First Circuit

  • September 08, 2023

New England Cybersecurity and Data Privacy Class Action Filings Soar in 2023

Class Action Litigation, Class Actions, Privacy Class Actions, Standing
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Earlier in 2023, we launched our New England and First Circuit Class Action Tracker, as a tool to analyze class action litigation trends in Massachusetts, Maine, New Hampshire, and Rhode Island. In July, we updated our tracker to include data through the second quarter of 2023. A review of new filings submitted during that latest quarter reinforces the trends that we recently observed in our client alert on the enforcement of U.S. Consumer Data Privacy laws through private litigation. Namely, we are seeing record-high levels of data privacy and cybersecurity class action filings, particularly in Massachusetts courts, in the first half of 2023.

Data privacy and cybersecurity class action suits continue to represent the largest share of annual class action filings in New England to date. Although the healthcare sector continues to represent the largest share of defendants, other sectors, such as tech, retail and manufacturing, and financial and professional services industries are also experiencing high rates of cybersecurity and data

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  • 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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  • May 18, 2023

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

Appeals, Class Action Litigation, Class Actions, Consumer Class Actions, First Circuit Decisions, Litigation, Standing, Supreme Court, US District Court - Maine
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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

In

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  • April 28, 2023

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

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

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  • April 27, 2023

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

Appeals, Class Action Settlements, Class Actions, Class Certifications, Class Representative, Employment Class Actions, First Circuit Decisions, Lead Plaintiff, Litigation, US District Court - Maine
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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

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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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  • October 27, 2022

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

Appeals, Class Actions, Consumer Class Actions, Employment Class Actions, Fair Credit Reporting Act, First Circuit Decisions, Jurisdiction, Litigation, Standing, Supreme Court, US District Court - Maine
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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

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  • April 03, 2020

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

Class Actions, First Circuit Decisions, Privacy Class Actions
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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

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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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