On November 1, 2018, the U.S. District Court for the Northern District of California published updated procedural guidance for class action settlements (the “Guidance”). While the court made changes to align its rules with the December 1, 2018 amendments to Federal Rule of Civil Procedure 23, the court also sought to provide better information for parties and courts in negotiating and approving settlements. It became the first federal district court to require parties to class action settlements to publicly disclose a broad range of detailed settlement information. The following is an overview of key changes.
As readers of this blog are well aware, manufacturers and retailers have faced a tidal wave of consumer class actions alleging false advertising in recent years. In these cases, the plaintiffs bemoan how they were deceived by the labels or advertising of all kinds of products – from yogurt to waffles to dog food to shampoo. But no matter how implausible these claims may be, judges often allow them to survive motions to dismiss (often multiple times), which inevitably ratchets up the pressure to settle. For companies that stick it out and take discovery of the named plaintiff, however, there can be a payoff. Sometimes, the plaintiff’s own testimony can halt an expensive class action in its tracks. That is exactly what happened in Major v. Ocean Spray Cranberries, Inc.
Major was a putative class action filed in the Northern District of California. A California purchaser alleged that Ocean Spray’s 100% Juice products violated California’s consumer protection statutes. Specifically, she alleged that the statement “No Sugar Added” deceived her because (1) the juice labels did not include a disclaimer (one required by federal regulations) explaining that the products were not a low-calorie food, and (2) the products contained “juices from concentrate,” which the plaintiff characterized as a form of added sugar.
The truth of the matter, however, came out at the plaintiff’s deposition. Armed with admissions demonstrating that plaintiff wasn’t even remotely deceived by the term “No Sugar Added,” Ocean Spray moved for partial summary judgment on precisely the same claims that were the subject of the plaintiff’s pending motion for class certification. Judge Davila agreed with Ocean Spray and granted the motion for summary judgment, which in turn rendered the plaintiff’s motion for class certification moot.
First, the plaintiff’s testimony demonstrated that the absence of a disclaimer that the juices were not low calorie had zero effect on her decision to purchase Ocean Spray’s juices. When asked whether she purchased the 100% Juice products because she thought they were “a reduced calorie product,” the plaintiff said no. And when she was asked whether she thought the juices were low calorie products at the time she purchased them, she also said no. In other words, she had not been even remotely deceived by the absence of the disclaimer because (1) she knew the juices were not low in calories and (2) calorie content was not a motivating factor for her purchase. In response, the plaintiff argued that she had understood “No Sugar Added’ to mean “better and healthier.” Judge Davila agreed with Ocean Spray, however, that this argument was just an improper attempt to “amend her Complaint ‘on the fly’” and in any event, the plaintiff hadn’t identified the particular statements on the juice labels that proclaimed the products to be “better.”
The plaintiff’s deposition testimony also disproved her second theory of deception alleged in the complaint (i.e., that including “concentrated fruit juice” as an ingredient belied the “No Sugar Added” labeling statement). She testified that she understood the term “No Sugar Added” to mean that “there’s literally nothing containing sugar that’s added to this other than the natural sugar from the fruit.” Ocean Spray was able to show that its juice (1) was accurately portrayed under the relevant regulations as having “no sugar added” and (2) satisfied the plaintiff’s own understanding of what “no sugar added” means. As a factual matter, the plaintiff’s allegation in the complaint that Ocean Spray’s products contained “concentrated fruit juice” was untrue; Ocean Spray produced undisputed evidence that its juices were “fruit juice from concentrate.” The difference between the two seemingly similar terms is critical: Ocean Spray’s evidence showed that “juices from concentrate, such as Defendant’s products, contain the same ratio of water to sugar solids and other compounds that exist naturally,” which is “is in contrast to products containing fruit juice concentrate, which do contain a higher level of sugar than would exist naturally.” Because “products made with juice from concentrate contain the same amount of sugar that would have existed naturally,” the court held that “the products cannot be said to contain ‘added sugars.’” And this factual showing also “conform[ed] to plaintiffs’ understanding” that “no sugar added” means no sugar beyond “the natural sugar from the fruit.” As a result, the plaintiff could not meet her burden of showing a factual dispute over whether she was deceived about the sugar content in Ocean Spray juice.
To be sure, not every plaintiff will provide deposition testimony that will so neatly end a case. But the Major decision demonstrates that settlement is far from the only option when a judge denies a motion to dismiss, even in a false advertising case.
The plaintiffs’ bar continues to file consumer class actions challenging food and beverage labels en masse, especially in the Northern District of California—also known as the “Food Court.” One particular line of cases—at least 52 class actions, at last count—targets companies selling products containing evaporated cane juice. The battle over evaporated cane juice has become the latest front in the war over whether federal courts should apply the primary-jurisdiction doctrine and dismiss or stay food class actions while awaiting guidance from the federal Food and Drug Administration.
In these cases, plaintiffs allege that the term “evaporated cane juice” is misleading because (in their view) it disguises the fact that the ingredient is a type of “sugar”; they contend that the ingredient should be identified as “sugar.” Their theory rests almost entirely on a draft guidance that the FDA issued in 2009, in which the agency proposed the ingredient be called “dried cane syrup” (notably, not “sugar”), and invited public comment on the issue. That guidance suggested that the name “evaporated cane juice” not be used because it suggests the ingredient is a juice.
In response to these lawsuit, many defendants have emphasized that the FDA’s 2009 guidance not only is non-binding, but that the existence of the guidance establishes that the FDA is examining the precise issue underlying plaintiffs’ theory of liability. Accordingly, defendants argue, courts should let the agency finish its work. Or, put another way, because the federal Food, Drug, and Cosmetic Act squarely authorizes the FDA to regulate the names of ingredients as part of its power to prescribe uniform national standards for food labels, the issue is within the FDA’s “primary jurisdiction.” Thus, as we have contended in advancing the primary-jurisdiction argument, the issue should be decided by an expert agency, not via litigation brought by profit-motivated consumer class action lawyers.
How have these arguments fared? Because the FDA did not take action for over four years after issuing the 2009 draft guidance, plaintiffs had a great deal of success in convincing courts that the FDA was not actively addressing the evaporated-cane-juice issue further and therefore that applying the primary-jurisdiction doctrine was inappropriate.
All that changed in March 2014, when the FDA published a notice in the Federal Register reopening the comment period on the 2009 draft guidance and emphasizing that it has “not reached a final decision on the common or usual name for” evaporated cane juice and that it “intend[s] to revise the draft guidance, if appropriate, and issue it in final form.” [Our firm recently filed a comment with the FDA on this issue.]
As if a light had been switched on, virtually every court to consider the issue since the March notice—at least 10 class actions so far—has ruled in favor of deferring to the FDA’s primary jurisdiction in evaporated-cane-juice cases. This overwhelming trend is welcome news.
But from our perspective, the fact that the FDA recently reiterated its interest in this area should not have been necessary to trigger the primary-jurisdiction doctrine. Indeed, even before the March 2014 notice, the question of the proper labeling of evaporated cane juice was one within the primary jurisdiction of the FDA, as at least one court recognized.
To be sure, as one judge has put it, whether the FDA (or another regulatory agency) “has shown any interest in the issues presented by the litigants” appears to be an “unofficial fifth factor” that influences courts grappling with whether primary jurisdiction should be applied in a given case. Greenfield v. Yucatan Foods, L.P., — F. Supp. 2d –, 2014 WL 1891140, at *4-5 (S.D. Fla. May 7, 2014). But this “unofficial fifth factor” is neither necessary nor part of the four, well-recognized factors for applying primary jurisdiction: “(1) [a] need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration.” Clark v. Time Warner Cable, 523 F.3d 1110, 1115 (9th Cir. 2008).
The same factors were satisfied in the evaporated-cane-juice context even before the March 2014 notice. And—speaking more generally—uncertainty over when the FDA will act should not be treated as an invitation for different courts to apply different state laws and develop differing labeling regimes.
Here’s hoping for a few more helpings of primary jurisdiction at the Food Court—and a few more scoops of uniformity and certainty for the food and beverage industry.
Plaintiffs routinely bring consumer class actions under statutes that allow only consumers—not businesses—to bring claims, or that are limited to transactions solely for personal or household purposes. See, e.g., Electronic Funds Transfer Act, 15 U.S.C. § 1693a(2); Real Estate Settlement Procedures Act, 12 U.S.C. § 2606(a)(1); California’s Consumer Legal Remedies Act, Cal. Civ. Code § 1780. But in some cases, the “consumer” requirement can be the Achilles’ heel for class certification. If it is difficult to determine whether a particular customer is a “consumer” without individualized inquiries, a proposed class action may flunk the predominance, ascertainability, and manageability requirements for class certification.
For example, in a recent zip-code class action, Leebove v. Wal-Mart Stores, Inc., the retailer was accused of improperly requiring customers paying by credit card to provide their phone numbers and addresses in violation of California’s Song-Beverly Credit Card Act. But that statute creates a private right of action only for a “natural person to whom a credit card is issued for consumer credit purposes.” Cal. Civ. Code § 1747.02(d). Business entities and people who use corporate credit cards are not eligible to sue.
That fact was crucial for defeating class certification in Leebove. As the court explained, “before liability could be established with respect to each class member, individualized proof regarding whether each class member’s credit card was issued as a consumer or as a business card would have to be produced.” Although the court also identified other defects in the proposed class, the need for mini-trials as to whether each class member qualified as a “consumer” under the statute was key to the court’s holding that the plaintiffs had failed to establish predominance.
There should be many other opportunities to make this kind of argument either in opposing a motion for class certification or in moving to strike class allegations at the very outset of the case. Here are some ideas (and helpful authority):
- If the class is defined to include only consumers, does the need for individualized inquiries into whether a purchaser qualifies as a consumer or a business render the class non-ascertainable? See, e.g., Walewski v. Zenimax Media, Inc., 502 F. App’x 857, 861 (11th Cir. 2012).
- Alternatively, is the class overbroad because it includes businesses? See, e.g., Mazur v. eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009).
- Or is the question whether the putative class member qualifies as a consumer so individualized as to either defeat predominance or make a classwide trial unmanageable? See, e.g., Kennedy v. Natural Balance Pet Foods (pdf), 361 F. App’x 785, 787 (9th Cir. 2010); Johnson v. Harley-Davidson Motor Co. Group, LLC (pdf), 285 F.R.D. 573, 583 (E.D. Cal. 2012); Ballard v. Branch Banking & Trust Co., 284 F.R.D. 9, 13-16 (D.D.C. 2012); Ewert v. eBay Inc., 2010 WL 4269259, at *9 (N.D. Cal. Oct. 25, 2010).
- Finally, if the named plaintiff himself or herself arguably is not a “consumer” under the applicable law, are his or her claims typical of those of the absent class members? See, e.g., Aberdeen v. Toyota Motor Sales, U.S.A. (pdf), 2009 WL 7715964, at *6 (C.D. Cal. June 23, 2009), aff’d in relevant part, 422 F. App’x 617 (9th Cir. 2011).
It is no secret that many private class actions are filed as follow-on lawsuits to news reports, government investigations, regulatory developments, and identical earlier-filed class actions. But a recent gambit by the plaintiffs’ bar is among the more creative efforts we have seen. Earlier this week, a well-known plaintiffs’ firm filed Dang v. Samsung Electronics Co., in the Northern District of California. The complaint alleges that Apple’s victory over Samsung (at least in part) in certain highly publicized patent infringement actions establishes that Samsung has violated California’s consumer protection law as well as warranty statutes in 49 states and the District of Columbia.
The background of the patent battle between Apple and Samsung is well known, so we mention only a few highlights. In fall 2013, the federal court for the Northern District of California found Samsung liable for infringing several patents relating to Apple’s iPhone. The International Trade Commission also found that certain devices were infringing and precluded Samsung from importing or selling those devices. The same court already has granted partial summary judgment to Apple in a second patent lawsuit targeting additional Samsung devices, with a jury trial set for the end of March. (The battles are not over, to be sure.)
The Dang lawsuit alleges that Samsung induced consumers to purchase its devices by concealing its infringing activities, and that once those activities became known, the resale prices of Samsung smartphones and tablets “dropped dramatically,” injuring consumers and unjustly enriching Samsung. Mr. Dang alleges that “[h]ad [he] known the Product he purchased infringed on the patents held by [Samsung’s] competitor, Apple, he would not have purchased the Product.” He seeks to represent everyone in the U.S. who has purchased one of the allegedly infringing devices since 2008—a proposed class that undoubtedly totals in the millions.
Will Dang become a model for other plaintiffs’ lawyers to follow? The short answer: It depends on whether courts will accept the notion that the alleged infringement harms consumers (as opposed to competitors). Color us skeptical—to put it mildly, we have a number of questions:
- How plausible is it that the interpretation of complex technology patents matters to consumers when they purchase a product?
- How many Samsung purchasers even know that there is litigation involving Apple patents, much less the determination of the claims?
- In light of the Ninth Circuit’s decision in Mazza v. American Honda Motor Co.—a case we have discussed before—what are the chances that a nationwide class could be certified given the variations among state warranty and consumer protection laws?
- Is it realistic to believe that injury and damages can be proven on a classwide basis?
Nevertheless, it is easy to see why plaintiffs’ lawyers might find these kinds of cases attractive. If the result of a battle between competitors is that a product has been determined to be infringing by a court or agency, that may substantially reduce the work a plaintiffs’ lawyer needs to do to pursue the case. And that lawyer will likely argue that key aspects of liability have already been established before the class action even gets started.
The theory espoused in Dang parallels the strategies used by plaintiffs’ firms in the recent wave of false advertising class actions against food and beverage manufacturers. As we have discussed, many of these lawsuits rely on California’s wholesale incorporation of the federal Food Drug and Cosmetic Act (“FDCA”). Plaintiffs attempt to convert alleged technical violations of FDCA labeling requirements into consumer claims alleging that the mere sale of such products is illegal—without the need to show that class members actually were deceived by or relied on the alleged mislabeling. And most of those lawsuits have landed in the Northern District of California—now known as the nation’s “Food Court.”
It’s no coincidence that the Dang lawsuit was filed in the Northern District of California by two plaintiffs’ firms that are highly active in the Food Court wars. Will plaintiffs’ lawyers next flock to copycat class actions seeking to leverage findings of patent infringement? Stay tuned. We’ll be monitoring the situation.
Most people are familiar with Fig Newtons, an iconic cookie that has been around for over a century (at least according to its Wikipedia entry). There are many other popular versions of Newtons—albeit of more recent vintage—such as raspberry and strawberry Newtons. These fruit Newtons drew the ire of plaintiff Monique Manchouck, who filed a false advertising class action in the Northern District of California—which has become known as the nation’s “Food Court” —against the makers of the cookies.
What was her beef? According to her complaint, the product packaging states that Newtons are “made with real fruit.” Yet, the plaintiff argued, the cookie filling contained “merely mechanically processed fruit puree, which is not ‘real fruit.’” And without that alleged misrepresentation, she argued, she “would not have purchased” the Newtons—or at least, “would not have paid a ‘premium price’” for them.
Alas, Judge Alsup found the lawsuit less appetizing than the plaintiff had hoped. After concluding that the plaintiff’s claimed injury satisfied Article III’s constitutional standing requirements, he tossed the claim on the merits, explaining: “Plaintiff has not plausibly alleged why” a “reasonable consumer” would think that “the statement ‘made with real fruit’ would not include mechanically separated fruit puree”
Judge Alsup gave four reasons why he believed that the plaintiff’s lawsuit “strains credulity”:
First, the complaint does not dispute that the cookies contain real fruits in purée form. … Second, even the most narrow definition of “real fruit” does not exclude fruit that has been strained or blended into puréed form. Purée Definition, American Heritage Dictionary (5th ed. 2011). Third, the packaging that said, “made with real fruit,” also prominently displays a depiction of the cookies’ puréed fruit filling …. Fourth, the amended complaint admits that the list of ingredients on the packaging serves notice to consumers that the products contain, “Raspberry Purée” and “Strawberry Purée” respectively . . .
Judge Alsup’s bottom line: “It is ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton.” Accordingly, he dismissed the case without leave to amend.
The plaintiff has filed a notice of appeal. Will common sense win out in the Ninth Circuit? We’ll be watching!
The plaintiffs’ bar continues to march forward in bringing privacy-related class actions. As we’ve written before, companies have often been able to defeat such lawsuits at the pleading stage when plaintiffs cannot allege that they suffered a harm that was concrete or cognizable. But that trend has not been universal: In a recent case involving Apple, the federal court for the Northern District of California refused to dismiss the majority of claims, in large measure because the plaintiff alleged that she relied on the company’s online representations concerning the privacy and security of personal information.
In Pirozzi v. Apple, Inc. (pdf), the plaintiff alleged that Apple acts as a “gatekeeper” in reviewing and screening the apps it makes available for download in its App Store. According to the second amended complaint, Apple’s App Store Review Guidelines state that third-party apps “cannot transmit data about a user without first obtaining the user’s prior permission and providing the user with access to information about how and where the data will be used.” Apple also requires all app developers to agree to its iOS Developer Agreement, which requires developers to follow this policy. In addition, the plaintiff alleged that, at the time she was considering whether to purchase an iPhone, Apple’s website said that “[a]ll apps run in a safe environment, so a website or app can’t access data from other apps.”
Despite these agreements and online statements, plaintiffs alleged that some apps (including popular ones like Facebook and Angry Birds) accessed users’ contacts, location data, and private videos and photographs without user consent. The plaintiff alleged that if she had known “that the apps would be able to potentially steal her private photos and contacts she would not have downloaded the apps and would not have paid as much as she did for the iPhone, or would not have purchased the iPhone” at all.
In arguing that the plaintiff lacked standing under Article III of the U.S. Constitution as well as California’s consumer protection statutes, Apple contended that the plaintiff failed to allege that she suffered a “non-speculative injury.” But the court concluded that it was “enough” for the plaintiff to allege that “that she was ‘misled as to the nature and integrity of Apple’s products’” based on Apple’s online representations about app privacy and security. The court concluded this was a “palpable economic injur[y]” because plaintiff was able to point to a specific online statement that she found material in her decision to purchase the Apple iPhone and apps. And the alleged reliance on such a statement also sufficed, in the court’s view, to satisfy the requirement that claims of fraud be pleaded with particularity.
The court apparently saw a difference between Pirozzi’s claims and the long line of cases in which claims were dismissed when a plaintiff could not identify concrete harms resulting from the allegedly improper disclosure of private information. The deciding factor, it seems, was that Pirozzi could point to specific online statements that (she says) led her to pay more for an iPhone than she would have without those statements. Does this decision signal a broad changing of the tide in privacy cases? We don’t think so. But it should remind companies to reexamine their online statements (including relevant contract terms and privacy policies) to ensure that those statements are in fact consistent with company and industry practice.
Before the Supreme Court’s decision last Term in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the Ninth Circuit had held that a named plaintiff can continue to pursue a putative class action even after the defendant has extended that plaintiff an offer of judgment for the full individual relief sought in the complaint, including reasonable attorneys’ fees and costs. See Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011). In a case that bears watching, a federal district judge in California recently certified for interlocutory review the question whether Pitts’s mootness holding remains good law. See Chen v. Allstate Ins. Co., No. 4:13-cv-00685-PJH (N.D. Cal. July 31, 2013).
We recently blogged about one of the recent “class standing” decisions holding that a named plaintiff has standing to represent a class on false advertising claims challenging products the named plaintiff never purchased with labels the named plaintiff never saw. According to that decision, so long as the products that were purchased by the named plaintiff were “sufficiently similar” to the products purchased by the putative class, the named plaintiff had the requisite “sufficient ‘personal stake’ in the litigation” for standing purposes. For example, a named plaintiff who purchased only a few varieties of green tea had standing to sue in the name of a nationwide class challenging similar advertising of dozens of other tea varieties.
Even as some courts have found in favor of plaintiff on this threshold standing question, however, they recognize that it is but a single step along the way to class certification. Another major hurdle these plaintiffs face is to demonstrate that their claims are “typical” of those class members who purchased different products. In a recent decision, the Northern District of California made clear that this hurdle often will be insurmountable.
In Major v. Ocean Spray Cranberries, Inc., 2013 WL 2558125 (N.D. Cal. June 10, 2013), the plaintiff alleged that Ocean Spray’s product labels were false or deceptive in violation of California’s consumer protection laws. The plaintiff herself had bought only a few Ocean Spray products. But that didn’t stop her from suing in the name of a nationwide class of all purchasers of the entire gamut of Ocean Spray’s “100% Juice” products, “Sparkling” beverages, “Juice Drinks,” and “Cherry” products.
In ruling on class certification, Judge Davila started with Rule 23(a)(3)’s requirement “that Plaintiff’s claims be typical of those that would be advanced by the proposed class.” Judge Davila explained that typicality requires that “in determining whether to certify a class a district court must ‘ensure that the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interest will be fairly represented.’” Among other things, “‘a class representative must . . . suffer the same injury as the class members.’”
Judge Davila added that when these principles are applied to “cases involving several products at issue—like the one presently before the Court—district courts have held that the typicality requirement has not been met where the ‘named plaintiff . . . purchased a different product than that purchased by unnamed plaintiffs.’” Judge Davila concluded that this case was no different, and held that “the proposed class representative . . . has not met her burden of showing that her claims are typical of those of the proposed class members.”
As Judge Davila explained, “[T]he typicality requirement has not been met” because “Plaintiff’s proposed classes are so broad and indefinite that they encompass products that she herself did not purchase” and “had nothing to do with.” Thus, purchasing Ocean Spray’s “Diet Sparkling Pomegranate Blueberry drink,” as the named plaintiff did, does not satisfy the typicality requirement over the entirety of Ocean Spray’s “Sparkling” line of products, because the various products may have differing labels and nutrition claims.
Plaintiff’s counsel responded to the decision by saying they intended “to refine” the complaint “to address the court’s articulated opinion.” [San Jose Judge Sets Up Roadblock for Plaintiff’s Lawyers in Food Labeling Case (LA Daily Journal June 12, 2013).] We’ll see.
As we have blogged before, the food and beverage industry is facing a tidal wave of class action litigation alleging false advertising under state consumer protection laws. We monitor hundreds of these cases, which often present a similar standing issue – the class representative has purchased one product, say Ben & Jerry’s All Natural Chunky Monkey Ice Cream, which he says was falsely advertised as “all natural,” but seeks to represent a nationwide class of consumers challenging all varieties of Ben & Jerry’s ice cream marketed as “all natural,” including, for example, Chubby Hubby.
One of the latest decisions on this standing issue is Lanovaz v. Twinings North America, Inc., 2013 WL 2285221 (N.D. Cal. May 23, 2013). The plaintiff in that case was suing over the phrase “a natural source of antioxidants” on the label of 53 tea products sold by Twinings. But the plaintiff herself had bought only six of those products. Because she obviously wasn’t deceived by the labels on the other 47 products she never bought, Twinings moved to dismiss the claims with respect to those products for lack of standing.
Judge Whyte denied the motion (in large part), which he said raised a close question that has “divided” courts and for which “the Ninth Circuit has not provided guidance.” In Judge Whyte’s view, “courts should not be too rigid in applying standing requirements to proposed classes.” For that reason, he noted, the “deciding factor is whether the products are sufficiently similar.” If the products are “nearly identical” and involve identical challenged advertising, the named plaintiff will have the requisite “sufficient ‘personal stake’ in the litigation.”
Judge Whyte then held that because 51 varieties of the tea in question were made from the same plant as the varieties plaintiff purchased, the named plaintiff had standing to assert class claims as to them all. But the remaining two types of tea came from a different plant (i.e., a different source of the “natural antioxidants” touted on the label). Judge Whyte concluded that the plaintiff could not bring class claims with respect to these products because they were “significantly different” from the ones the plaintiff had purchased.
We think Judge Whyte chose the wrong side of this split in authority. Just as class actions can’t be used to transform the substantive law, the Supreme Court has similarly made clear that plaintiffs cannot clothe themselves with standing they would otherwise not possess merely by suing in the name of a putative class. E.g., Lewis v. Casey, 518 U.S. 343, 357 (1996).
As we’ve covered on the blog, the Supreme Court recently denied review of a related standing issue in the context of a securities fraud claim in which the plaintiff had purchased only some of the securities as to which he sought to bring class claims. Hopefully the Court will step in soon to resolve the disagreement by lower courts over so-called “class standing”—a divide that Lanovaz demonstrates is deepening.