McIntyre v. RentGrow, Inc.

Class Certifications, Consumer Class Actions, Fair Credit Reporting Act, Privacy Class Actions, US District Court - Mass
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In McIntyre v. RentGrow, Inc., No. 18-cv-12141-ADB, the District of Massachusetts recently denied a defendant’s motion to dismiss or to strike class claims in a putative Fair Credit Reporting Act (“FCRA”) action. The plaintiff’s complaint asserted FCRA claims on behalf of a nationwide class of tenants allegedly harmed by the defendant’s tenant screening reports that purportedly contained inaccurate and outdated eviction information.

The Court Declines to Dismiss or Strike FCRA Class Allegations

Under FCRA § 1681e(b), a defendant violates the Act if it reports inaccurate information about a consumer due to a failure to follow reasonable procedures to ensure accuracy, causing harm to the consumer. The complaint alleged that the defendant’s purchase of eviction information that was not updated, with knowledge of the errors, resulted in inaccurate screening reports that unfairly harmed thousands of tenants. The Court determined that the class claims in the complaint met the requirements of Rule

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  • May 20, 2019

Yan v. ReWalk Robotics, Ltd.: No Substitute for Standing in the District of Massachusetts

Class Representative, Lead Plaintiff, Securities Class Actions, Standing, US District Court - Mass
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On May 16, 2019, the District of Massachusetts denied a lead plaintiff’s motion to amend a complaint that sought to overcome standing deficiencies of the original class representative by adding a new named plaintiff. The Court dismissed the putative class action without prejudice, holding that if a class action has only one representative, and that party does not have standing, the Court lacks jurisdiction over the case and cannot permit the lead plaintiff substitution.

In Yan v. ReWalk Robotics, Ltd., lead plaintiff Wang Yan brought a putative class action for alleged violations of the Securities Act of 1933 and the Exchange Act of 1934 in connection with the company’s 2014 initial public offering. In a class action complaint filed in 2017, Yan claimed that ReWalk concealed material information in its IPO documents concerning a failure to comply with FDA regulations and continued to make materially false statements after the IPO. In August 2018, the Court granted the

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