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Equipment Failure: Eastern District of Pennsylvania Denies Certification to TCPA Class Involving Unsolicited Faxes Because TCPA Applies Only to Standalone Fax Machines

On July 28, 2025

In Fischbein v. IQVIA, Inc., a case involving alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C), a federal district court in the Eastern District of Pennsylvania denied plaintiff Richard E. Fischbein, M.D.’s motion for class certification after he failed to meet his burden on both ascertainability and predominance requirements. Fischbein’s class action suit alleged that the defendant, IQVIA, Inc., a research organization in the health information industry, sent unsolicited fax advertisements to Fischbein and more than 25,000 other healthcare professionals that invited them to share information about their patients and treatment practices in exchange for points that could be redeemed for rewards. IQVIA argued that the proposed class was not ascertainable, because there was no reliable and administratively feasible mechanism to determine whether putative class members received the faxes at issue on traditional, standalone fax machines or through online fax services. Fischbein, however, argued that the TCPA applies to all faxes, no matter how received. The court held that the plain language of the TCPA – which prohibits the use of “‘any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement’” – clearly distinguished between the type of equipment used to send the unsolicited advertisement and the type of equipment that receives...

Sixth Circuit Vacates Certification of a Sprawling Multistate Class of GM Vehicle Owners Alleging Transmission Defects

by Michael R. McDonald

Posted in Class Action

On July 16, 2025

In Speerly v. GM, LLC , the Sixth Circuit en banc reversed a district court’s order certifying a class and multiple subclasses to assert various state law claims alleging defects in GM’s Hydra-Matic 8-Speed Transmission in vehicle models sold between 2015 and 2019 — in all, 26 state-wide subclasses with a total of 59 state-law claims on behalf of roughly 800,000 individual car buyers. The class had identified two problems with the transmission: (i) the transmission fluid absorbed moisture, changing its viscosity and causing gear shift slippage; and (ii) the transmission control module caused vehicles to lunge forward or “shudder.” Before addressing the substantive elements of each cause of action, the court explained that the district court must “answer merits questions that bear on Rule 23’s demands.” The Rule 23 analysis “will inevitably address issues that overlap with the merits inquiry” because the “element-by-element, claim-by-claim inquiry” required for the commonality and predominance inquiry “implicates the merits of each claim.” Therefore, the Panel noted that the “district court, as a result, must not defer merits questions bearing on commonality and predominance until summary judgment.” Regarding the commonality requirement, the Sixth Circuit explained that under Wal-Mart Stores, Inc. v. Dukes, a common question must resolve an issue that is “central” to the validity of each claim, and...

U.S. Supreme Court Eliminates Heightened Standard for Reverse Discrimination Claims

by Zachary Posess

Posted in Discrimination

On June 18, 2025

On June 5, 2025, the U.S. Supreme Court issued a unanimous decision that places reverse discrimination claims on equal footing with traditional discrimination claims under federal law. Ames v. Ohio Department of Youth Services, 605 U.S. ___ (2025). The plaintiff, a heterosexual woman, claimed her employer denied her a promotion and demoted her on the basis of her sexual orientation. The Sixth Circuit dismissed her claims, finding she had failed to surpass the additional hurdle required in reverse discrimination claims to identify “background circumstances” demonstrating the Ohio Department of Youth Services was the “unusual employer” that discriminates against members of a majority group. The Supreme Court rejected the “background circumstances” test, which had been adopted by five lower Circuits, and held that majority-group members cannot be subject to a heightened burden of proof because the text of Title VII makes no such distinction. Now, federal judges and agencies can no longer assume that historically disadvantaged groups are more likely to be subject to discrimination in the workplace. Justice Ketanji Brown Jackson wrote: “By establishing the same protections for every ‘individual’—without regard to that individual’s membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.” The full decision is available here. Moving forward, we expect that...

DNJ Court Denies Motion to Amend Invalidity and Non-Infringement Contentions Citing Lack of Diligence

by Charles H. Chevalier and Christine A. Gaddis

Posted in Pharmaceuticals

On June 13, 2025

In IBSA Institut Biochimique SA v. Accord Healthcare, Inc., the United States District Court for the District of New Jersey recently denied Accord Healthcare, Inc.’s (“Accord”) motion seeking leave to amend its Invalidity and Non-Infringement Contentions, finding that Accord did not establish the diligence required to support its motion. The case is a Hatch-Waxman litigation involving several patents covering IBSA’s Tirosint® product, which is used for the treatment of hypothyroidism. Motions to amend contentions require a showing of good cause under Local Patent Rule 3.7. In considering Accord’s motion, the court noted that diligence is the “key factor” that it considers when deciding a motion to amend contentions. And, courts must consider both whether the party seeking to amend was diligent in moving to amend upon discovery of new prior art and whether the party was diligent in discovering the basis for the proposed amendment. With respect to Accord’s motion to amend its invalidity contentions, the court did not dispute that Accord was diligent in moving to amend upon the discovery of new prior art. But, the court did find that Accord was not diligent in discovering the bases for its proposed amendments, which were based on references that were publicly available and readily accessible to Accord for a significant amount of time before Accord...

New Jersey Has Spoken: It’s Sherrill vs. Ciattarelli for the Governor’s Race

by Courtney A. Johnson and Alexandra C. Hayes

Posted in Elections / State Government

On June 12, 2025

Please note the below polling numbers are reflective of the time of publication and are subject to change. The Gibbons Government Affairs team will continue to monitor the primary election results. On Tuesday, June 10, 2025, New Jersey voters went to the polls to select their party’s nominees for Governor and the General Assembly, as well as county and local officials. New Jersey’s 2025 primary resulted in wins for the gubernatorial front-runners, Democrat Mikie Sherrill and Republican Jack Ciattarelli. Sherrill currently serves as the U.S. Representative for the 11th congressional district and will not have to give up her congressional seat while running for Governor. Ciattarelli served in the New Jersey General Assembly from 2011 to 2018, representing the 16th legislative district. This will be his third time running for governor, having lost to Governor Phil Murphy in the 2021 gubernatorial election and to Kim Guadagno in the 2017 Republican primary. The 2025 primary is the first election to have taken place since the U.S. District Court of New Jersey issued a preliminary injunction in Kim v. Hanlon. This caused the Legislature to redesign the ballot and replace the “party line” with an office block design. Governor’s Race At the top of the ticket, 11 candidates ran for their party’s nomination – five on the Republican...

Gibbons SFY 2026 Report: New Jersey Department of Human Services Presents Its FY 2026 Budget Proposal

by Alexandra C. Hayes

Posted in State Budget

On May 28, 2025

This is the latest installment in a series of posts that offers a detailed look into the budget proposals for the major departments that constitute the state government. New Jersey Department of Human Services (NJDHS) Commissioner Sarah Adelman recently appeared before the Senate Budget and Appropriations Committee (SBA) and the Assembly Budget Committee (ABU) to present the department’s proposed FY 2026 budget, which totals $10.260 billion. This total is an increase of $283 million or 2.5 percent from the FY 2025 adjusted appropriation. Backdrop of Looming Federal Funding Cuts The impact of the Congressional budget reconciliation on Medicaid was a focus of the hearing, as the New Jersey Medicaid program is valued at $24 billion, which comprises $14 billion in federal share and $10 billion in State share. The federal budget resolution unlocking the reconciliation process required the House Committee on Energy and Commerce to cut a minimum of $880 billion through 2034. Given that Medicaid accounts for approximately 93 percent of non-Medicare spending under the jurisdiction of that House Committee, Medicaid is expected to receive the majority of the cuts. The proposal recently passed by the House seeks these cuts through work requirements, more frequent eligibility checks, and the cutting of federal funds to states that extend coverage to undocumented immigrants. The Commissioner testified...

Gibbons SFY 2026 Report: New Jersey Department of Children & Families Presents Its FY 2026 Budget Proposal

by Alexandra C. Hayes

Posted in State Government

On May 12, 2025

This is the latest installment in a series of posts that offers a detailed look into the budget proposals for the major departments that constitute the state government. On April 22, 2025, and April 30, 2025, New Jersey Department of Children & Families (NJDCF) Commissioner Christine Norbut Beyer appeared before the Senate Budget and Appropriations Committee (SBA) and the Assembly Budget Committee (ABU), respectively, to present the Department’s proposed FY 2026 $1.449 billion budget, which is a decrease of $74.6 million or 4.9 percent from the FY 2025 adjusted appropriation. Backdrop of Looming Federal Funding Cuts Congress recently passed a budget resolution requiring the House Committee on Energy and Commerce to cut a minimum of $880 billion through 2034. Medicaid accounts for approximately 93 percent of non-Medicare spending under the jurisdiction of the Committee. To meet the targeted objectives, the majority of the Committee’s cuts will likely come from the Medicaid program. To achieve these reductions, Republican lawmakers are considering proposals to shrink federal matching funds that support state Medicaid expansion populations and change program eligibility requirements by imposing work requirements. The Federal Medical Assistance Percentage (FMAP) is the percentage rate used to determine the amount a state receives from the federal government for its Medicaid program. Currently, states that have enacted Medicaid expansion under the...

District of New Jersey Rejects Alter Ego Theory of Liability in Data Breach Class Action

by Caroline E. Oks

Posted in Class Action

On May 1, 2025

In In re U.S. Vision Data Breach Litigation, the District of New Jersey recently dismissed a putative class action related to a 2021 ransomware attack because the plaintiffs failed to adequately allege a direct relationship with the defendant, which was fatal to their claims. The plaintiffs were patients of Nationwide Optometry, a wholly owned subsidiary of defendants U.S. Vision, Inc. and USV Optical, Inc. (collectively, “USV”) until USV sold Nationwide in 2019. The plaintiffs alleged that after the sale, USV retained personally identifiable information (PII) and protected health information (PHI) of Nationwide’s patients and that Nationwide functioned as USV’s alter ego. Between April 20, 2021, and May 17, 2021, USV experienced a data breach compromising PII and PHI of more than 711,000 individuals. The plaintiffs claimed the data breach caused them to suffer identity theft risks, financial damages, and loss of privacy. The lawsuit asserted claims for negligence, breach of fiduciary duty, breach of contract, unjust enrichment, and violations of consumer protection laws. The defendants moved to dismiss, arguing that (1) merely storing the plaintiffs’ data does not create the direct relationship with them required for their fiduciary-duty, implied-contract, unjust-enrichment, consumer-fraud, and negligence claims; and (2) the plaintiffs failed to allege sufficient facts to plausibly suggest that USV and Nationwide are alter egos. The district...

“Tester” Beware: California Wiretap and Pen Register Claims Challenging Website’s Third-Party Tracking Software Doomed by No Expectation of Privacy

by Michael R. McDonald

Posted in Class Action

On April 30, 2025

In Rodriguez v. Autotrader.com, Inc., the District Court for the Central District of California dismissed, with prejudice, a class action lawsuit claiming that Autotrader.com violated the California Invasion of Privacy Act (CIPA) by allowing third-party tracking software to be installed on a website visitor’s browser before the visitor had any opportunity to consent to or decline the website’s privacy policy. The plaintiff’s complaint alleged that she was a “tester” – i.e., someone who seeks out legal violations and files lawsuits to ensure compliance – who visited the Autotrader.com website and made a search query purportedly containing confidential and private information. The complaint alleged that once a query is entered in the search bar, it is routed to unknown third parties and shared with other third parties like Google, Facebook, Pinterest, and various other advertising services. The complaint asserted that the use of the tracking technology violated California’s wiretapping and eavesdropping statute, CIPA § 631(a), as well as CIPA § 638.51, which prohibits the use of pen registers and trace devices. In January 2025, the district court dismissed the plaintiff’s CIPA § 631 claims without prejudice for lack of standing because the complaint merely alleged that the plaintiff made a search query containing confidential and private information but “fail[ed] to describe the contents of her query.”...

Gibbons SFY 2026 Report: New Jersey Department of Banking & Insurance Presents Its FY 2026 Budget Proposal

by Alexandra C. Hayes

Posted in State Budget

On April 28, 2025

This is the latest installment in a series of posts that offers a detailed look into the budget proposals for the major departments that constitute the state government. On April 9, 2025, New Jersey Department of Banking & Insurance (NJDOBI) Commissioner Justin Zimmerman appeared before the General Assembly Budget Committee (ABU) to present the department’s proposed FY 2026 budget, which totals $65.3 million. This total is a decrease of $10 million or 13.3 percent from the FY 2025 adjusted appropriation. Backdrop of Federal Workforce Cuts and Funding Cuts On April 17, 2025, the Trump administration attempted to cut the Consumer Financial Protection Bureau (CFPB) workforce by approximately 90 percent, leaving only around 200 employees. The CFPB was formed in 2010 in the wake of the Global Financial Crisis and is tasked with protecting consumers in the financial sector by preventing abusive and deceptive practices. While the proposed shrinkage of the CFPB workforce was temporarily blocked by a federal judge, this move is the most recent action by the Trump administration signaling a shift toward deregulation and a reduced mission for the CFPB, leaving enforcement and supervision of financial entities to the states. Similarly, the Federal Deposit Insurance Corporation (FDIC) announced this week that more than 1,200 employees would be cut as part of the Trump...