Duane Morris Class Action Review - 2023 - Report - Page 120
establish that they suffered injuries . . . caused by Valve’s conduct.” Id. Hence, the court
found the plaintiffs could not establish the defendant’s in-game purchasing feature, the
allegedly deceptive practice, caused them to sustain an injury where the putative class
never actually saw the features themselves. Id. at 1233–34. Because the putative class
never saw or read any representations by the defendant concerning the games at issue
or the games’ purchasing features, the class could not have been injured by these
allegedly deceptive representations. Id. at 1234. The court likewise determined the
putative class could not prove causation based on an omission theory, or that the
defendant injured them by concealing the harms and risks of engaging with the in-game
purchasing features. Id. Since the putative class of parents never visited the defendant’s
websites nor played the video games at issue, the court found no reasonable fact-finder
could determine that the parents’ decisions to give their child money for these features
would have been affected by additional information online and in the games. Id. at 1235.
Because the court granted the defendant’s motion for summary judgment, it denied the
putative class’s motion for certification as moot. Id.
Issues of Article III standing were also analyzed by the First Circuit in In Re Evenflo Co.,
2022 U.S. App. LEXIS 32497 (1st Cir. Nov. 23, 2022). The district court dismissed the
plaintiff’s class complaint that alleged defendant Evenflo misrepresented the safety of its
product - children’s’ booster seats - and the putative class relied on this safety
representation when purchasing the booster seats. Id. at *3. The district court found the
putative class lacked standing because the complaint never averred the booster seats
failed to perform in any way nor that the seats were worth less than Evenflo charged for
them despite the class’s allegation they “would have paid less for [the seats], and/or
would have bought a safer alternative.” Id. at *1-3. On appeal, the First Circuit combined
these alleged harms - higher purchase price and lower safety - into one entitled
“overpayment.” Id. at 1. In its standing analysis, the First Circuit held an overpayment
injury of this kind was sufficient to allege Article III standing. Id. at *2. Evenflo argued
that a class member’s overpayment could not be a legally cognizable injury because the
class members never alleged that Evenflo’s safety misrepresentations caused any
physical or emotional injury. Id. at *4. The First Circuit disagreed with Evenflo’s position
that in order to pursue a claim for damages, the plaintiff’s Article III injury must have
been physical or emotional. Id. at *4. Instead, it held an allegation that a defendant’s
misrepresentation caused plaintiffs to suffer monetary losses by forcing them to overpay
for the defendant’s product, constituted an injury under Article III. Id. at *6. At this stage
of the action, the First Circuit determined it was reasonably inferable that if Evenflo had
not marketed its booster seats as safe for small children, the seats would have
commanded lower prices. Id. at *8.
The overpayment theory of standing in Evenflo had significant support from the Second,
Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits, which had all
previously held that monetary harms such as the alleged overpayment for the seats by
class members was a real, concrete injury under Article III. Id. at *5–7. The First
Circuit’s decision in Evenflo had the effect of reviving the multi-district class claims
against the defendant and beyond the putative class, it made clear that Article III
standing analysis would not close courthouse doors to plaintiffs asserting monetary
injuries.
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Duane Morris Class Action Review – 2023
