litigation

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

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

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

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