Peter Espey (Of Counsel-Madison, NJ) and Brianna Cyr (Associate-Madison, NJ) successfully defended their client, a car dealership, in a putative class action.

The plaintiff alleged, on behalf of herself and others similarly situated, that the dealership was overcharging its customers for registration fees. She also brought individual claims related to alleged malfunctions in the vehicle she purchased. The plaintiff had signed an agreement to arbitrate and a waiver of the right to bring a class action when she bought the vehicle. In lieu of an answer, a motion to dismiss was filed.

The plaintiff vigorously opposed the motion.  She argued the arbitration agreement was invalid because it allegedly impaired her statutory rights and precluded her from bringing a class action. Peter and Brianna filed a reply, and Peter argued the motion to dismiss. The Wilson Elser team maintained that the arbitration clause was unambiguous and easily located, rather than buried in the fine print. We also argued that the plaintiff's claims lacked merit, since she was charged the exact amount set by the State.

The Court agreed that the arbitration agreement and class action waiver were enforceable and concurred with Peter and Brianna’s arguments highlighting the strong public policy favoring arbitration. The plaintiff had a duty to read the contract she signed, and the statutes and case law required enforcement of the arbitration clause and class action waiver. The case was dismissed in favor of arbitration. This dismissal also means that the plaintiff cannot pursue her proposed class action.
 

Anjali Das (Partner-Chicago, IL), Brian Myers (Of Counsel-Washington, DC) and Tommy Spitaletto (Partner-Dallas, TX) obtained dismissal of a data breach class action filed against a mental health care provider in the Western District of Texas. The lawsuit arose out of a cyber-attack that involved personal information that included sensitive information such as health information and Social Security numbers. In support of our client’s motion to dismiss, Wilson Elser argued that the plaintiff lacked Article III standing to sue because she failed to allege any injury-in-fact in the form of identity theft fraud, or misappropriation as a result of the breach. Instead, the plaintiff alleged that her harm consisted of (1) lost time and out-of-pocket expenses spent dealing with the data breach; (2) diminished value of her personal, health and financial information; (3) anxiety; (4) violation of privacy rights; (5) loss of the benefit of the bargain made with our client and overpayment for services intended to include data security; and (6) increased risk of future fraud and identity theft. The District Court agreed with Wilson Elser’s position that the plaintiff lacked standing to bring suit and dismissed the case on the basis that the plaintiff failed to allege any actual injury in the form of identity theft, financial fraud or misuse of personal information that could be traced to the cyber incident.

Benjamin Greenfield (Partner-Philadelphia, PA) and New York City partners Joshua Cash and Larry Lum succeeded in convincing the Kings County Supreme Court, Civil Term, to grant their pre-answer motion on behalf of the largest casino operator in New York City, to dismiss plaintiff’s claims in their entirety, including the dismissal of plaintiff’s individual and putative class action claims. Essentially, plaintiff, by and through her counsel, set forth conspiratorial claims that the casino is engaged in a deceptive practice to deprive patrons of their loose change. The plaintiff alleges that after receiving her cash-out voucher from the machine at the casino, she was only paid out the amount in whole dollars, and was not paid the full balance due, including the cents. The plaintiff sought to represent a class of all casino customers who were similarly deprived of their loose change. Notably, plaintiff’s counsel appeared to be taking the lead from similar attempted class actions claims sought to be certified against at least two other casinos in other jurisdictions around the country. Ben, Joshua and Larry obtained dismissal of the multiple causes of action set forth in plaintiff’s complaint, including violation of New York Business Law §§ 349 and 350, Breach of Contract, Conversion and Unjust Enrichment, and relied successfully on affidavits from casino personnel and photographic evidence that demonstrated conclusively there was nothing misleading about the defendant’s practices and that any forfeiture of such change was plaintiff’s own deliberate choice. The court also was convinced to dismiss plaintiff’s proposed class action claims insofar as the class definition was overbroad, sought to certify what was effectively a sham proceeding (the court specifically referenced within its 15-page decision the adage that “the law does not concern itself with trifles”), and would not be composed of persons with identical interests.  

​Jeremy Stephenson (Of Counsel-Charlotte) secured a reversal in the North Carolina Supreme Court of the trial court’s class certification made in a consumer fraud case against Wilson Elser’s client, an auto dealership event promoter. The plaintiffs claim to have received a promotional mailing from a car dealership that was allegedly deceptive and misled recipients into believing they had won a car or a significant cash award. The trial court issued a class certification order, and the plaintiffs brought a class action complaint against our client, the dealership and other parties connected to the sales promotion. Jeremy argued that the trial court’s certification order failed to comply with many aspects of the multi-step certification criteria. The Supreme Court found the certification order internally inconsistent regarding class definitions and vacated the order. “Specifically, the trial court’s order used one class definition to analyze the certification criteria, then changed the definition when actually certifying the class.” The rare, published opinion, a significant victory for businesses and civil defendants, looks at issues created by what the Supreme Court deemed “the mismatch in class definitions” in this matter, such as potential conflicts of interest and potential inefficiencies in the class. Diandria Rabsatt (Paralegal-Charlotte) assisted on the case.​