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February 28, 2017 Practice Points

Consumer Protection Issues to Watch in 2017

The aftermath of Spokeo plays out in the Third Circuit, while class ascertainability is on topic in the Ninth.

Angela Sabbe – February 28, 2017

In our January roundtable, I discussed key consumer protection issues to watch in 2017 with Paul Karlsgodt and Emily Kirk. This practice point summarizes two of the topics and cases discussed during the roundtable.

Spokeo Aftermath

In May 2016, the U.S. Supreme Court ruled that plaintiffs must suffer actual harm, and not merely identify a procedural violation, to bring a claim. The Court, however, did not specifically define harm, and lower courts are beginning to provide additional guidance regarding the standard that plaintiffs need to meet when proving harm. The lower courts have issued differing decisions thus far. Among the questions that remain unresolved is whether an invasion of a protected right constitutes “harm,” although the Court did indicate that the harm does not need to be “concrete” to be real.

In a recent ruling on the Horizon Healthcare Services Inc. Data Breach Litigation out of the Third Circuit, the court ruled that the class action could continue based on the plaintiffs’ alleged violations of the Fair Credit Reporting Act. The plaintiffs had alleged imminent and continuing risk of harm identity theft and/or fraud. In a contradictory ruling, the Seventh Circuit dismissed a class action against Time Warner Cable for storing former customers’ personal information. The Court ruled that while the plaintiffs’ had demonstrated that Time Warner violated the Cable Communications Policy Act, the plaintiffs had not proven harm, nor a risk of harm.

Class Ascertainability

In January 2017, the Ninth Circuit ruled in Briseno v. ConAgra that the unwritten and inferred requirement regarding ascertainability of a class is not a requirement of Rule 23, which explicitly requires adequacy, commonality, numerosity, and typicality. The court held that there is no prerequisite for plaintiffs to define an “administratively feasible” manner in which to identify plaintiffs. The Court did indicate that the defendants still had grounds for opposing certification of classes with serious difficulties to identifying class members. That opposition, however, will need to be raised using aspects of Rule 23, such as superiority.

The Briseno ruling contrasts an earlier ruling by the Third Circuit in Carrera v. Bayer Corp., which supported the requirement for ascertainability for class certification. In Carrera, the court held that the plaintiffs had not met the burden of proof that ascertainability of the class was administratively feasible, and vacated class certification. The plaintiffs had argued that class members, consumers who had purchased a certain over-the-counter product, could be identified through receipts and records of third-party stores, but had not proven that the third parties had retained records with enough detail to identify the purchaser, nor that they had ever existed.


Angela Sabbe  is an associate director with Navigant in Los Angeles, California.

Navigant Consulting is the Litigation Advisory Services Sponsor of the ABA Section of Litigation. This article should be not construed as an endorsement by the ABA or ABA Entities.

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