Duane Morris Class Action Review - 2023 - Report - Page 266
establish an injury sufficient to confer standing. For these reasons, the court held that
an injury will not be found with sparse facts to support claims of harm or injury.
In Sorkin, et al. v. Target Corp., Case No. 21-CV-3546 (N.D. Ill. June 2, 2022), the court
examined when standing is measured. The plaintiff alleged that the defendant
mislabeled products as “oil-free” when they in fact contained oil, and filed a class action
for common law fraud, unjust enrichment, breach of warranties, and violation of various
states’ consumer fraud statutes. The defendant filed a Rule 12(c) motion for judgment
on the pleadings, asserting that the plaintiff lacked standing. The court granted the
motion in part. The court agreed with the defendant that the plaintiff lacked standing to
pursue claims for products he had not purchased. The court also determined that the
plaintiff could not establish standing by buying the other products not previously
purchased after-the-fact. The court reasoned that standing must be present when the
lawsuit was filed. The court opined that of the products not personally purchased, the
plaintiff had no personal stake in the outcome of the claims because he could not allege
that he suffered any injury with respect to the products. Accordingly, the court granted in
part the defendant’s motion for judgmenton the pleadings.
In Kellman, et al. v. Spokeo, 2022 U.S. Dist. LEXIS 71985 (N.D. Cal. Apr. 19, 2022), the
court showed a willingness to find harm based on allegations of a misappropriation of
personal information. The plaintiffs alleged that the defendant’s website provided user
profiles with redacted information that violated their rights of publicity by
misappropriating their names and likenesses in violation of several state laws. The
defendant filed a motion to dismiss pursuant to Rule 12(b)(1), arguing that the plaintiffs
lacked Article III standing because they could not show cognizable injury. The court
denied the motion. It determined that that plaintiffs’ allegations were sufficiently concrete
to confer standing. The court ruled that misappropriating names, likenesses, and
personas was a common law harm that is codified in several states. For these reasons,
the court denied the defendant’s motion to dismiss.
In contrast, in Jones, et al. v. Lubrizol Advanced Materials, Inc., 2022 U.S. Dist. LEXIS
18322 (N.D. Ohio Feb. 1, 2022), the court held that prospective future harm did not
meet the standing requirements to secure class certification. In Jones, the plaintiffs, a
group of homeowners, filed a class action against manufacturers of chlorinated polyvinyl
chloride pipes called “FlowGuard Gold,” alleging that it pipes were defective. They
asserted claims of product liability, warranty, fraud, and consumer protection. The
defendants moved to dismiss for failure to state a claim under Rule 12(b)(6), and the
court granted the motion in part. Subsequently, the defendants filed a motion to strike
the class allegations in the complaint pursuant to Rule 12(f). The court found that,
because defendants previously had moved to dismiss under Rule 12(b)(6), a motion to
strike under Rule 12(f) was procedurally incorrect. The court reasoned that the proper
mechanism for striking class allegations would be a motion filed pursuant to Rule
23(d)(1)(D). Evaluating the class claims under Rule 23(d)(1)(D), the court opined that
since the plaintiffs’ claims were rooting in a risk of future harm, rather than in harm
already manifested, the plaintiffs would not be able to carry their burden under Rule 23
of establishing that class certification would be appropriate. For these reasons, the court
granted defendants’ motion to strike.
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Duane Morris Class Action Review – 2023
