By Gerald L. Maatman, Jr., George J. Schaller, and Brett Bohan
Duane Morris Takeaways: On April 15, 2025, in EEOC v. Elevation Labs, LLC, No. 23-CV-00318, 2025 U.S. Dist. LEXIS 73702 (D. Idaho Apr. 15, 2025),Judge Lynn Winnmill of the U.S. District Court for the District of Idaho denied Elevation Lab’s untimely motion to strike punitive damages for the EEOC’s failure to comply with Idaho state law. The EEOC lawsuit asserts allegations of retaliation after a former employee complained of discrimination.
This ruling illustrates the significance of asserting timely defenses and that federal courts analyze procedural motions, including motions to strike, with strict adherence to the operative federal rule of civil procedure. In this case, the Court relied on Defendant’s failure to demonstrate striking the EEOC’s prayer for punitive damages was warranted under procedural rules.
Case Background
On July 7, 2023, the EEOC, on behalf of charging party Rachel Johnson, filed a lawsuit against her former employer, Elevation Labs, LLC (“Elevation”) regarding allegations of retaliation under Title VII of the Civil Rights Act of 1964. The EEOC alleged Elevation retaliated against Ms. Johnson after she complained of discrimination. Id. at *2. The EEOC’s Complaint included allegations for punitive damages against Elevation within its prayer of relief. Id.
On September 18, 2023, Elevation answered the Complaint. Id. After the parties litigated for over a year-and-a-half and engaged in discovery, Elevation moved to strike Plaintiff’s prayer for punitive damages under Federal Rule of Civil Procedure 12(f) on February 26, 2025. Id. Elevation argued the EEOC did not comply with Idaho Code § 6-1604(2), which requires plaintiffs to “obtain court permission before including a request for punitive damages in the complaint,” before it filed suit. Id.
The Court’s Order
The Court denied Elevation’s motion to strike and found the motion failed on two independent grounds, including: (1) the motion was untimely and (2) the motion lacked merit. Id. at *1.
First, under Federal Rule of Civil Procedure 12(f), a party may file a motion to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Id. at *3. In addition, a party must move to strike “within 21 days after being served with the pleading.” Id. Elevation however did not move to strike until almost 17 months after service of the Complaint, and therefore, the Court denied the motion as untimely. Id.
Second, the Court held that, even if it considered the merits of the motion to strike, Elevation’s motion still failed. Id. In liberally applying Rule 12(f), the Court determined “whether the prayer for punitive damages should be stricken because the EEOC did not comply with the gatekeeping mechanism in [the] Idaho Code § 6-1604(2) – the motion lacks merit.” Id at *4. The Court opined that the EEOC asserted a federal claim in federal court, “[w]hich of course means that federal law governs the substance and procedure of its claim.” Id. Elevation did not dispute this rule but nevertheless contended federal law “is silent with respect to any pleading standard or procedural prerequisite,” so the Idaho Code must fill “the silence.” Id.
The Court disagreed. The Court instead held the only prerequisite to requesting punitive damages in Title VII cases requires the EEOC to plead “sufficient factual matter to permit a reasonable inference that defendant engaged in intentional discrimination with malice or reckless indifference to plaintiff’s federally protected rights.” Id. at *5. The Court further held that Federal Rule of Civil Procedure 8(a)(3) fills the silence and enables litigants to seek “different types of relief” in their pleadings permitting plaintiffs to seek punitive damages without first seeking court permission. Id.
In sum, the Court determined that state procedural law on the ability to request punitive damages had no place in federal court proceedings involving federal law claims. See id. Instead, federal substantive and procedural law exclusively govern such claims. See id. at *6. Therefore, the Court denied Elevation’s motion to strike the EEOC’s prayer of relief for punitive damages finding Elevation’s reliance on Idaho state law was misplaced and its motion was untimely. Id.
Implications For Employers
The Court’s ruling in Elevation Labs signals the EEOC’s continued litigation enforcement efforts in federal courts for retaliation claims and its pursuit of all available damages.
This case demonstrates the pitfalls of moving under inapplicable state court rules in federal court. Here, the Court rejected Elevation’s attempt to inject state court procedural requirements and the Court disagreed that state statutory requirements impact federal claims under Title VII.
Employers, when embroiled in EEOC litigation, must analyze their defenses swiftly to assert a timely defense and to ensure that defense is applicable. Otherwise, Employers may find themselves moving too late and, without defenses, creating exposure in already difficult litigation.
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Sean McConnell and senior associate Daniel Selznick with their discussion of the key trends analyzed in the 2025 edition of the Antitrust Class Action Review, including the rise of pricing algorithm claims and notable class certification rulings.
Bookmark or download the Antitrust Class Action Review – 2025, which is fully searchable and viewable from any device.
Jerry Maatman: Welcome to our listeners. Thank you for being here today for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today are Sean McConnell, the chair of the Duane Morris Antitrust and Competition Group, and senior associate Daniel Selznick, who are both from our Philadelphia office. Gentlemen, thank you for being on the podcast today.
Sean McConnell: Thank you, Jerry, happy to be part of the podcast.
Daniel Selznick: Yeah, thanks, Jerry. Glad to be here.
Jerry: Today on the podcast we’re discussing the recent publication of this year’s edition of the Duane Morris Antitrust Class Action Review. Listeners can find this e-book publication on our blog, the Duane Morris Class Action Defense Blog. Sean, can you tell our listeners a little bit about this desk reference publication?
Sean: Absolutely, Jerry. In 2024, class action litigation involving antitrust claims had several key developments. Most antitrust class actions are settled before trial, and one of the most crucial phases in the cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical. To assist with understanding what this means for employers facing antitrust claims, Duane Morris has released the Antitrust Class Action Review for 2025, which analyzes the key rulings and litigation developments from 2024, and the significant trends that are apt to impact these types of actions in 2025. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.
Jerry: I’ve always thought and viewed class certification decisions as the Holy Grail in these sorts of cases. Daniel, what in your mind are the takeaways from the publication with regard to litigation in this space over the past year?
Daniel: Sure. So, one of the most notable shifts we’ve seen is the rise in cases involving pricing algorithms, information sharing, and data management. This trend really mirrors the technological evolution within organizations. So as businesses rely more heavily on automated pricing and complex data systems, plaintiffs’ lawyers are adapting their strategies to challenge those tools under antitrust laws.
Jerry: Sean, in your experience, how are these new strategies playing out in the courts? How did the plaintiffs do this past year?
Sean: Great question, Jerry. We saw a major development in the Gibson v. Cendyn Group case in the Ninth Circuit, where the Department of Justice actually stepped in. They argued that certain types of information sharing can be illegal even if there’s no explicit agreement on prices. That’s a pretty aggressive position. And while it’s yet to be clear if courts will accept it, I’d expect that stance to influence the plaintiffs’ bar going forward. And despite the change in administration, we’ve seen consistent positions from both DOJ and FTC with respect to information sharing going forward in 2025.
Jerry: Very interesting in terms of how that theory evolved. Daniel, what about labor market cases that in the year before had been very, very hot – how did those turn out over the last 12 months?
Daniel: So, in contrast to recent years, 2024 actually saw fewer challenges related to labor market restraints. And one possible reason is the DOJ’s limited success in prosecuting those cases which might be giving plaintiffs pause before jumping into that area.
Jerry: Let’s pivot to the issue of class certification, that Holy Grail of the plaintiffs’ bar. Sean, I understand there was quite a bit of activity this year in the pharmaceutical space.
Sean: Yes, absolutely, Jerry. Once again, Big Pharma and life sciences remained a core focus for antitrust class actions. A big factor is the structure of the pharmaceutical industry – when the supply chain and harm mechanism are relatively straightforward, courts are more likely to certify a class. For example, In Re Lipitor and In Re Actos, both cases from mid-to-late 2024, we saw the courts granting class certification based on those clearer market structures.
Jerry: Daniel, one of the things we’ve seen in other spaces is a huge battle over predominance, and how defendants latch onto that particular defense to sometimes prevent class certification. How did that play out in this space over the past 12 months?
Daniel: Yeah. So, Jerry, that’s still a major battleground courts are doing deep dives into whether plaintiffs can provide class wide evidence that shows that common issues predominate. So it’s not just a box-checking exercises – judges are really scrutinizing the proposed evidence, and that was a recurring theme in 2024.
Jerry: How about on the issue of numerosity under Rule 23(a)(1) in terms of how that’s played out in the antitrust sector?
Daniel: Sure. So you know, the numerosity requirement provides that plaintiffs must show that it’s impractical to join all members individually. And in antitrust cases, courts tend to say that fewer than 20 members likely won’t cut it, but over 40 usually will. So, for classes in that 20-to-40 range, courts look at other factors. A great example from this past year is the In Re EpiPen Direct Purchaser Litigation. And in that case, even where there was a proposed class of over 40 members, all of which, whom you know, had pretty large claims, the court said that joinder was not impractical, and therefore denied certification, so it shows how fact-specific the analysis can be.
Jerry: We, of course, studied class certification rates across the board in all spaces of litigation, and the plaintiffs’ bar did pretty well, and certified cases at a range of about 65 to 66% across the board. How did things go for the plaintiffs’ bar in the antitrust sector?
Sean: In 2024, Jerry, it was pretty consistent with respect to antitrust cases where class certification was granted in 68% of those actions, a total of 15 out of 22 motions from the past year. So, while a majority of plaintiffs were successful, there’s still a significant portion facing uphill battles, especially where the evidence class structure and damages and market dynamics are quite complex.
Jerry: That’s an interesting look at inside baseball statistics. I’ve always thought that the business model of the plaintiffs’ bar in this area is identify and file the case, certify the case, and then monetize the case. In terms of the study of class action settlements in the antitrust area, how did the plaintiffs’ bar do in 2024?
Sean: Plaintiffs were hugely successful in 2024, although not quite as successful as 2023. The top 10 antitrust class action settlements totaled just over $8.42 billion in 2024, compared to $11.74 billion in 2023, which had been a nearly threefold increase over the 2022 amount.
Jerry: Those are certainly eye-popping numbers in terms of settlements. My sense is 2025 is apt to see even bigger, if not consistent numbers, in terms of those top 10 antitrust settlements. Well, thank you, Sean and Daniel, for being here today, and thank you listeners for tuning into this week’s Class Action Weekly Wire.
Daniel: Thanks, Jerry. Glad to be on. And thank you, listeners.
Duane Morris Takeaway: Class action litigation involving antitrust claims had several key developments in 2024, despite a relative lack of actual verdicts. Because antitrust remedies often allow recovery of treble damages, the incentive to settle these cases is often paramount. Additionally, plaintiffs are entitled to reasonable attorneys’ fees that may be substantial because of the complexity of this kind of litigation. As a result, most antitrust class actions are settled before trial, and one of the most crucial phase in these cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical.
The class action team at Duane Morris is pleased to present the 2025 edition of the Antitrust Class Action Review. We hope it will demystify some of the complexities of antitrust class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with antitrust class action litigation.
Click here to bookmark or download a copy of the Antitrust Class Action Review – 2025 e-book.
Stay tuned for more Antitrust class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.
By Gerald L. Maatman, Jr., Shannon Noelle, and Ryan T. Garippo
Duane Morris Takeaways: On April 3, 2025, in Salazar, et al. v. Paramount Global, d/b/a 247Sports, Case No. 23-5748, 2025 WL 1000139 (6th Cir. Apr. 3, 2025), the Sixth Circuit departed from two other federal circuits (i.e., the Second and Seventh Circuits) in its interpretation of “consumers” covered by the Video Privacy Protection Act (“VPPA”), and affirmed the district court’s dismissal of a putative class action on the basis that only consumers of audio-visual related materials are covered by the protections of the Act. The Sixth Circuit’s holding narrows the scope and reach of the statute and is a welcome reprieve for companies offering video content on their websites in connection with advertising technology (“adtech”).
Background
In September 2022, Michael Salazar brought a putative class action against Paramount Global (i.e., the owner of 247Sports.com), claiming that the media company violated the VPPA because it installed Meta Pixel on its website. Salazar alleged that Meta Pixel, a form of adtech, tracked his and putative class members’ video viewing history and disclosed it to Meta without his consent. He sought to represent a putative class of subscribers to 247Sports.com’s newsletter which contained links to articles (that could contain videos), photographs, and other content.
Salazar, however, did not allege that he was a subscriber of audio visual materials as contemplated by the statute. 18 U.S.C. § 2710(a)(1)-(4). To the contrary, he alleged that he was a subscriber of 247Sports.com’s newsletter, and that 247Sports.com separately provided audio visual materials to its customers. Salazar v. Paramount Global, 683 F.Supp. 3d 727, 744 (M.D. Tenn. 2023). But, the district court determined that Salazar’s interpretation of the VPPA was “unavailing.” Id. Indeed, “there [was] no allegation in the complaint that Plaintiff accessed audio visual content through the newsletter (or at all, for that matter). The newsletter [was] therefore not audio visual content, which necessarily means that Plaintiff [was] not a ‘subscriber’ under the VPPA.” Id.
Salazar is no stranger to this legal issue. Last year, in a virtually identical case, the U.S. District Court for the Southern District of New York, dismissed a putative VPPA class action brought by Salazar on the basis that “signing up for an online newsletter did not make Salazar a VPPA ‘subscriber.’” Salazar v. National Basketball Association, 118 F.4th 533, 536-37 (2d Cir. 2024). Salazar appealed that decision to the Second Circuit, which reversed the lower court, and held that the VPPA protects “consumers regardless of the particular goods or services rented, purchased, or subscribed to.” Id. at 549. If blog readers would like to learn more about the Second Circuit’s decision, a link to our post is included here.
Salazar appealed this case on the same grounds as his Second Circuit win and asked the Sixth Circuit to determine whether he was considered a “subscriber” and thus, a “consumer” under the VPPA.
The Sixth Circuit’s Decision
The Sixth Circuit affirmed the district court’s ruling and agreed that to be considered a “consumer” under the VPPA an individual must purchase goods or services of an audio-visual nature.
Judge John Nalbandian, writing for the Sixth Circuit, reasoned that the term “subscriber” must be viewed in its broader context, and in harmony with the other words in the statute such not to render associational words inconsistent or superfluous. Applying these canons, the Sixth Circuit explained that the words “goods and services” informed the meaning of the term “subscriber.” By using the terms together, the statute was intended to encompass only audio-visual goods or services provided by a video tape service provider, as opposed to any and all goods and services, provided by that company. In other words, if a video tape service provider makes “hammers” or a “Flintstones sweatshirt or a Scooby Doo coffee mug,” a consumer of such goods would not fall under the purview of the VPPA. Paramount Global, 2025 WL 100139, at *10.
In so holding, the Sixth Circuit departed from the Second and Seventh Circuits, including the near-identical lawsuit brought by Salazar himself, that found the phrase “goods or services” to encompass all goods and services that a provider places in the marketplace. Judge Rachel Bloomekatz, penning the dissent, reached the same conclusion. She opined that, under the majority’s interpretation, a provider could “stitch[] together” non-video transactions to provide information about audio-visual transactions that could reveal a consumer’s personal information. Id. At *12. The majority found such concerns unavailing and reasoned that the type of information available from the videos on Paramount Global’s website was not inherent to the newsletter and was “accessible to anyone, even those without a newsletter subscription.” Id. at *7.
As a result, the Sixth Circuit affirmed the district court’s decision to dismiss the complaint without leave to amend.
Implications For Companies
Circuit splits in the federal courts are increasingly rare. It is nearly unprecedented, however, to have a situation where one litigant has created a federal circuit split with himself. Salazar could file one lawsuit in New York and his claims would go forward. But, if the exact same lawsuit was filed in Tennessee, then dismissal would be the proper remedy.
This patchwork system may be difficult for corporate counsel, tasked with ensuring their companies’ adtech compliance, to follow. But, the Sixth Circuit’s decision in Paramount Global is better than the alternative and could pave the way for other circuits to similarly limit the scope of the VPPA in their relevant jurisdictions.
In the meantime, however, corporate counsel for companies based in Kentucky, Michigan, Ohio, and Tennessee can rest a little easier knowing that – they can offer newsletters without worrying that adtech, installed solely on their websites – will somehow subject them to draconian VPPA liability.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, and Gregory Tsonis
A Most Transformative Year: New EEOC Litigation And Enforcement Priorities
Mark your calendars for our biannual webinar analyzing the latest EEOC developments on Monday, May 5, 2025 from 12:00 p.m. to 12:30 p.m. Central. Reserve your virtual seat for the program here.
Join Duane Morris partners Jerry Maatman, Jennifer Riley, Alex Karasik and Greg Tsonis for a live panel discussion analyzing the latest impact of the dramatic changes at the U.S. Equal Employment Opportunity Commission, including its new strategic priorities and the array of EEOC lawsuits filed in the first six months of fiscal year 2025. In its annual performance report for FY 2024, the EEOC touted a record $700 million in monetary recoveries for workers through litigation and administrative avenues. Moving into FY 2025 with a $33.22 million budget increase for the EEOC and significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative.
Our panel will empower corporate counsel, human resource professionals and business leaders with key insights into the EEOC’s latest enforcement initiatives and strategies designed to minimize the risk of drawing the agency’s scrutiny in what projects to be a transformative year for the Commission.
Stay tuned for the 2025 edition of Duane Morris’ EEOC Litigation Review and key EEOC-related analysis on the Class Action Weekly Wire Podcast.
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Shireen Wetmore and special counsel Shannon Noelle with their discussion of the key trends analyzed in the 2025 edition of the FCRA Class Action Review, including notable Third and Eleventh Circuit rulings shaping related litigation in 2025.
Bookmark or download the FCRA Class Action Review – 2025, which is fully searchable and viewable from any device.
Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner with Duane Morris, and joining me today are Shireen Wetmore and Shannon Noelle. Thanks so much for being here on our podcast.
Shireen Wetmore: Thanks, Jerry, happy to be part of the podcast.
Shannon Noelle: Thanks for having me, Jerry.
Jerry: Today on the podcast we’re discussing the first-ever publication of the Duane Morris Fair Credit Reporting Act, or FCRA, Class Action Review. Listeners can find our new e-book publication on our blog, the Duane Morris Class Action Defense Blog. Shireen, can you tell our listeners about this new publication and desk reference?
Shireen: Absolutely, Jerry. This Review is brand new, and it dives deep into the world of consumer protection laws. Specifically, the Fair Credit Reporting Act (FCRA), the Fair and Accurate Credit Transactions Act (FACTA or the FACT Act), which amends FCRA, and the Fair Debt Collection Practices Act (FDCPA). A lot of alphabet soup here. These statutes have long been fodder for significant litigation, particularly for class actions. So, Duane Morris created this Review to analyze the key rulings and developments in these areas in 2024 and the significant legal decisions and trends that will be impacting this type of class action litigation for 2025. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.
Jerry: Great. Let’s start a little bit with the basics. The FCRA, as enacted by Congress, aims to ensure that consumer reporting agencies act responsibly and fairly, but at the same time it’s been an engine for class action litigation. Shannon, can you give us a quick overview of what our listeners need to know about the FCRA?
Shannon: Absolutely. The FCRA is focused on ensuring that consumer reporting agencies, CRAs, maintain accuracy, fairness, and respect for consumers’ privacy rights. It mandates that CRAs follow reasonable procedures to ensure that consumer reports are as accurate as possible. The law also requires employers to disclose when they’re obtaining a consumer report on an applicant for a job and to follow specific procedures if they decide to take adverse action based on the report. FCRA violations often come down to technicalities – things like failure to provide proper disclosures or obtaining consent incorrectly – and the penalties can be significant, ranging from $100 to $1,000 per violation, with punitive damages up to $2,500. If the violation is deemed willful, because of the way the law is structured, it’s relatively easy for plaintiffs to bring class action lawsuits, especially when there are clear procedural missteps that affect many people. Even if actual damages aren’t proven, these technical violations can still lead to successful lawsuits.
Jerry: Thank you. By contrast, Shireen, what about the FACTA? What are the issues in that particular space of litigation?
Shireen: So, the FACTA amended the FCRA, and it was aimed at enhancing consumer protections. It requires consumer reporting agencies, just as Shannon mentioned, to present information in a clear, more understandable manner. And the FACTA really emphasizes the need for better protections against identity theft under the FCRA and the FACT Act. There are significant penalties, nuanced protections that can lead to very large lawsuits with what may seem like only informational injuries. However, there have been some significant Supreme Court rulings over the years that have limited the scope of these lawsuits, and especially when it comes to proving actual harm or injury in fact.
Jerry: Thanks, and then let’s address the last one in Chapter 12 – the alphabet soup statutes – the FDCPA. The statute governs debt collection practices, and while it doesn’t address credit reporting directly, it’s closely related, because debt collectors obviously rely upon credit reports when they pursue collection. The FDCPA regulates how they can communicate with individuals, the information they must disclose, and their conduct during the collection process. In essence, it’s a companion statute that protects consumers in the broader context of credit and debt. What were the notable trends under these statutes over the last 12 months?
Shannon: One major trend we’ve seen in 2024 is a reduction in class certification success rates. Courts granted class certification in only 38% of FCRA, FACTA, and FDCPA cases, which is down from 75% in 2023. This could be partly due to the 2021 TransUnion decision and the increasing complexity of FCRA violations. Employers and consumer reporting agencies are now more careful about complying with technical requirements and plaintiffs are facing higher hurdles improving harm.
Shireen: Yeah, and another thing we’re seeing is the rise of state level laws that track the FCRA, but they impose even stricter standards. I’m sitting here in California – we definitely have some states like California, New York, and Texas, they have their own consumer credit reporting laws – and companies need to stay on top of both the federal and the state regulations to avoid potentially very significant liability.
Jerry: As our clients see in many spaces, there’s quite a patchwork quilt of laws and the legal environment is under constant change and flux. Were there important rulings in this space in 2024 that our listeners need to keep in mind?
Shannon: There certainly were. The Third Circuit issued a significant ruling in favor of the defendant in Barclift, et al. v. Keystone Credit Services, LLC. The defendant was a debt collector there, and engaged RevSpring, a third-party vendor, to print and mail debt collection notices to individuals, including the plaintiff. The plaintiff alleged defendant shared her personal information with RevSpring without her consent in violation of the FDCPA. The district court dismissed the plaintiff’s allegations without prejudice, ruling that she lacked standing because her alleged injuries were not sufficiently concrete, and thus she failed to allege a concrete injury under Article III standing requirements. On appeal, the Third Circuit affirmed the district court’s ruling. The Third Circuit determined that the plaintiff’s intangible harms must have a close relationship to alleged recognized harms for standing purposes, and the Third Circuit concluded that the plaintiff failed to establish standing because she could not show a close relationship between the harm she alleged, which was disclosure of personal information to the mailing vendor, and harms traditionally recognized by disclosure of personal information, including humiliation or embarrassment due to the public disclosure of sensitive information, and the Third Circuit opined that harm from internal disclosures such as that alleged by the plaintiff did not align with harms traditionally recognized in privacy torts that depend on public disclosure, unless there’s a sufficient likelihood of external dissemination.
Jerry: That’s a really interesting ruling, and certainly shows the range and kinds of information that are protected and what goes beyond just the mere scope of the information. Are there any other appellate rulings, Shireen, that you think our listeners ought to keep uppermost in mind for the coming year?
Shireen: Yeah, the Eleventh Circuit ruled on standing issues in Santos, et al. v.Healthcare Revenue Recovery Group, LLC. You know, these standing issues have been getting ironed out, up and down to the Supremes and back, quite a bit over the last 10 or so years. Here, the plaintiffs allege that the defendant provided inaccurate credit reports. The district court initially denied class certification, reasoning that consumers seeking statutory damages for willful FCRA violations needed to prove actual damages. The plaintiffs argued that they could recover statutory damages without proving actual damages and the case focused on interpreting 15 U.S.C. § 1681n(a)(1)(A), which allows consumers to seek statutory damages ranging from again $100 to $1,000 for willful violations. And on appeal, the Eleventh Circuit clarified that under statute, consumers do not need to prove actual damages to obtain statutory damages. The court noted that the statute distinguishes between the actual damages required under one provision and the damages available under the second, which does not require proof. So, the Eleventh Circuit’s interpretation aligned with decisions from other circuits, and furthermore, the court ruled that the district court’s denial of class certification was based on incorrect interpretation of the damages provision, and remanded the case for further proceedings. So, we’ll be keeping an eye on that as well.
Jerry: In terms of settlement dollars overall in 2024, how successful was the plaintiffs’ bar in monetizing their class claims.
Shireen: So, there was actually a big drop in the numbers recovered in the top 10 cases in 2024 over 2023. In2024, the top 10 FCRA FACT Act, and FDCPA. Settlements totaled $42.43 million, and in 2023, that was a $100 million. So, more than double. Alittle bit surprising, but we’ll look to see what happens in 2025.
Jerry: Yeah, my prediction is in 2025 – my sense is those numbers are going to double, if not triple. and that’ll be an area that we’ll be tracking with interest in the Duane Morris Class Action Review for 2026. Well, thank you both for being here and for sharing your thought leadership with respect to class action litigation in this space. Listeners, please stop by our blog for a free copy of the FCRA Class Action Review e-book.
Shannon: Thanks so much for the opportunity, Jerry.
Duane Morris Takeaway: Courts have often noted that Fair Credit Reporting Act (FCRA) violations lend themselves to resolution through class action litigation, and FCRA class actions have increased partially because of the Fair and Accurate Credit Transactions Act (FACTA) amendments, passed in 2003. In 2024, in FCRA cases, the class action plaintiff’s bar continued to look for any technical failure of an employer to provide disclosures or obtain proper authorization from an applicant. Of note, although these authorization and disclosure requirements may appear to be relatively straightforward, case law has created additional requirements separate and distinct from the plain statutory requirements, which may not be obvious from a plain and ordinary reading of the FCRA alone.
To that end, the class action team at Duane Morris is pleased to present the inaugural edition of the FCRA Class Action Review. We hope it will demystify some of the complexities of FCRA, FACTA, and Fair Debt Collection Practices Act (FDCPA) class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with these types of class action litigation.
Click here to bookmark or download a copy of the Duane Morris FCRA Class Action Review – 2025 eBook.
Stay tuned for more FCRA/FACTA/FDCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Katelynn Gray and associate Ryan Garippo with their discussion of the key trends analyzed in the 2025 edition of the TCPA Class Action Review, including notable rulings in the Eleventh and Second Circuits shaping related litigation in 2025.
Bookmark or download the TCPA Class Action Review – 2025, which is fully searchable and viewable from any device.
Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are Katelynn Gray and Ryan Garippo. Welcome to the podcast.
Katelynn Gray: Thanks, Jerry, happy to be a part of the podcast.
Ryan Garippo: Thanks for having me, Jerry
Jerry: Today on the podcast we’re discussing the desk reference and publication of the Duane Morris Class Action Defense Group that was launched on the Telephone Consumer Protection Act, known as the TCPA. It’s a guide for corporate counsel on the ins and outs of the statute and what’s happened over the past year, and what we see coming in the future. Katelynn, can you tell our listeners about this publication?
Katelynn: Absolutely, Jerry. So, the TCPA has been a long focus of litigation, particularly for class actions. The class action team of Duane Morris released the second edition of the TCPA Class Action Review earlier this week. This publication analyzes the key TCPA-related rulings and developments in 2024, and the significant legal decisions and trends impacting this type of class actions for 2025. We hope that companies will benefit from this resource in their compliance with these ever-evolving laws and standards. As someone that’s worked on this chapter for the last couple of years, I can tell you there’s been a lot of updates.
Jerry: Interestingly, in 2024 I would characterize what occurred as a mixed bag – victories for plaintiffs, victories for defendants. Ryan, how are the classes treated by federal courts in terms of certification rulings over the past year?
Ryan: There are wins on both sides, Jerry, but defendants came out way ahead in terms of getting classes certified – courts granted motions for class certification only 37% of the time, they denied class certification motions 63% of the time. So that’s way lower that last year when plaintiffs’ bar was much more successful in obtaining class certification, with courts granting 70% of certifications, so we saw a big swing from last year to this.
Jerry: That’s quite an interesting turn of events from 2023 to 2024. Katelynn, were there any notable appellate court rulings that deciphered the contours of TCPA claims?
Katelynn: There was, actually. So, the Eleventh Circuit issued 123-page opinion that offered a treasure trove of insights regarding the need for constant vigilance when it comes to TCPA compliance – particularly for employers involved in these types of class actions. This was in a case that had been ongoing and that we discussed last year within the framework of Article III standing in the TCPA class actions. The case was called Drazen, et al. v. Pinto. In the most recent ruling, the Eleventh Circuit vacated the district court’s final approval of a settlement of a class action alleging GoDaddy.com, Inc. violated the TCPA by sending unwanted marketing texts and phone calls through a prohibited automatic telephone dialing system. The Eleventh Circuit held the district court abused its discretion by approving the class-wide settlement, which would have provided up to $35 million to pay in class members’ claims and up to $10.5 million to class counsel and attorneys’ fees. The Eleventh Circuit concluded that the district court inappropriately certified the class and shouldn’t have approved the proposed settlement agreement and granted class counsel’s motion for attorneys’ fees. The Eleventh Circuit held that the district court overlooked evidence of collusion between class counsel and GoDaddy’s attorneys, treated the settlement as a common fund instead of a claims-made resolution, and improperly calculated attorneys’ fees after erroneously concluding it was not a coupon settlement. In this instance, the Eleventh Circuit remanded the case back to the district court for further proceedings.
Jerry: Gosh, at 123 pages that’s a virtual war and peace novel for a federal appellate court, and certainly a key takeaway for corporate counsel to realize that even multimillion-dollar TCPA class action settlements can be vaporized on appeal if the i’s are not dotted and the t’s are not crossed in the appropriate way as required by Rule 23. Ryan, I know there was another significant ruling by the Second Circuit in this space last year in the Soliman case. Can you tell our listeners about that decision?
Ryan: Yeah, the ruling was a win for companies that have pre-existing lists of numbers that they use to make calls. In Soliman, the plaintiff filed a class action alleging that the defendant violated the TCPA by sending unsolicited text messages, using an ATDS and an artificial or pre-recorded voice. The plaintiff asserted the defendant had sent several automated marketing text messages to her cell phone using a system that employed a pre-existing list of telephone numbers. Although the plaintiff had previously consented to receive such messages from the defendant, she opted out by texting “STOP.” The plaintiff then contended that she subsequently received another automated message. So, the district court ruled that the defendant’s system did not violate the TCPA because it used a pre-existing list of numbers rather than generating the numbers randomly or sequentially, as the Supreme Court found in Duguid. So, the district court also found that the TCPA’s prohibition against artificial or pre-recorded voice messages does not apply to text messages. The Second Circuit agreed with the District Court. It held that the defendant’s text messaging system did not violate the TCPA and explained that the TCPA prohibits systems that generate random numbers, not those that use pre-existing lists, and that these text messages are not covered by the prohibition on artificial or pre-reported voices. The Second Circuit therefore affirmed the dismissal of the claims.
Jerry: I know this is a hotly contested issue in the circuit, so I would predict in 2025 we’re going to see more rulings on this issue from the other circuits. Maybe even a circuit split that finds its way to the U.S. Supreme Court. I’ve always thought the mantra of the plaintiffs’ bar is file the case, certify the case, monetize the case, and to knock down significant settlements. How did the plaintiffs’ bar do in 2024 when it came to this space in terms of monetizing their cases and pulling down class action settlements?
Katelynn: They did very well in securing high-dollar settlements. In 2024, the top 10 TCPA class actions totaled $84.73 million, which was actually down from the 2023 total of $103 million.
Jerry: That’s a lot of money for a few errant phone calls, and certainly we’ll be tracking these settlements in the coming year in our Duane Morris Class Action Review. Well, thank you both for joining us today and lending your expertise and describing our new desk reference, the TCPA Class Action Review. Thanks so much for being here.
Ryan: Thanks so much for the opportunity, Jerry. Appreciate it.
Katelynn: Thanks for having us, Jerry. Thank you to all the listeners, we appreciate your time.
By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan Garippo
Duane Morris Takeaway: The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of class action litigation. Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.
To that end, the class action team at Duane Morris is pleased to present the 2025 edition of the TCPA Class Action Review. We hope it will demystify some of the complexities of TCPA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with TCPA class action litigation.
Click here to bookmark or download a copy of the TCPA Class Action Review – 2025 e-book.
Stay tuned for more TCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.
By Gerald L. Maatman, Jr., Shannon Noelle, and Anna Sheridan
Duane Morris Takeaways: In Meinert et al. v. Port Authority of Allegheny County, Case No. 2:22-CV-01736 (W.D. Pa. 2025), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania denied class certification for a class of former transit company employees that were allegedly denied medical and religious exemptions to an employer-mandated COVID-19 vaccination policy. In so doing, the Court highlighted opportunities for defendants to defeat class certification by offering proof that the proposed class is amenable to ordinary joinder and that individualized inquiries predominate over common ones in terms of the qualified disabilities, sincerely held religious beliefs, and undue hardship. The ruling is a required read for corporate counsel facing workplace-related class actions.
Background
Former bus drivers and maintenance workers of Pittsburgh Regional Transit filed a class action complaint against the transit company in December 2022 alleging that a company policy issued in early 2022 requiring COVID-19 vaccinations for employees resulted in class members being denied a medical or religious exemption in violation of federal and state law prohibiting discrimination based on a disability or sincerely held religious belief. In total, the transit company received 350 accommodation requests related to its COVID-19 vaccination policy — 54 of which were for medical exemptions and 296 of which were for religious exemptions. The Company formed an Accommodation Review Committee that ultimately granted 13 medical exemption and 30 religious exemption requests to its vaccination policy.
The plaintiffs argued that the exemption review process was a “sham.” As it regards the medical exemption review process, the plaintiffs argued all proposed class members (the “medical exemption class”) were denied a medical exemption because their pre-existing conditions or disabilities did not show a contraindication to the CDC guidelines and the Company did not factor whether the conditions were a recognized disability under the ADA. As it regards its religious exemption review process, the plaintiffs maintained that the Company did not engage in any individualized analysis to determine undue hardship (the “religious exemption class”).
The Court’s Decision
In its Rule 23 analysis, the Court ruled that the medical exemption class failed to meet the numerosity and commonality prerequisites and that the religious exemption class failed to satisfy the commonality and predominance requirements for class certification. The Court found that as the plaintiffs presented no evidence to contradict the Company’s proof that only 12 individuals fell into the proposed medical exemption class, the Court opined that the plaintiffs failed to establish numerosity and demonstrate that joinder of all members was impracticable, particularly given that all class members were employees of the Company in Pittsburgh.
The Court also rejected plaintiffs’ generic arguments that class certification would promote consistent results and judicial economy. The Court further addressed the lack of commonality of the medical exemption class in dicta (as the lack of numerosity was sufficient to dismiss the proposed class) but nevertheless found that determining whether each member of the class had a cognizable disability would be an individualized inquiry that could not be considered on a class wide basis.
With respect to the religious exemption class, the Court found a lack of commonality given that the sincerity of a class member’s religious beliefs and the undue hardship to the Company are both individualized inquiries not suitable for class treatment. The Court rejected plaintiffs’ contention that the Company did not engage in any individual analysis to determine undue hardship, crediting an affidavit submitted by the Company detailing the Accommodation Review Committee’s process and attaching denial letters, which it reasoned illustrated that the Company considered undue hardship on an individual-by-individual basis. For the same reasons, the Court also reasoned that predominance was lacking as to the religious exemption class given that the sincerity of class members’ religious beliefs and undue hardship to the Company would both turn on individualized proof rather than evidence common to all class members.
Implications of the Decision
The Court’s decision underscores the opportunity for defendants to defeat certification by submitting evidence that proposed members of the class are limited and could be easily joined through ordinary joinder procedures and that the proposed class-wide proceeding is not apt to generate common answers as to whether class members are entitled to relief, as opposed to common questions.
Employers implementing similar review processes for exemption requests to company policies are well-advised to document and evidence an individualized process in evaluating and responding to such requests to defend against class action exposure.
