Describing its precedent as “confus[ing]” and “inconsistent,” the Third Circuit recently clarified the test for deciding whether to issue a preliminary injunction. Since the 1970’s, courts in the Third Circuit have decided preliminary injunction applications based upon the following factors: (1) the likelihood of success on the merits; (2) whether the movant will be irreparably harmed in the absence of relief; (3) the possibility of harm to others from grant or denial of the relief; and (4) the public interest. However, courts differed as to how these four factors should be applied. In Reilly v. City of Harrisburg, the Third Circuit shed light on how these factors are to be weighed and, at least in part, who bears the burden on each. The Third Circuit held that a movant seeking a preliminary injunction bears the burden of “meet[ing] the threshold for the first two ‘most critical’ factors.” To satisfy the first prong, the movant “must demonstrate that it can win on the merits” by showing that its chances of success are “significantly better than negligible but not necessarily more likely than not.” To satisfy the second prong, however, the movant must show “that it is more likely than not to...
Author: Kaitlyn E. Stone
Doomed CFA and TCCWNA Claims for Proposed Health Club Class Action Lead District Court to Question CAFA Jurisdiction
The District of New Jersey’s recent decision in Truglio v. Planet Fitness, Inc. provides valuable lessons on pleading claims under the New Jersey Consumer Fraud Act (“CFA”), Truth-in-Consumer Contract, Warranty, and Notice Act (“TCCWNA”), and Health Club Services Act (“HCSA”). Not only does the district court’s opinion reinforce the requirement of an ascertainable loss to sustain a CFA claim, but it also confirms that omissions are not actionable under the TCCWNA. Moreover, the district court’s conclusion that the plaintiff in this putative class action did not plead an ascertainable loss directly called into question the subject matter jurisdiction of the court: is there $5 million in controversy under the Class Action Fairness Act (“CAFA”) if the plaintiff has not alleged an ascertainable loss? Read below for more on this case, and stay tuned for additional developments after supplemental briefing on the CAFA issue.
Pennsylvania Supreme Court Holds the UTPCPA’s “Ascertainable Loss” Requirement Cannot Be Manufactured by Voluntarily Hiring Counsel and Incurring Litigation Costs
In Grimes v. Enterprise Leasing Co. of Phila., LLC, the Pennsylvania Supreme Court held that the retention of counsel to institute suit alone does not constitute “ascertainable loss” under the state’s consumer protection statute. The plaintiff in Grimes had rented a car from an Enterprise branch in Philadelphia and apparently declined to purchase Collision Damage Waiver or Loss Damage Waiver coverage.