By Julie Manganis

Law360 (June 27, 2025, 1:58 PM EDT) — Seven Massachusetts cannabis testing labs are asking a state court judge to toss a lawsuit brought by a competitor accusing them of manipulating test results, with three of the defendants calling the complaint a “publicity stunt” driven by the plaintiff’s declining market share.

Plaintiff MCR Labs LLC, which filed suit in January against eight other testing labs alleging they were misrepresenting potency and contamination results to circumvent state regulations, disputed the claim in an opposition on Wednesday, doubling down on allegations that its competitors have “siphoned” away customers by guaranteeing their products will pass tests.

The defendants, in a series of motions to dismiss, said MCR’s claims lack any evidentiary or legal support, urging Suffolk County Superior Court Judge Debra Squires-Lee to toss the claims, which include tortious interference, unjust enrichment, and violation of the state’s law against unfair or deceptive business practices.

Judge Squires-Lee has scheduled arguments on the motions for Aug. 27. “The complaint appears to be a thinly veiled publicity stunt designed to extol the virtues of plaintiff’s services while casting unsupported and unsupportable aspersions on the majority of its competitors,” lawyers for three of the defendants — Analytics Labs LLC, Green Valley Analytics LLC, and Safe Tiva Labs LLC — said in a joint motion to dismiss.

The three labs argued MCR’s complaint is being driven by “apparent resentment” over its lost business and that its claims are based on “speculation, unreasonable inferences and conclusory allegations” devoid of any specifics.

Similar arguments have been made on behalf of defendants Kaycha, Green Analytics, Assured Testing, and Massbiolytics in their motions to dismiss the complaint. An eighth defendant, CDX, which has closed, has not filed any motion.

MCR’s complaint “lacks a single allegation that any defendant engaged in a specified intentional misrepresentation of test results for any specific customer,” Massbiolytics said in its motion filed Wednesday.

The defendants said MCR is not entitled to pursue a claim of unfair or deceptive practices because there has been no commercial transaction between the plaintiff and any of the defendants.

MCR said in its response it believes it has adequately pled its claims at this stage of the proceedings, and that the defendants are making “a premature factual challenge that is inappropriate on a motion to dismiss.”

MCR said the unfair or deceptive trade practices clause of the state’s consumer protection law does not require it to have engaged directly in a transaction with a competitor to assert an unfair competition claim.

The plaintiffs also said the tortious interference claims are based on actual lost contracts, including one specifically identified in the complaint.

The defendants argued the complaint is improperly filed in Suffolk County, as neither the plaintiff nor any of the defendant labs are located there. MCR said in its response that it brought the case in Suffolk County Superior Court’s Business Litigation Session because the specialized division has the resources and experience to handle the claims.

Messages seeking comment from the parties did not immediately receive responses on Friday.

MCR Labs LLC is represented by Patrick J. Sheehan of Whatley Kallas LLP, Edwin Kilpela and David Slade of Wade Kilpela Slade LLP, and Alex Barlo of Scott+Scott Attorneys at Law LLP.

Green Analytics LLC is represented by Kevin Polansky of Nelson Mullins Riley & Scarborough LLP.

Analytics Labs LLC, Green Valley Analytics LLC, and Safe Tiva Labs LLC are represented by Michael D. Roundy and Michael J. McAndrew of Bulkley Richardson & Gelinas LLP.

Massbiolytics is represented by Roger A. Peace of the Peace Law Office.

Kaycha is represented by Joseph D. Lipchitz and Paige V. Schroeder of Saul Ewing LLP.

Assured Testing Laboratories LLC is represented by David B. Mack and Stephanie R. Parker of O’Connor Carnathan & Mack LLC.

The case is MCR Labs LLC v. Analytics Labs LLC et al., case number 2584CV00260, in the Suffolk County Superior Court of the Commonwealth of Massachusetts.

–Editing by Philip Shea

 

By Elliot Weld

Law360 (July 21, 2025, 8:04 PM EDT) — Kentucky Attorney General Russell Coleman has brought a lawsuit in state court against Chinese bargain-shopping app Temu, accusing it of illegally “stealing” customer data without their knowledge and allowing the Chinese Communist Party to access the information.

In a complaint filed Thursday, the state attorney general’s office asserted violations of the Kentucky Consumer Protection Act and Kentucky common law, and said it would seek an injunction on data collection.

“Temu’s cheap products and flashy marketing hide real danger,” Coleman said in a statement Thursday. “Their platform can infect Kentuckians’ devices with malware, steal their personal data and send it directly to the Chinese government. At the same time, they’re eroding trust in some of Kentucky’s most iconic brands, which could lead to job losses and hardship.”

According to the court filing, an investigation had revealed “threats to Kentuckians’ privacy and security due to code-level behaviors in the Temu app,” and that those behaviors were designed to evade detection.The app uses multiple layers of encryption and other processes to shield itself from forensic searches, and it uses code to “sniff out” potential forensic tools, the suit says.

“The app even goes so far as to edit its own code once it has been downloaded to a consumer’s phone, potentially allowing it to exploit user’s [personal identifiable information] and other data, or to otherwise control the consumer’s device, in unknown and unknowable ways,” the complaint read.

Furthermore, it collects an “alarming” amount of personal identifiable information that is beyond what is needed for an ordinary online shipping business, the attorney general’s office said, adding that Temu can also collect a user’s GPS information, lists of other apps installed on a device, and the cellular data and Wi-Fi networks to which the user’s phone is connected.

Kentucky alleged Temu acknowledges that part of its operations are located in mainland China, where cybersecurity laws allow the government “unfettered access” to data owned by Chinese businesses. Nebraska Attorney General Mike Hilgers made similar allegations in a suit filed in Nebraska state court last month, saying Temu was unlawfully gathering information from minors and using secretly installed malware on consumer devices.

A spokesperson for Temu said in a statement Monday that Coleman’s allegations were unfounded and based on misinformation circulated online. The spokesperson said the company categorically denies the allegations and “will defend ourselves vigorously.”

“We understand that as a new company with an innovative supply chain model — one that begins by bringing the global supply chain directly to the end consumer — some may misunderstand us at first glance and not welcome us,” according to the statement. “We are here for the long term and are eagerly listening and improving. We believe that scrutiny will ultimately benefit our development. We are confident that our actions and contributions to the community will speak for themselves over time.”

The state is represented by Russell Coleman, J. Christian Lewis, Stephen Humphress, and Lyndsey Antos of the Kentucky Attorney General’s Office; Brian McMath and Brian Moore of Nachawati Law Group; and David Slade of Wade Kilpela Slade LLP. Counsel information for the company was not immediately available.

The case is Commonwealth of Kentucky v. PDD Holdings Inc. et al., case number 25-CI-00232 in the Woodford Circuit Court.

–Editing by Covey Son.

By Matthew Santoni

Law360 (May 30, 2025, 2:59 PM EDT) — A proposed class of employees at Pennsylvania-based gas and grocery chain Giant Eagle asked a federal court for preliminary approval of an almost $669,000 settlement of their claims that the company overspent their retirement savings on administrative fees.

Proposed lead plaintiff Cheryl Kehrer said that, if approved, the proposed settlement would cover more than 15,000 retirement plan participants and beneficiaries who worked at Giant Eagle and contributed to the plan as far back as August 2018. The settlement would be quicker and less risky to the proposed Employee Retirement Income Security Act class than trying to prove their claims through a trial, Kehrer said in her request for preliminary approval Thursday.

“In this complex ERISA class action, plaintiff would proffer an expert for liability and damages, which defendants undoubtedly would counter with their own proffered expert(s). Ultimately, a battle of experts presenting differing opinions as to the prudence of the conduct of defendants and starkly different views on liability would ensue,” the brief in support of preliminary approval said. “… Although a trial on the merits in any case always entails some risk, in the context of ERISA breach of fiduciary duty class actions, the risk is even more considerable as plaintiffs in various cases have been unable to satisfy their burdens of proof in analogous cases.”

Thursday’s motion sought preliminary approval of the settlement so that potential class members could be contacted.

Kehrer had filed suit in August 2024, claiming Giant Eagle breached its fiduciary obligations to 401(k) plan participants by failing to control administrative and record-keeping costs, wasting the assets of the plan and failing to act in the best interests of the plan participants.

By December, Giant Eagle had filed a motion to dismiss the case and Kehrer had filed a response, but both sides agreed to try mediation before the motion was decided, the brief said.

After a daylong mediation session in February, led by Babst Calland’s Mark Shepard, the parties reached the basics of an agreement, which they continued working on and announced in April.

According to the proposal presented for preliminary approval, Muhic Law and Wade Kilpela Slade LLP would request up to one-third of the $668,750 settlement fund as fees and up to $15,000 for costs. Kehrer would seek a $5,000 award as the lead plaintiff.

The brief said the proposed settlement should meet all the requirements for approval, since it was reached after an arm’s length negotiation and significant discovery during the pre-complaint and mediation stages.

If the case were to continue, Kehrer acknowledged that Giant Eagle would strongly contest her assertions that the plan’s recordkeeping and administrative services, or RKA fees, were unreasonable and consumed millions of dollars unnecessarily.

“Plaintiff’s assessment of maximum potential damages to the plan, in a best-case scenario, was approximately three million dollars,” the brief said. “… Not only did defendants assert facts to demonstrate a purported prudent process of fiduciary review, defendants challenged the comparators utilized by plaintiff in calculating potential damages, as well as the per-participant RKA fees put forth by plaintiff. While plaintiff was confident in her theory of liability and calculation of potential damages, she acknowledges that defendants would raise a strong challenge to her claims.”

The suit would face an additional challenge of convincing the court to stick to the proposed class period, which, if shortened, could further reduce the damages below the amount in the settlement, Kehrer said. Giant Eagle was also looking for new proposals for recordkeeping that could reduce the fees at issue in the case for the future, further complicating the calculation of damages going forward, she said.

“Given the wide range of potential damages, the outcomes at trial, and the uncertainty of proving actual losses to the plan, the monetary settlement is fair and reasonable,” the brief said.

Any objections to the settlement or the reaction of proposed class members would have to be assessed after class members are notified, the brief said.

Counsel for the parties did not immediately respond to requests for comment Friday.

Kehrer and the proposed class are represented by Edwin J. Kilpela and Paige T. Noah of Wade Kilpela Slade LLP and Peter A. Muhic of Muhic Law LLC. Giant Eagle is represented by Emily Byrne, Jeremy P. Blumenfeld, and Stephanie R. Reiss of Morgan Lewis & Bockius LLP.

The case is Kehrer v. Giant Eagle Inc., case number 2:24-cv-01211, in the U.S. District Court for the Western District of Pennsylvania.

–Additional reporting by Hailey Konnath.

–Editing by Patrick Reagan.

By Hailey Konnath

Law360 (April 14, 2025, 8:45 PM EDT) — Grocery store chain Giant Eagle Inc. has reached a settlement with a former employee resolving a proposed Employee Retirement Income Security Act class action accusing the company of wasting millions of dollars of retirement plan participants’ funds, according to a notice filed Monday.

Giant Eagle and plaintiff Cheryl Kehrer reached the deal during mediation in February, they said in the notice lodged jointly in Pennsylvania federal court. Since then, they have been working to draft the settlement agreement, which isn’t yet finished given the “length and complexity of the settlement agreement and exhibits,” they said.

“The parties anticipate that they will be able to finalize and execute their class action settlement agreement within the next 30 days,” they said.

Kehrer filed suit in August 2024, claiming Giant Eagle breached its fiduciary obligations to 401(k) plan participants by failing to control administrative and record-keeping costs, wasting the assets of the plan and failing to act in the best interests of the plan participants.

“Defendants’ actions were contrary to the actions of a reasonable fiduciary and resulted in the plan and its participants losing many millions of dollars,” Kehrer said.

According to the complaint, the plan had roughly 8,260 participants with account balances when it made its most recent disclosure in October 2023. At that time, it reported about $658.8 million in assets.

Kehrer, who lives in Pennsylvania, said she and other participants have been subjected to “excessive costs and fees” resulting in financial losses. She was hoping to represent a class of all participants in the plan between August 2018 and today.

“Had defendants complied with their fiduciary obligations, the plan and plan participants would not have suffered these losses, and plan participants would have had more money available to them for their retirement,” Kehrer said in the complaint.

Giant Eagle describes itself as a “food, fuel and pharmacy retailer” with more than 470 locations in Pennsylvania, Ohio, West Virginia, Maryland, and Indiana, according to its website.

Counsel for Kehrer declined to comment Monday. A representative for Giant Eagle didn’t immediately respond to request for comment.

Kehrer is represented by Peter A. Muhic of Muhic Law LLC and Edwin J. Kilpela Jr. and Paige T. Noah of Wade Kilpela Slade LLP. Giant Eagle is represented by Jeremy P. Blumenfeld, Emily C. Byrne, and Stephanie R. Reiss of Morgan Lewis & Bockius LLP.

The case is Cheryl Kehrer v. Giant Eagle Inc. et al., case number 2:24-cv-01211, in the U.S. District Court for the Western District of Pennsylvania.

–Editing by Stephen Berg

By Emilie Ruscoe

Law360 (August 5, 2024, 8:14 PM EDT) — Pay advance app EarnIn has been hit with a proposed class action alleging its optional fees and tips are hidden interest payments that, on average, far exceed fair rates for consumer lending. In a complaint filed Friday in San Jose federal court, EarnIn customers Brennan Orubo, Michael Sims, Demetrice Mathis, and Cidney Lett say the bank violated Georgia’s Payday Loan Act and the federal Truth In Lending Act with financial offerings that come at “an unbelievably high cost” for consumers, characterizing expedited deposit fees and tips the company receives from customers as interest EarnIn received for lending to them and calculating that its fees, “on average, yield [annual percentage rates] of 284%.”

“EarnIn’s users are far more likely to have costs that yield triple-digit APRs deducted from their accounts than users of traditional payday lenders, which means EarnIn’s users are far more likely to have their paychecks eroded, and be unable to improve their financial situation, than users of traditional payday loans,” the consumers claim.

The California-based EarnIn provides small loans to consumers and describes itself as free to use. It advertises that customers can request to borrow up to $100 a day and as much as $750 during a customer’s pay period.

The suit states that consumers seeking to use the service must “verify” that they have an employer that pays out earnings on a scheduled basis, such as in a biweekly paycheck. The app must also be linked to the bank accounts where customers receive their paychecks and have access to customers’ account transaction records, the suit says. When EarnIn detects a paycheck has posted to the customers’ bank accounts, it automatically debits the sum of the funds the customer borrowed during the pay period, according to the suit.

The consumers say EarnIn’s standard payouts take a few days to land in their bank account, but users can opt to receive an expedited deposit within minutes if they agree to pay EarnIn a “lightning speed fee” when they get their next paycheck.

The suit also points to the company’s practice of requesting a “tip” before their advance goes through. If customers don’t want the company to auto debit a tip out of their bank accounts when they get paid, they have to manually select a zero-dollar tip, the consumers say.

The consumers’ suit takes aim at the company’s use of the term tip, widely used to refer to a voluntary payment made on top of the charged cost for certain services. “Instead, tips serve as a profit center for EarnIn — a highly capitalized company backed by venture capitalists and institutional investors — and they are solely intended to compensate EarnIn for lending money,” the suit states.

The complaint cites recent examples of EarnIn customer borrowing costs from the plaintiffs’ personal experience, such as when one of the plaintiffs borrowed $100, to be repaid in 10 days or less, and paid a $3.99 expedited deposit fee. That fee represents an APR of over 145%, the plaintiffs claim.

The suit seeks certification of the putative class of EarnIn borrowers in Georgia, repayment of the class members’ loan principal and triple any fees or tips they paid over the past 20 years. They also seek a finding that the company’s loans are void and an order barring the company from seeking any more payments from harmed consumers.

Representatives for the parties did not immediately respond to requests for comment Monday. Orubo, Sims, Mathis, and Lett are represented by Gillian L. Wade, Sara D. Avila, Marc A. Castaneda, and Kristin K. Graham of Wade Kilpela Slade LLP and Kevin Tucker and Kevin Abramowicz of East End Trial Group LLC. Counsel information for the defendants was not immediately available Monday.

The case is Orubo et al. v. Activehours Inc., case number 5:24-cv-04702, in the U.S. District Court for the Northern District of California.

–Editing by Drashti Mehta

By Julie Manganis

Law360 (January 31, 2025, 4:36 PM EST) — A Massachusetts cannabis testing lab accused eight of its competitors of intentionally inflating results for potency and concealing findings of contamination in order to lure away customers, according to a lawsuit filed in state court.

MCR Labs LLC, which opened in 2013 shortly after the state legalized medical cannabis, said in the complaint filed Thursday in Suffolk County Superior Court that its business has suffered “severely” from the practice of “lab shopping,” as current and potential customers “are drawn away by labs willing to provide biased results that reflect higher but inaccurate THC levels and ignore safety failures.”

MCR’s complaint names competitors Analytics Labs LLC and Green Valley Analytics in Holyoke, Assured Testing Laboratories LLC in Tyngsboro, CDX Analytics in Salem, Green Analytics Massachusetts (formerly Steep Hill) in Framingham, Kaycha MA LLC in Wellesley, Massbiolytics Corp in Dracut, and Safe Tiva Labs in Leverett.

It alleges unfair and deceptive practices, interference in business relationships, and unjust enrichment. In addition to damages, the complaint asks for an injunction barring the defendants from providing falsified results.

Massachusetts, which legalized recreational cannabis in 2016, has regulations in place requiring growers to have their products tested to confirm potency and identify potential contaminants before they can be sold to retailers. MCR said the defendant labs have both overstated the levels of THC, the psychoactive compound in cannabis, and underreported or ignored the presence of contaminants including mold, yeast, pesticides, and lead.

Besides harming MCR and other labs that do not engage in such practices, the defendants are also harming consumers and creating a “significant public health risk,” MCR said in the complaint. “This race-to-the-bottom willingness to manipulate testing also results in unknowing consumers overpaying for lower-potency cannabis riddled with dangerous contaminants,” MCR said. “Given the rampant corruption of compliance testing, neither consumers nor dispensaries could be expected to know which products on the shelf may be unlawfully contaminated or have misleading potency claims.”

MCR said it has lost “dozens” of customers who, also faced with competitive pressure, have been enticed to send their products to the defendant labs. The complaint includes examples, based on reports to state regulatory body the Cannabis Control Commission, of large spikes in the reported THC content of products after MCR customers switched to new test labs.

One lab, which the complaint said “has been one of the most notorious inflators of total THC potency,” acquired a former MCR customer in January 2024. That cultivator immediately saw a 46.3% jump in potency test results. Another former MCR customer saw a 43.7% jump after switching to one of the defendant labs, the complaint said.

“This increase cannot be achieved without result manipulation,” according to MCR Labs, which said it obtained the information from the Cannabis Control Commission through a public records request and the commission’s website. Similar jumps were reported for other labs, the complaint said. At the same time the labs are inflating THC claims, they’re underreporting contaminants, citing a Wall Street Journal analysis that showed “a disproportionate share” of samples reported to be just under the legal threshold for sale.

MCR goes on to cite examples of labs that reported low failure rates for contaminants, including one that faced scrutiny after a customer saw mold on a product tested there, had it tested at another lab, and then shared the results on social media. Shortly after that, lab’s rate of samples testing positive for contaminants “skyrocketed,” and it shut down soon after, the complaint said.

Counsel for MCR declined to comment beyond the pleadings Friday. Green Valley Analytics CEO Jonathan Ferguson declined to comment Friday. The other defendants did not immediately respond to requests for comment Friday.

MCR is represented by Patrick J. Sheehan of Whatley Kallas LLP, Gillian L. Wade, Collins Kilgore, Edwin J. Kilpela Jr., and David Slade of Wade Kilpela Slade LLP, and Alex Barlow of Scott + Scott Attorneys at Law LLP. Counsel information for the defendants was not immediately available Friday.

The case is MCR Labs LLC v. Analytics Labs LLC, et al., case number 2584CV00260, in the Suffolk County Superior Court of the Commonwealth of Massachusetts.

–Editing by Stephen Berg

By Rae Ann Varona

Law360 (March 21, 2025, 8:02 PM EDT)

A San Francisco federal judge on Friday allowed stalking victims to proceed with a proposed class action alleging that Apple Inc.’s AirTag devices have become a “weapon of choice” for abusers. The plaintiffs, a group of women who said they were secretly tracked by stalkers using the devices, argued that Apple failed to provide adequate safeguards to prevent such misuse, despite designing the AirTag for locating lost items.

U.S. District Judge Vince Chhabria said the victims’ claims, which include allegations of negligence, invasion of privacy, and violations of California’s consumer protection laws, could move forward, rejecting Apple’s attempt to compel arbitration based on the terms of service. Judge Chhabria noted that the plaintiffs were not the original purchasers of the AirTags and therefore did not have a direct contractual relationship with Apple that would bind them to arbitration.

The complaint detailed instances where AirTags were planted on victims’ vehicles, homes, and personal belongings, often without their knowledge. Plaintiffs reported learning about the tracking months later, sometimes after experiencing harassment, break-ins, or other safety threats. The suit claims Apple’s tracking notifications are insufficiently fast and fail to alert non-iPhone users promptly, leaving victims vulnerable.

Apple has previously stated that AirTags were designed with anti-stalking protections, including audible alerts when an unknown AirTag moves with a person and iPhone notifications. The company emphasized that AirTags are intended to track personal items, not people, and has pointed to built-in privacy features to minimize misuse.

The proposed class action seeks damages for the victims and enhancements to AirTag safety, including more timely alerts and improved mechanisms to prevent unauthorized pairing. Advocates have called on Apple and other technology companies to implement stronger safeguards and clearer guidance for consumers regarding tracking risks.

Plaintiffs are represented by Jennifer S. Bennett of The Law Offices of Jennifer S. Bennett, and Apple is represented by Marc M. Seltzer, Brian M. Willen, and Matthew A. Brinckerhoff of Susman Godfrey LLP.

The case is Jane Doe v. Apple Inc., case number 3:23-cv-04788, in the U.S. District Court for the Northern District of California.

By Jonathan Capriel

Law360 (June 25, 2024, 4:57 PM EDT) — A California marijuana cultivator has been accused of selling cannabis products with unacceptable levels of contaminants, getting around state requirements by seeking out laboratories that turned a “blind eye” to its crops’ impurities, according to a proposed class action.

The complaint names nearly two dozen West Coast Cure and Phire-branded products that were allegedly tainted with pesticides and fungicides, often several times above the state’s allowable legal limit, the proposed class action filed in Orange County Superior Court claims. Shield Management Group LLC, the company that owns the brands, allegedly sought out cannabis testing facilities that would intentionally manipulate the results so the crop would not be thrown out, a scheme that’s become widespread in the industry, the June 15 lawsuit claims.

“Sadly, now that the practice of lab shopping, and by extension burying safety fails, has become widespread, there is no end in sight, and no place for honest brokers in the marketplace, absent external intervention,” the complaint said. “Neither consumers nor even dispensaries could be expected to know which products on the shelf disguise contamination, and which do not (consumers and dispensaries are not laboratories, after all). But the consequence of this fact poses an existential threat for the health of consumers in California.”

The suit seeks to represent a class of California consumers who bought the West Coast Cure and Phire products, seeking damages under a number of state business laws and other claims such as breach of express warranty, negligent misrepresentation, intentional misrepresentation, and unjust enrichment.

According to the complaint, at least 21 West Coast Cure and two Phire products are tainted with chemicals or fungus that the state identifies as contaminants, according to independent testing. All but one of the 23 products listed in the complaint contained Chlorfenapyr, which the state’s Department of Cannabis Control classifies as a Category I pesticide, meaning it is not safe for human consumption. If it is detected at any level during laboratory testing, the cannabis batch is considered to have failed the pesticide test.

Many of the products contained Category II contaminants, which are acceptable to have at certain levels. One such product, a THC-infused vape pen called Apple Burst, contained 231 times the allowable legal limit of fungicide Trifloxystrobin, the suit said.

Shield Management sought to conceal “failing grades” it knew its cannabis would receive by seeking out laboratories that would certify their crop was unadulterated, according to the suit. The company did not immediately respond to a request for comment.

The lead plaintiff, Kayla Esmond, is represented by Alex Barlow and Kyle Dingman of Scott + Scott Attorneys at Law LLP, and Edwin J. Kilpela Jr., David Slade, Sara D. Avila, Marc A. Castaneda, and James LaMarca of Wade Kilpela Slade LLP. Counsel information for Shield Management wasn’t immediately available.

The case is Kayla Esmond vs. Shield Management Group, case number 2024-01407758, in the Superior Court of the State of California, County of Orange.

–Editing by Nicole Bleier

By Gina Kim

Law360 (June 10, 2025, 6:19 PM EDT) — Victims stalked by abusers of Apple’s AirTag asked a California federal judge to certify their proposed class action, arguing their negligence and product liability claims can be adjudicated in one fell swoop since they rest on the same question of whether the tag’s design unreasonably put them at risk of harm.

In a 39-page motion filed June 6, plaintiffs who accuse Apple Inc. of defectively designing its AirTag in a way that put them at risk of being tracked without their consent argue that class certification is appropriate as the challenged conduct impacted all iOS and non-iOS users alike who were tracked via the AirTags. This includes non-iOS users who downloaded Apple’s Tracker Detect app for Android.

“All class representatives allege a common pattern of wrongdoing: Apple’s negligent design, marketing and release of a product that unreasonably endangered users, along with its resulting breach of legal duties,” the plaintiffs say. “Each representative will rely on the same legal theories and common body of evidence to prove their claims, the claims of the class, and to seek identical relief — namely, injunctive relief in the form of business practice changes regarding AirTags and their safety features.”

The accusations in the suit are critical to the plaintiffs’ liability theories behind the negligence, product liability and California Unfair Competition Law claims throughout the classes, the plaintiffs say. These issues can be resolved on a class-wide basis, even for non-iOS users, with a single common question: whether the design, marketing and launch of the AirTags unreasonably placed the plaintiffs at risk of stalking; whether the misuse of the device was foreseeable by Apple; and whether Apple violated its duty to implement sufficient guardrails to the device, the motion says.

“First, Apple failed to protect non-iOS users from AirTag stalking for over two years by providing no automated alerts,” the motion says. “Its only solution, the Tracker Detect app, was released eight months after the AirTag, required manual scans and offered no background detection, leaving the non-iOS users (nearly half of U.S. mobile users) vulnerable.”

The motion continues, “Apple delayed collaborating with Google until mid-2023, asserted patent rights that could deter broader safety efforts, and prioritized battery life and control over user safety despite having the ability to implement background scanning earlier.”

Furthermore, among iOS and non-iOS users alike, every plaintiff in the proposed classes was affected by the device’s sound alert feature, which is too quiet, indistinct and can be easily muffled, especially in loud environments, the motion states.

Misusers could also disable the sound alert feature, the plaintiffs note, adding that the device doesn’t help victims locate it, especially if they’re hearing impaired or can’t discern what exactly the sound alert means. The varying degrees in the seriousness, scope or manifestation of the plaintiffs’ emotional distress also doesn’t matter, the plaintiffs argue. They also argue it’s immaterial that the class representatives suffered different economic injuries. One of the named plaintiffs had to move back to Ireland, sell her car at a loss and leave her career in the United States because of the abuse stemming from the AirTag, while another plaintiff had to move twice, according to the motion.

However, those issues don’t defeat the notion that the claims are typical among the classes, the plaintiffs say, because the case rests on Apple’s actions and liability theories rather than the particular injuries affecting the victims.

Friday’s certification bid is the latest development in a lawsuit the plaintiffs first filed in December 2022, claiming the AirTag has become the “weapon of choice” for stalkers to track their victims, but that hasn’t stopped the tech giant from touting the device as “stalker-proof” while ignoring concerns of people at risk of abuse.

The AirTag, which is small enough to be slipped into a purse or hidden in a vehicle, emits signals that can be picked up via Bluetooth and sent to the tag’s owner.

In their Friday motion, the plaintiffs point out that California law applies to all the class members’ claims, as Apple’s software agreement binds them to it. This includes Android users who downloaded Apple’s Tracker Detect application, which contains California choice-of-law provisions.

California also has significant contacts with the plaintiffs’ claims because the AirTag’s key designers are based here, and the alleged misconduct originated here, the motion adds, noting that Apple is based in California and the AirTag was designed in the state. Apple also made business decisions related to the device’s design and commercialization in California, the motion adds.

A plaintiff’s state of residence — whether it’s California or some other state — doesn’t matter either; what matters is that Apple’s alleged conduct related to the AirTag, which gave rise to the suit’s claims, occurred in California, the plaintiffs argue.

“It was Apple’s conduct in California that enabled plaintiffs and class members — resident and nonresident alike — to be stalked in their home states or in any other state or country where they traveled,” the motion says. “In point of fact, the ‘last event’ occurs in perpetuity in California, because Apple’s ongoing acts and omissions in refraining to make improvements in its software, hardware and firmware to prevent and disable unwanted tracking means that its unlawful conduct continues to this day — long after the acts of any stalker.”

A hearing on the certification bid is set for Sept. 4.

“We’re honored to seek to represent all of the victims of AirTag stalking across the country,” plaintiffs’ co-counsel Gillian L. Wade of Wade Kilpela Slade LLP told Law360 in an emailed statement Tuesday afternoon. “Our clients — whose chilling and often heartbreaking experiences are just a sample of the lives that have been upended by Apple — are committed to fighting this battle on behalf of every victim, and we’re deeply grateful to them for their bravery and their perseverance.”

Representatives for Apple did not immediately respond to requests for comment Tuesday.

The plaintiffs are represented by Wade Kilpela Slade LLP and Milstein Jackson Fairchild & Wade LLP. Apple is represented by Morrison Foerster LLP.

The case is Lauren Hughes et al. v. Apple Inc., case number 3:22-cv-07668, in the U.S. District Court for the Northern District of California.

–Editing by Kristen Becker.