18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 523 would require receiving evidence as to whether each user read or was made aware of the pertinent provisions in the Terms of Use, how each user subjectively understood those provisions, and whether that understanding influenced each user’s decision to leave fiat currency or bitcoins deposited with Mt. Gox. For these reasons, the Court denied Plaintiff’s motion for class certification. In Re Oil Spill By The Oil Rig "Deepwater Horizon" In The Gulf Of Mexico , 2021 U.S. Dist. LEXIS 54360 (E.D. La. March 23, 2021). Following settlement approval of class action claims related to an oil spill in the Gulf of Mexico, a class member, Christopher Green, who failed to opt-out of the settlement, filed a lawsuit alleging fraud in the distribution of the settlement shares. Defendants moved to dismiss the claim due to the settlement bar. The Court denied Green’s request to excuse the failure to opt-out and dismissed his claim. Green was allegedly injured while removing oil from the Gulf of Mexico after the Deepwater Horizon oil spill in 2010 and joined the litigation in a class of personal-injury Plaintiffs. The parties entered into the Medical Settlement Agreement, pursuant to which Defendant agreed to provide class members with compensation, including payment for injuries and the right to ongoing medical consultation and treatment. Plaintiff asserted that he was "the unrecognized and de jure co-owner of many businesses located on the Gulf Coast and elsewhere," and that he "was and continues to be the victim of fraud, misappropriation of trade secrets, etc., regarding many businesses that will receive payment through these proceedings." Id . at *6. Defendant filed a motion to dismiss for lack of standing pursuant to Rule 12(b)(1). The Court granted the motion. It explained that when pleading fraud, "a party must state with particularity the circumstances constituting fraud or mistake." Id . The Court found that Plaintiff’s complaint lacked any particularity, as he failed to specify the statements that he contended were fraudulent, identify the speaker, state when the statements were made, or why the statements were fraudulent. Id. at *7. For these reasons, the Court granted Defendant’s motion to dismiss. Kang, et al. v. P.F. Chang ’ s China Bistro, Inc., 2021 U.S. App. LEXIS 3563 (9th Cir. Feb. 9, 2021). Plaintiff, a purchaser of food from Defendant’s Chinese restaurant chain, filed a putative class action alleging that Defendant violated the California Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. Defendant used the phrase “krab mix” in its list of menu ingredients for certain sushi rolls that actually did not contain any real crab meat. Id. at *1. According to Plaintiff, Defendant’s use of the phrase “krab mix” on the menu was likely to deceive consumers into thinking the sushi rolls contain actual crab meat. Defendant filed a motion to dismiss on the grounds that its menus were not publicly disseminated announcements and that Plaintiff failed to state a plausible claim for relief. The District Court granted Defendant’s motion. It found that Plaintiff did not sufficiently demonstrate that Defendant publicly stated that its sushi rolls containing “krab mix” were filled with actual crab meat. On appeal, the Ninth Circuit reversed the District Court’s order. In addressing Plaintiff’s appeal, the Ninth Circuit noted that it agreed with Defendant “that reasonable consumers confronted with the fanciful spelling of ‘krab’ on the menu would not assume they were purchasing a sushi roll with 100% real crab meat.” Id. at *2. However, the Ninth Circuit found that such a spelling would suggest to a reasonable consumer that the menu item contains at least some real crab meat since “the term ‘krab mix’ lacks any commonly understood contrary meaning.” Id. The Ninth Circuit also rejected the District Court’s finding that the relative prices of the sushi rolls prevented a reasonable consumer from assuming they contained some real crab meat since such an issue could not be resolved at the motion to dismiss stage. Id. at *3. Defendant argued that reasonable consumers would not be misled by the term “krab mix” because other menu items included the word “crab” in their list of ingredients. Id . The Ninth Circuit declined to accept this argument because it could not assume that reasonable consumers consistently look past the term “krab mix” to notice that other menu items contain the word “crab.” Id. at *4. Accordingly, the Ninth Circuit reversed the District Court’s order and remanded for further proceedings. Mier, et al. v. CVS Pharmacy, 2021 U.S. Dist. LEXIS 150423 (C.D. Cal. April 29, 2021). Plaintiffs filed a class action alleging that Defendants’ Advanced Formula Hand Sanitizer misled consumers by representing that it kills 99.99% of germs. Plaintiffs filed a motion for class certification pursuant to Rule 23, and the Court granted the motion. Plaintiffs sought certification of a class consisting of all persons residing in the State of California who purchased CVS brand hand-sanitizer during the class period. The Court found that the class was sufficiently numerous as it sold the hand sanitizer at over 40 stores. Defendants did not challenge Plaintiffs’ fulfillment of the commonality requirement, but argued that Plaintiffs could not meet the higher predominance standard of Rule 23(b)(3). Defendant argued that Plaintiffs were not typical to the class they wished to represent because they did