From the summary: “Judge throws out multibillion dollar suit arising from obscure CD-and-audiotape rental law, saying there’s no evidence anyone was actually harmed by Pandora’s integration with Facebook two years ago.”
The suit [by class action firm Edelson McGuire] claimed violations of an obscure pre-Internet era Michigan law, which says a company “renting or lending” sound recordings may not disclose details about customers’ transactions without their written permission. Because it specifies $5,000 penalty per violation, the possible damages could total in the tens of billions — far more than Pandora’s actual $1.8 billion market capitalization.
The judge, however, said the law did not create a right of action on behalf of unharmed consumers, and also was unpersuaded that the music-streaming service was “renting or lending” songs. [Declan McCullagh, CNet]
Class-action lawyers target L’Oreal’s Maybelline subsidiary. [WSJ Law Blog]
Relating to not counting class members until they’re hatched: “Lawyer: 4 — not 3,000 — interns have joined class action suit against Hearst” [Andrew Beaujon, Poynter; Joe Lustig with more on court's greenlighting of Hearst intern suit; more, Amy Traub and Desiree Busching at Wage Hour Law; lawyers trying similar action against Fox]
For many years, under a widespread interpretation of a 1974 Supreme Court case called Eisen v. Carlisle & Jacquelin, many courts believed that in deciding whether to certify a lawsuit as a class action they were not authorized to look ahead to the suit’s merits, even if the evidence at hand suggested those merits to be fatally flawed. In its landmark decision in Wal-Mart v. Dukes, however, the Court made clear that determining whether the prerequisites for class handling have been satisfied will frequently call on courts to consider and resolve questions that overlap the merits. But the exact application of Dukes has yet to be worked out, and lower courts are generating inconsistent results.
The Court has agreed to take up these questions again in a case called Comcast v. Behrend. The Third Circuit, considering an antitrust case challenging Comcast’s business practices in communities around Philadelphia as anticompetitive, upheld certification despite Comcast’s argument that some members of the plaintiff class could not have suffered injury; in particular, it rejected Comcast’s argument that the judge should subject the views of the plaintiff’s expert on damages to Daubert scrutiny to determine whether those views were based on principles accepted by the relevant scientific community.
Now the Cato Institute has filed an amicus brief (to quote my colleague Ilya Shapiro)
urging the Court to clarify that what it meant in Dukes was that a full inquiry into the reliability and admissibility of expert testimony (a so-called Daubert inquiry) is required at the class-certification stage. A lower standard would obviously prejudice defendants because class certification “magnifies and strengthens the number of unmeritorious claims” and creates “insurmountable pressure on defendants to settle.” But it would also prejudice absent class members because certification based on inadmissible evidence may distort their perception of the likelihood of success and encourage the members to stay in the class. Since all class members who don’t opt out of the class are ultimately bound by a class action judgment, there’s a large potential for harm to these potentially valid claims as well.
For more background on the facts and legal implications of Comcast v. Behrend, see the Philadelphia Inquirer’s coverage, Paul Karlsgodt, and Sean Wajert and, on the related case of Gates v. Rohm & Haas, Andrew Trask.
Privacy buffs usually prefer for business practices to be opt-in (consumers participate only if they affirmative choose to) rather than opt-out (consumers are bound unless they affirmatively choose to exclude themselves). Yet when it comes to filing class action lawsuits over consumer privacy, what do they think those same lawsuits wind up doing? [Eric Goldman via Andrew Trask]
It might be more accurate to identify the protagonist in this little tale as a class action law firm, rather than as a California “fan”:
Fred Weiss is the only plaintiff named in the class-action suit. In it, he claims he suffered “actual harm” because he was “subjected to the aggravation that necessarily accompanies the invasion of privacy caused by unsolicited text message calls, but also because consumers have to pay their cell phone service providers for the receipt of such wireless calls.” Weiss is bringing the suit under a federal law that prohibits unsolicited texts. …
The terms and conditions of the text program said the Pens would send no more than three messages per week for those who chose to subscribe. In his first week as a subscriber, Weiss claims the Pens sent him five texts. In the second week, Weiss says he got four.
The Edelson class-action firm of Chicago is one we have met before. [DeadSpin]
A Montana federal court dismisses a class action against author Greg Mortenson demanding reader refunds over alleged fabrications in his memoir Three Cups of Tea. [Volokh, earlier here, here, etc.] More: Trask.
Defendants in federal court in Montana are now seeking dismissal of a purported class action on behalf of readers disappointed by author Greg Mortenson’s exaggerations and embroiderings. As in the earlier (and successful) James Frey episode, lawyers are arguing that consumers should be awarded refunds for their purchases of the flawed memoir. [AP/Washington Post] Earlier here, etc.
The class action firm of Robbins Geller, representing some client or other, is demanding damages from Apple on behalf of a class of people disappointed by the iPhone 4S voice-activated assistant, Siri. Reviewers have complained that the program often fails to comprehend users’ speech, returns illogical answers, and when asked “Play some Coltrane,” has been known to respond that it doesn’t know any “coal train.” [Mat Honan, Gizmodo; Jason Gilbert/Huffington Post] “When asked her whether her makers exaggerated her worth, Siri told Law Blog, ‘We were talking about you, not me.’” [Joe Palazzolo/WSJ Law Blog]
Lawyers representing a White Lake, Mich. woman say that whether or not Ally Financial was within its rights to repossess her 2006 Pontiac, it was not entitled to the half-tank of gas it carried. They are asking class-action status on behalf of Michigan customers and seek $5 million. [Detroit News]
Lawyers have brought at least two class actions seeking to represent men who hoped pheromones in soap would attract women [Russell Jackson]
Merger announcements often trigger a spate of press releases announcing that securities plaintiff’s firms are “investigating” the situation. Even if the evidence of wrongdoing is absent and the financial analysis thin, lawsuits may be the next step, because that’s where the money is [David Nicklaus, St. Louis Post-Dispatch]
Northwestern U. lawprof Martin Redish, a well respected academic, has marshaled a careful argument that important elements of the modern American class action lawsuit are unconstitutional. So why, Mark Herrmann wants to know, have defense lawyers not yet taken the opportunity to bring Redish’s theories to judges’ attention in an actual case?