By Gerald L. Maatman, Jr., Kathryn Brown, and Olga A. Romadin
Duane Morris Takeaways: On September 24, 2026, Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio granted Plaintiff’s motion for conditional certification of a proposed collective of workers alleging that time-rounding practices resulted in overtime violations in Garner v. Cleveland Clinic Foundation, Case No. 23-CV-2258 (N.D. Ohio Sept. 24, 2026). Judge Boyko found that Plaintiff had met her burden to show a strong likelihood that workers were similarly situated because she provided testimony, declarations, and an expert opinion that demonstrated that workers across multiple positions and facilities were all subject to the same non-neutral rounding policy. The opinion should be required reading for companies defending wage & hour claims in courts within the Sixth Circuit.
Case Background
Plaintiff Deborah Garner brought a putative class and collective action on behalf of herself and all other similarly situated on November 21, 2023. Plaintiff, a patient registrar and patient access specialist employed by Defendant, the Cleveland Clinic Foundation (“CCF”), alleged that CCF failed to pay non-exempt employees overtime at the statutory rate for all hours worked over forty, in violation of the Fair Labor Standards Act (“FLSA”) as well as Ohio’s wage and hour laws. Plaintiff additionally claimed that CCF failed to pay all wages owed to workers due to improper rounding and/or editing of hours worked in Defendant’s timekeeping software, and failed to keep accurate time records. Id. at 1-2.
On January 5, 2024, Plaintiff filed an amended complaint as well as a motion asking the Court to facilitate notice to other similarly-situated potential plaintiffs, and the Court granted the motion after striking Plaintiff’s class claims.
The Court’s Ruling
Judge Boyko granted Plaintiff’s motion to facilitate notice to putative collective members on determining that there was a strong likelihood that the proposed collective members are similarly situated because the plaintiffs had met their burden to show that non-exempt hourly employees were all subject to the same rounding policies. Id. at 1. Plaintiffs provided declarations of 5 opt-in plaintiffs, deposition testimony, and an expert opinion regarding CCF’s rounding policies and practices. Id. at 1-2. Plaintiff’s expert testified that CCF’s “rounding practices worked against the employees nearly 80 percent of the time.” Id. at 20.
Defendant argued that the scope of the proposed class and the variety of positions involved gave rise to individualized questions and issues, but the Court was unconvinced. Id. The Court determined that this evidence was enough to have “shown the rounding practice applied broadly to all the non-exempt employees” and was in line with the U.S. Supreme Court’s express determination that representative evidence in collective actions is permissible. Id.
However, the Court, citing to Plaintiff’s evidence, which showed that about 17% of employees suffered no injury, concluded that they lacked standing and were not similarly situated because they could claim no injury under the FLSA. Id. at 21.
Defendants further argued that approximately 4.5% of CCF’s non-exempt hourly employees were subject to “flex rounding” or “quarter rounding” policies and were therefore not similarly situated because they were not subject to the general rounding policy at issue. The Court found that Defendant’s argument only supported Plaintiff’s argument that CCF had a system-wide rounding policy, and that it was not applied to “select employees or departments.” Id. at 22. The Court concluded that the evidence showed “a consistent, systemwide policy of rounding and that rounding heavily favored Defendant,” and therefore that Plaintiffs met their burden to show the putative collective was similarly situated, and granted Garner’s motion for a Court-facilitated notice.
Implications for Companies
In light of the opinion in Garner, companies with a workforce of non-exempt employees are well-advised to take stock of their timekeeping policies and practices, particularly when they operate multiple facilities and utilize timekeeping systems with rounding features. Federal courts in the Sixth Circuit scrutinize any such policies to determine whether putative collective action members are subject to the same practices, and the likelihood of plaintiffs meeting the “strong likelihood” standard is greater when such policies are generally applicable across the employer’s sites and positions. A strong defense often features a showing that a company’s timekeeping policies and practices vary by position, department, and facility, and may be pointed to in arguing that putative collective members are not similarly situated enough to warrant collective-wide treatment.
Duane Morris Takeaways: I had the privilege and honor of presenting on September 30 at the Perfect Law Class Action Conference at New York University School of Law. Practitioners and law professors from Europe, Canada, and the United States convened at NYU to debate cutting-edge class action issues involving privacy, securities fraud, products liability, and antitrust laws. The “debate” between the plaintiffs’ bar, defense lawyers, and academics made for an engaging and enlightening day. The full agenda is here – https://perfectlaw.co.uk/
Overview
Dean Troy McKenzie of NYU School of Law gave the keynote address that identified the array of unanswered and evolving legal issues in the class action space. Along with Professor Samuel Issacharoff, Den McKenzie set the stage for discussion about the quickly and ever-evolving law in this area. At the same time, artificial intelligence is fueling change and accelerating developments on all continents. “AI” became a consensus concept during all the conference presentations in terms of its potential to transform class action litigation issues.
Comparative Jurisdictions
In a follow up panel that included jurists from Europe and the United States, Judge Robert Dow – presently chief counsel for Chief Justice John Roberts of the U.S. Supreme Court and formerly a Judge of the U.S. District Court for the Northern District of Illinois – asserted that tools to manage complex litigation are functioning well, despite their genesis some 60 years ago. Both Supreme Court decisional law and Congressional enactments – such as the Class Action Fairness Act of 2005 – created heightened pleading requirements for litigating class actions and a preference for most of such cases being docketed in federal courts. As a result, class action litigation is growing, and federal courts are increasingly encountering cutting-edge class action issues as their caseloads expand.
Justice Benjamin Glustein of the Ontario Superior Court of Ontario observed that class actions likewise are increasing in Canada, and unlike U.S. practice, claims are more apt to be certified, especially dealing with civil rights claims. Canadian class actions, as a result, are thriving.
In terms of Europe, law professor Miguel Ferror of the University of Lisbon and plaintiffs’ lawyers Marc Grossman of Milberg and Luke Streatfield of Hausfeld talked about the rise of magnet jurisdictions in Europe, especially for antitrust claims in the United Kingdom. They opined that selection of jurisdiction is a high-stakes decision point for plaintiffs’ lawyers in Europe. In this respect, certain jurisdictions are not optimal forums for collective redress lawsuits. For example, while Romania follows a regime of 20% presumed damages, they observed, in essence, that “no one litigates in Romania” because they do not trust the courts and legal outcomes there. Litigation funders, they opined, also take a close look at selections of venue and pertinent ethical rules in those jurisdictions in terms of mass or group-wide claims.
Privacy Class Actions
On a panel with three plaintiffs’ privacy lawyers, I spoke on the rise and pervasiveness of privacy violations as a new frontier of class actions. In general terms, I opined that Article III standing requirements are critically important in this space. The case law is not necessarily consistent, the legal state of play is in flux, and many decisions turn on specific factual situations. I offered three distinct takeaways using a recent case from New York as an exemplar.
First – There was an important decision from the Southern District of New York issued in August of last year that goes into great depth into the issues raised by these questions.
In Re Zeta Global Privacy Litig., No. 25 Civ. 5780, 2026 WL 2254612 (S.D.N.Y. Aug. 8, 2025) (granting motion to dismiss a putative class action under ECPA and state consumer protection laws for lack of standing under Rule 12(b)(1) for lack of injury in fact).
Zeta is a company that uses artificial intelligence to develop personalized marketing techniques aimed at helping brands acquire and retain customers. Id. at *1. The named plaintiffs alleged that when they visited storefronts of business that use Zeta for this purpose, those businesses tracked them across the Internet; and that Zeta, and its clients, profited from collecting their PII. Id. Among other things, the plaintiffs alleged “Zeta uses this AI Engine to generate ‘insights’ which its clients can use to identify consumers who “can be targeted for specific lines of business.” Id. at 2. They alleged this creates significant monetary value as measured by how much clients pay to access the dataset. Id. They sought damages under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510, et seq., and various state consumer protection laws. Id. at 1.
In response to the motion to dismiss, the plaintiffs argued that they pled two privacy-related harms traditionally recognized as adequate to confer standing: (1) invasion of privacy – at common law referred to as public disclosure of “private facts,” and (2) “intrusion upon seclusion. Id. at 4. They also argued: (3) because defendants profited from monetizing their PII data and harmed “plaintiffs’ electronic device ‘resources,’ and caused a loss of control of their data.” Id. at *4.
On the first claim – disclosure of private information – the court explained that in the Second Circuit, the Article III standing analysis requires either “’actual injuries’” resulting from the disclosure or ‘a substantial risk of harm’”
See FritzCo LLC v. Verizon Commc’ns Inc., No. 21 Civ. 10432, 2026 WL 734776, at *4 (S.D.N.Y. Mar. 16, 2026). Id. at 5.
A “substantial risk of harm’ is determined by “whether the type of data that has been exposed is sensitive such that there is a high risk of identity theft or fraud.”
McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 303 (2d Cir. 2021). Id. at 5.
This turns on whether it constituted “sensitive information” – id. at 6 – which the court noted does not include data like addresses, phone numbers, email addresses, and IP addresses.
Cooper v. Bonobos, Inc., No. 21 Civ. 854, 2022 WL 170622, at *6 (S.D.N.Y. 2022).
It also does not include “partial credit card numbers” and “password histories” (id.) because they are unlikely to cause an injury that was “certainly impending” or suggesting a “substantial risk the harm will occur” the standards set forth in the Cooper case. This was because of “the fragmented nature of the data and the age of the information (e.g. old passwords—that were captured.” (Id.)
On the other hand, a plaintiff arguably does have Article III standing for state law claims if credit card information is taken which, along with other stolen personal information, enables third parties to complete unauthorized transactions.
FritzCo LLC v. Verizon Commc’ns Inc., No. 21 Civ. 10432, 2026 WL 734776, at *4 (S.D.N.Y. Mar. 16, 2026).
And if the content of emails is sold, that is sufficient to establish standing for federal privacy claims if it contains information such as sensitive PII.
Cooper v. Slice Techs., Inc., No. 17 Civ. 7102, 2018 WL 2727888, at *2-3 (S.D.N.Y. June 6, 2018).
See also In re Christie’s Data Breach Litig., 767 F. Supp. 3d 12, 16-18 (S.D.N.Y. 2025) (finding disclosure of plaintiffs’ full names, passport numbers, and driver’s license numbers sensitive).
The court concluded that the named plaintiffs in the Zeta litigation did not provide enough specificity in their pleading to establish Article III standing. They did not state the nature of the PII allegedly collected and analyzed by the AI learning model, which the court explained was fatal to their complaint:
“It does not allege that credit card information, medical information, Social Security numbers, or any other data otherwise recognized by courts as sensitive—was disclosed. It hypothesizes that Zeta might possess “2,500” pieces of information about these plaintiffs, and that “Zeta has likely stored more information than what is publicly known.” FAC ¶¶ 67, 85. But such conjecture cannot support standing.”
In Re Zeta at *6.
Second – Other courts have held that the disclosure or capture of mere browsing activity, without more, is also not sufficient for a concrete injury.
Bradshaw v. Lowe’s Cos., No. 25 Civ. 742, 2025 WL 3171740, at *5 (S.D. Cal. Nov. 12, 2025) (collecting cases and observing combination of browser information with other information captured by tracking pixels did not demonstrate a concrete injury to show Article III standing);
Smidga v. Spirit Airlines, Inc., No. 22-CV-1578, 2024 WL 1485853, at *4 (W.D. Pa. Apr. 5, 2024) (“[C]ourts have held that even the collection of basic contact information by [ ] software or where the plaintiffs merely visited the website are not [ ] concrete harms.”).
Magliocca v. United Healthcare Servs., No. 25-CV-3388, 2026 WL 878694, at *4 (E.D. Cal. Mar. 31, 2026) (“button clicks, page visits, session lengths, URLs, and IP addresses” were the kind of “non-sensitive browsing activity on a single website” that courts have repeatedly found insufficient to establish a concrete injury under the ECPA and state law).
Third – the disclosure of private information claim in the Zeta case was also dismissed because the court concluded plaintiffs inadequately pled any harm whatsoever from the profit claim and the potential to serve targeted ads to the plaintiffs and the putative class. The complaint did not allege any named plaintiff received any targeted advertising or were otherwise affected, let alone harmed, by it.
In Re Zeta, at *7.
Conclusion
Class actions are wide and varied and are increasing in number. The stakes and risks for Corporate America have never been higher. The panel presentations at the Perfect Law Conference underscored these issues, and predicted more changes fueled by AI.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Daniel D. Spencer, and Alex W. Karasik
Duane Morris Takeaway: In FY 2026 (October 1, 2025 to September 30, 2026), the EEOC’s litigation enforcement activity experienced a modest uptick compared to FY 2025. By the numbers, FY 2026 concluded with 99 lawsuits filed, marking an increase from the 94 lawsuits filed in FY 2025. Although the Commission remains well below its modern enforcement peak of 217 lawsuits filed in FY 2018, the increase suggests that the EEOC has stabilized its litigation program after several years of fluctuating enforcement activity.
Overall filing totals remain comparatively low by historical standards. However, one common theme of EEOC-initiated litigation holds true: the importance of location and industry. Our analysis of the FY 2026 litigation data demonstrates that the Commission maintained an active enforcement presence while directing its resources toward targeted priorities involving disability discrimination, pregnancy-related claims, religious discrimination, and employers in several key industries.
In sum, while the EEOC is not filing lawsuits at the pace seen during prior administrations, the Commission continues to pursue strategic enforcement litigation. Employers should continue monitoring developments closely — particularly in the geographic regions (i.e. Chicago and Philadelphia) and industries (i.e. hospitality and retail) mentioned below — and ensure compliance with all federal anti-discrimination laws and EEOC initiatives.
Lawsuit Filings Based On Month And Year
The EEOC’s fiscal year ends each year on September 30th. As in prior years, the Commission concentrated a substantial portion of its lawsuit filings near fiscal year-end. In September 2026 alone, the EEOC filed 24 lawsuits, accounting for nearly one-quarter of all FY 2026 filings. Although September remained the busiest filing month, the concentration of year-end filings was less pronounced than in FY 2025, when 35 lawsuits were filed during the final month of the fiscal year.
Unlike FY 2025, where filing activity was relatively subdued until September, FY 2026 featured several periods of heightened activity throughout the year. The Commission filed 21 lawsuits in March 2026 and another 18 lawsuits in June 2026. After a slower July, filing activity once again accelerated through August and September, culminating in the customary year-end litigation surge.
The filing pattern suggests a more evenly distributed enforcement strategy throughout the fiscal year compared to previous years, though the EEOC’s traditional year-end filing push remained intact.
Comparing FY 2026 to prior years, the EEOC filed more lawsuits than FY 2025 (94 filings), but substantially fewer than FY 2024 (111 filings) and FY 2023 (143 filings). Although overall litigation levels remain significantly below historical highs, the increase in FY 2026 demonstrates a renewed willingness by the Commission to pursue federal court enforcement actions.
Lawsuit Filings Based On EEOC District Offices
In addition to tracking total filings, we closely monitor which of the EEOC’s 15 district offices are most actively initiating litigation. In FY 2026, Chicago emerged as the most active litigation district office with 14 filings. Philadelphia followed closely with 12 filings, while Phoenix recorded 9 filings. Atlanta, Dallas, Indianapolis, and St. Louis each filed 7 lawsuits. Houston had 6 filings, while Birmingham, Charlotte, Los Angeles, and San Francisco each recorded 5 filings. Miami and New York each filed 4 lawsuits, and Memphis had the lowest total with 2 filings.
Like prior years, the Chicago and Philadelphia District Offices remained the primary drivers of EEOC litigation activity nationwide. Chicago increased its enforcement activity from 11 filings in FY 2025 to 14 filings in FY 2026 and reassumed sole possession of the top position among district offices. Philadelphia likewise increased its activity from 11 filings to 12 filings.
Phoenix continued its upward trend, increasing from 7 filings in FY 2025 to 9 filings in FY 2026. Dallas more than doubled its activity, rising from 3 lawsuits in FY 2025 to 7 lawsuits in FY 2026. In contrast, several offices experienced modest declines, including Indianapolis, Houston, and Miami.
Overall, the data demonstrates that EEOC litigation activity remains broadly distributed throughout the country but continues to be concentrated among a handful of particularly active district offices. Employers with significant operations in Chicago, Philadelphia, and Phoenix should remain particularly attentive to EEOC charge activity and enforcement developments within those jurisdictions.
Lawsuit Filings Based On Type Of Discrimination
We also analyze the types of lawsuits the EEOC files in terms of both statutes and allegations to determine how the Commission’s enforcement priorities are evolving.
Statutory Basis
When considered by statute, Title VII again dominated the EEOC’s enforcement portfolio. In FY 2026, the EEOC filed 61 Title VII lawsuits, representing approximately 53% of all statutory filings. This marks an increase from 56 Title VII lawsuits filed in FY 2025.
ADA litigation remained the second-largest category, with 33 filings compared to 35 in FY 2025. While disability discrimination continues to represent one of the Commission’s principal enforcement priorities, ADA filings declined slightly in absolute numbers year-over-year.
One of the most notable developments in FY 2026 involved the Pregnant Workers Fairness Act. The EEOC filed 12 PWFA lawsuits, doubling its FY 2025 total of 6 filings. This sharp increase confirms that pregnancy-accommodation enforcement remains a major strategic priority for the Commission.
The EEOC also filed 4 ADEA lawsuits and 4 Pregnancy Discrimination Act lawsuits. Notably, FY 2026 included the Commission’s first filings under both the Equal Pay Act and the Genetic Information Nondiscrimination Act in recent years, with one GINA case and two EPA cases filed.
The growth in PWFA litigation, coupled with the reappearance of EPA and GINA filings, suggests an expanding enforcement focus beyond the EEOC’s traditional Title VII and ADA docket.
Allegation Basis
The EEOC’s most frequently asserted allegations in FY 2026 remained disability discrimination, sex discrimination, and retaliation claims. Disability allegations appeared in 33 lawsuits, sex discrimination allegations appeared in 23 lawsuits, and retaliation claims were asserted in 17 lawsuits.
A significant development in FY 2026 was the substantial growth in pregnancy-related litigation. The EEOC alleged pregnancy discrimination in 16 lawsuits, making pregnancy one of the Commission’s most frequently asserted theories of discrimination.
Likewise, race discrimination claims rebounded dramatically. After only a handful of race-based lawsuits in FY 2025, the EEOC alleged race discrimination in 16 lawsuits during FY 2026. Religious discrimination litigation also increased substantially, appearing in 15 lawsuits.
Together, the increase in pregnancy, race, and religion-based claims suggests the Commission broadened its enforcement focus during FY 2026 while maintaining its traditional emphasis on disability, sex discrimination, and retaliation matters.
Lawsuit Filings Based On Industry
Analysis of FY 2026 filings by industry reveals several notable shifts in the industries most frequently targeted by EEOC enforcement actions.
Hospitality remained the most impacted industry, accounting for 21.3% of all FY 2026 filings. Retail closely followed with 22.5% of filings and experienced one of the largest increases compared to FY 2025, when it represented only 11.3% of lawsuits. The return of Retail as a primary enforcement target marks one of the most significant shifts in this year’s data.
Transportation and Logistics also experienced a substantial increase, accounting for 16.3% of FY 2026 filings compared to 10% in FY 2025. Manufacturing remained steady at 15% of all filings.
Healthcare, by contrast, experienced a meaningful decline. After representing 21.3% of EEOC filings in FY 2025, Healthcare accounted for only 13.8% of FY 2026 lawsuits. Construction also declined modestly from 8.8% to 7.5%.
Another notable change is the emergence of Education among the Commission’s most affected industries, representing 3.8% of all filings.
Overall, the distribution of lawsuits reflects a broader enforcement focus than in FY 2025. While Hospitality remained a consistent target, Retail and Transportation & Logistics experienced the largest increases in enforcement activity. Employers operating in these industries should remain particularly vigilant regarding compliance efforts and internal equal employment opportunity practices.
Looking Ahead To Fiscal Year 2027
Moving into FY 2027, the EEOC appears positioned to continue its targeted enforcement strategy while maintaining a relatively consistent level of litigation activity. Although FY 2026 produced only a modest increase in overall filings, several substantive trends emerged that may foreshadow future priorities.
Most notably, the Commission substantially increased litigation involving pregnancy-related accommodations under the PWFA and expanded its focus on race and religion-based discrimination claims. At the same time, traditional enforcement areas such as disability discrimination, sex discrimination, and retaliation remained central components of the EEOC’s litigation portfolio.
The geographic concentration of filings among the Chicago, Philadelphia, and Phoenix District Offices further demonstrates that employers must pay close attention not only to national EEOC priorities but also to regional enforcement trends.
Given the continued evolution of the Commission’s priorities, employers should expect the EEOC to remain active in pursuing strategic litigation designed to advance its enforcement objectives. Accordingly, employers should continue auditing workplace policies, training programs, accommodation practices, and discrimination complaint procedures to minimize litigation exposure and ensure compliance with federal employment laws.
Key Employer Takeaways
In several respects, FY 2026 represented both continuity and change in EEOC enforcement activity. While overall lawsuit filings increased modestly from 94 to 99 cases, enforcement remained highly targeted and concentrated in specific statutory areas, allegations, industries, and geographic regions.
Perhaps most significantly, the Commission doubled its PWFA filings and substantially increased race, religion, and pregnancy-related litigation. Disability discrimination, sex discrimination, and retaliation claims remained cornerstone enforcement priorities, while Retail and Transportation & Logistics emerged as increasingly significant enforcement targets.
Although total litigation activity remains well below pre-pandemic levels, FY 2026 suggests the EEOC has found a stable enforcement footing and continues to deploy its litigation authority strategically. As a result, employers should remain proactive in ensuring compliance with federal anti-discrimination laws and closely monitor EEOC enforcement developments throughout FY 2027.
Finally, employers can and should expect the EEOC to start paying closer attention to the use of AI in the hiring and recruiting processes. On the eve of federal government midterm elections, AI is front and center in terms of hot-button issues. The Commission’s enforcement priorities are apt to follow suit. Employers should take a proactive approach to making sure they ethically and responsibly incorporate AI into their employment practices in compliance with federal anti-discrimination laws.
By Gerald L. Maatman, Jr., Justin R. Donoho, and Hayley Ryan
Duane Morris Takeaways: On September 23, 2026, in the case of In Re TikTok, Inc., Minor Privacy Litigation, No. MDL 25-3144, ECF No. 414 (C.D. Cal. Sept. 23, 2026), Judge George H. Wu of the U.S. District Court for the Central District of California issued a tentative ruling (adopted as final on September 24, 2026) denying TikTok’s motion to dismiss the Second Amended Consolidated Class Action Complaint in a multidistrict litigation brought by minors alleging that TikTok collected, shared, and exploited their personal information without parental consent in violation of the Children’s Online Privacy Protection Act (“COPPA”) and related state laws.
The ruling is significant because it rejected TikTok’s argument that two prior nationwide class action settlements – totaling over $93 million combined – barred the plaintiffs’ claims, holding that the record at the pleadings stage did not establish the named plaintiffs’ membership in those prior settlement classes.For companies that have previously settled class actions, the decision underscores the risk that broad settlement releases may not foreclose subsequent litigation where class membership is not clearly established on the face of the pleadings.
Background
This case is one of a series of privacy class actions targeting TikTok and its parent companies, ByteDance Inc. and ByteDance Ltd. The plaintiffs are minors who allege that while under the age of 13, their personal information was collected, shared, and exploited by TikTok without the parental notice and consent COPPA requires for children under 13. The plaintiffs seek to impose liability stretching back to March 28, 2019.
Two prior nationwide settlements form the backdrop of the dispute. The first, T.K. v. Bytedance Technology Co., No. 1:19-CV-07915 (N.D. Ill.), followed the FTC’s 2019 enforcement action concerning COPPA violations by Musical.ly, TikTok’s predecessor, and settled for $1.1 million on behalf of approximately 6 million individuals who used Musical.ly or TikTok before August 22, 2022, while under the age of 13. The settlement included a broad release but no injunctive relief. The second, In Re TikTok, Inc., Consumer Privacy Litigation, No. 1:20-CV-04699 (N.D. Ill.) (the “Privacy MDL”), consolidated lawsuits focused on TikTok’s use of algorithms, facial recognition, and other technologies to collect and transfer personally identifiable user data to servers in China, and settled for $92 million with broad injunctive relief.
In April 2025, the U.S. Judicial Panel on Multidistrict Litigation ordered the transfer of the present actions to the Central District of California. After an initial partial dismissal of claims brought under laws of states without a domiciled plaintiff, the plaintiffs amended, and the defendants moved to dismiss the Second Amended Consolidated Class Action Complaint (“Complaint”), arguing that the T.K. and Privacy MDL settlements barred claims for conduct occurring before August 22, 2022, the cutoff date defining the later T.K. settlement class. The dispositive question was therefore whether the pleadings themselves established that the named plaintiffs fell within those prior settlement classes.
The Court’s Decision
The Court denied TikTok’s motion to dismiss, finding that the defendants failed to establish, on the record available at the pleadings stage, that the named plaintiffs were members of the T.K. class. ECF No. 414 at 8-9.
Even assuming none of the plaintiffs opted out of the prior settlements, the Court found that the defendants still had not shown the plaintiffs belonged to the prior classes in the first place. Id. As the Court stated, “[a] person need not opt out of a class to which that person never belonged.” Id.
The Court also rejected TikTok’s argument that plaintiffs should not be allowed to avoid res judicata simply by “artfully pleading around” the relevant facts. Id. Because a plaintiff’s failure to anticipate and plead around an affirmative defense is not a pleading deficiency, as the Supreme Court explained in Jones v. Bock, 549 U.S. 199 (2007), the Court concluded that even plaintiffs who knew these defenses were coming, and knew their own ages and use histories, were not required to plead around TikTok’s affirmative defenses of release and preclusion, provided they otherwise sufficiently pleaded their causes of action. Id. at 10.
The Court further rejected TikTok’s alternative argument that, regardless of membership in the prior classes, plaintiffs either were precluded from, or lacked Article III standing to pursue, claims for the pre-August 2022 period. Id. TikTok reasoned that uncertainty about whether the named plaintiffs were under 13 and used TikTok before August 22, 2022, does not prevent dismissal because plaintiffs who meet those criteria are bound by the prior settlements, while plaintiffs who did not use TikTok during the relevant period cannot recover for that period and lack standing to represent those who did. Id. The Court disagreed. The Court held that once a named plaintiff establishes individual standing, differences in injuries between the named plaintiffs and absent class members go to class certification rather than standing, the distinction drawn by the Ninth Circuit in Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). Id. at 11. As the Court explained, “[w]hether Plaintiffs can represent class members who experienced that conduct earlier in the proposed Class Period concerns their representative capacity under Rule 23, and the possibility that Plaintiffs used TikTok only after August 22, 2022, does not defeat their standing to pursue the alleged claims.” Id. The Court likewise declined to redefine the class period at the pleading stage, holding that the issue is more appropriately addressed at class certification. Id.
After oral argument on September 24, 2026, the Court adopted its tentative ruling as the final ruling. See ECF No. 416.
Implications For Companies
This decision provides important guidance for any company facing follow-on privacy and/or adtech class action litigation after a prior settlement, by showing that broad settlement releases cannot be enforced at the motion-to-dismiss stage unless the defendant can demonstrate from the pleadings alone that the current plaintiffs were members of the prior class. That is a high bar where the operative complaint does not specify individual plaintiffs’ ages or first-use dates, or other identifying information necessary to determine membership.
Of course, preclusion based on prior settlements is just one tool in a defendant’s kit for defeating class certification in privacy and adtech cases. For example, in the related case of In Re TikTok, Inc., Consumer Privacy Litigation, 713 F. Supp. 3d 470 (N.D. Ill. 2024), the court declined to dismiss in-app browser claims on the basis of the prior $92 million settlement but left the door open to a different result upon further discovery. Id. at 501-02. There, the court observed that “the unusual and as-yet-undisclosed manner and method of the Original Plaintiffs’ post-settlement investigation leaves open the possibility that further information might alter this conclusion — for example, evidence that they recognized both the in-app browser’s risks and the potential to use them as the basis for a wiretapping theory of liability, but deliberately chose not to pursue this opportunity,” adding that “[s]uch evidence would be worth further attention, if not a different result.” Id. at 501. The court reinforced this point by noting that the original plaintiffs’ source code expert had been given “free rein to probe TikTok’s relevant technology” during confirmatory discovery. Id. at 499. Defendants facing successive adtech class actions should accordingly pursue targeted discovery into prior expert analyses and internal communications reflecting awareness of the privacy risks at issue — evidence that, under the court’s reasoning in In Re TikTok, Inc., Consumer Privacy Litigation, could compel preclusion of theories that were available but not pursued in the earlier proceeding.
By Gerald L. Maatman, Jennifer A. Riley, Katherine L. Alphonso, and Caitlin Capriotti
Duane Morris Takeaways: On September 24, 2026, in Alicia Nolen v. PeopleConnect, Inc., No. 24-3894, 2026 U.S. App. LEXIS 29276 (9th Cir. Sept. 24, 2026), a panel for the Ninth Circuit, via an opinion written by Judge Marsha S. Berzon, affirmed an order of the U.S. District Court for the Northern District of California that granted certification of injunctive and damages classes as satisfying both the requirements of predominance and adequacy. Predominance can be established by showing that reasonable inferences based on practical assumptions preclude the need for individualized inquiries. Predominance does not require courts to determine an administratively feasible way to identify class members to satisfy class certification. Furthermore, the Ninth Circuit reiterated that class certification issues must be evaluated separately from merits issues. As to adequacy, the Ninth Circuit held that a defendant cannot undermine adequacy by remedying a named plaintiff’s injury after a lawsuit is filed.
Case Background
PeopleConnect, Inc. (“PeopleConnect”) owns and operates Classmates.com, an online library of more than 450,000 digitized yearbooks. Id. at *5. PeopleConnect built its collection by purchasing copies and accepting yearbook donations from individuals and schools. Id. PeopleConnect then scans each page of these acquired yearbooks, making all text searchable, and uploads a copy to Classmates.com, where users can search for and connect with former classmates and/or others. Id. at *5-6. Notably, individuals who donate yearbooks they own fill out a form authorizing PeopleConnect to use their likeness on Classmates.com. Id. at *5.
The lead plaintiff in this case, Alicia Nolen (“Nolen”), is a California resident whose name and photo was featured in at least one yearbook on Classmates.com. Id. at *8. Nolen contends PeopleConnect violated California’s statutory right of publicity, codified in Cal. Civ. Code § 3344, by using individuals’ names, without consent, to advertise paid subscriptions to Classmates.com. Id. at *8-9. At the core of Nolen’s substantive claims is the sequence of subscription advertisements shown to Classmates.com subscribers, wherein visitors do not initially see subscription advertisements when browsing or searching yearbooks, but if a visitor searches for a particular name and clicks on the resulting thumbnail, the website prompts the visitor to register for a free account. Id. at *7. Once the visitor registers, they will immediately receive an advertisement encouraging them to purchase a subscription. Id. Nolen argues that PeopleConnect violated the statute by using name-search results to drive account registrations and subscriptions sales. Id. at *9. In other words, PeopleConnect “commercially used” individuals’ likeness, requiring consent under the statute, when a name and/or thumbnail image became a publicly accessible part of its advertising workflow. Id. at *9-10.
Nolen moved to certify injunctive and damages classes under Fed. Rule of Civ. Proc. 23(b)(2) and 23(b)(3). Id. at *10. The district court certified the classes, and PeopleConnect appealed under Fed. Rule of Civ. Proc. 23(f), arguing questions of law or fact common to class members do not predominate over those common to individual members, and Nolen is not an adequate representative for the purported class. Id. at *10-11.
The Ninth Circuit’s Analysis
Predominance
PeopleConnect argued predominance was not satisfied for three reasons; the Ninth Circuit disagreed on all three grounds. Id. at *13.
First, PeopleConnect argued that the district court misconstrued section 3344 as allowing claims based on the searchability of an individual on the website, whether or not a search has actually been conducted. Id. at *13. It urged the Ninth Circuit to construe section 3344 as only permitting recovery for claimants who have actually been searched, which requires an individualized showing of evidence. Id. The Ninth Circuit held that this issue goes to the merits of the section 3344 claims, not to whether the class can be certified. Id. at *14.
Second, PeopleConnect argued that the district court further misconstrued section 3344 as allowing claimants to obtain a minimum award of statutory damages without presenting individualized evidence of mental anguish or actual economic harm. Id. at *13. The Ninth Circuit disagreed with PeopleConnect, stating that whether class members suffered an economic injury can be determined on a class wide basis based on reasonable inferences from the practical circumstances. Id. at * 24. It is reasonable to assume that PeopleConnect’s use of the name shows that the name has economic value. Id. at * 22-25. It is also reasonable to assume that a person whose likeness a company seeks to use in connection with advertising could negotiate at least a nominal licensing fee for such use. Id. Thus, a plaintiff deprived of such compensation, no matter how small, has suffered an economic injury. Id.
Finally, PeopleConnect argued that the district court did not identify an adequate “winnowing plan” to exclude claimants ineligible for relief. Id. at *13. Specifically, the district court did not come up with a manageable method to weed out individuals who consented to PeopleConnect’s use of their names by registering as Classmates.com members or donating a yearbook, and those whose names are not searchable on the website. Id. at *25-26. However, the Ninth Circuit rejected this argument, finding no basis to reverse certification on predominance or manageability grounds. Id. at *40.
Adequacy
PeopleConnect challenged Nolen’s adequacy as a class representative on the following grounds: (1) her decision to proceed with a “searchable theory of liability” argument would create intraclass conflict by “sacrificing” potentially stronger claims from other purported class members, and (2) Nolen is not similarly situated to other class members because her name is no longer searchable on Classmates.com. Id. at *41. As to the first argument, the Ninth Circuit refused to rule as it was not properly raised on appeal. Id. at *48. The Ninth Circuit did, however, provide guidance should the issue be appropriately raised in the district court. Id. at *41-48. As to the second argument, the Ninth Circuit rejected PeopleConnect contention, explaining, inter alia, it could not “pick off” and moot Nolen’s claims by remediating her injury after she filed suit. Id. at *49-50.
Implications for Employers
This decision underscores the distinction between class certification and merits evaluation—that potentially strong merits defenses may not be enough to defeat class certification when common issues can be resolved through reasonable, class-wide inferences. Each of PeopleConnect’s defense arguments raised interesting issues on the merits but ultimately had no bearing on class certification. Employers should therefore evaluate class-certification exposure independently from the ultimate merits, maintain clear records of consent and authorization for commercial uses of names or likenesses, and assess early whether uniform practices could support class-wide proof. This decision also cautions that post-suit remediation directed at the named plaintiff generally will not defeat adequacy or moot the action, making proactive compliance and early risk assessment critical.
By Gerald L. Maatman, Jr., Shannon Noelle, and Olga A. Romadin
Duane Morris Takeaways: In Glidwell v. Autoneum N. Am., Inc., Case No. 2:24-CV-12805, 2026 WL 2621157 (E.D. Mich. Sept. 4, 2026), in a decision issued on September 4, 2026, Judge Robert J. White of the U.S. District Court for the Eastern District of Michigan denied Plaintiffs’ motion for court-facilitated notice to be distributed in a collective action alleging unpaid pre-shift and post-shift work in violation of the FLSA. Judge White found that Plaintiffs’ evidentiary basis — namely, 6 declarations, including from one of the named plaintiffs and 5 from opt-ins — were insufficient to demonstrate “a strong likelihood” that thousands of employees across four states were similarly situated.
Case Background
Plaintiffs Roger Glidwell, Jr. and Amy Kelly brought an action against Autoneum North America, Inc. (“Autoneum”), an automobile parts manufacturer, asserting state law and FLSA claims alleging that the Company violated applicable wage and hour laws by failing to compensate employees across six plants in four different states for pre-shift and post-shift work. Plaintiffs claimed that employees were required to clock in using Autoneum’s timekeeping system and to then do pre-shift work, including donning personal protective equipment (“PPE”) and attend meetings, and to do post-shift work by waiting for the next round of workers to start their shifts before clocking out. Id. 1031-33, 1040.Plaintiffs alleged that “Autoneum would round, edit and otherwise manipulate the Plaintiffs’ start and stop times despite using a timekeeping system that records exactly when employees punch in and out each day.” Id. at 1033. The Court dismissed Plaintiffs’ state law claims and only the FLSA claim remained at the time the Court was considering Plaintiffs’ Motion for Court-Facilitated Notice to Potential Opt-In Plaintiffs. Id.
The District Court’s Ruling
Judge White denied Plaintiffs’ motion finding that the 6 declarations submitted fell short of meeting the “strong likelihood” evidentiary standard for demonstrating that potential opt-ins are similarly situated and, finding further, that to approve notice — to thousands of employees across six plants in four different states — without such an evidentiary showing would be unfair. Judge White offered three bases for his decision to deny Plaintiffs’ motion.
First, the Court found that Plaintiffs did not meet their required evidentiary showing for court-approval of the notice because the 6 declarations (one from named Plaintiff Kelly and the rest from 5 opt-ins) did not rebut assertions made in the Complaint and in the Company’s opposition demonstrating a lack of uniformity in policies amongst the plants regarding time recording and overtime pay and as to collective bargaining agreement (“CBA”) and non-CBA facilities subject to different grievance procedures. Though the Court agreed with Plaintiffs that declarations alone could potentially carry Plaintiffs’ burden, in the present case, it determined that the substance of the declarations could not overcome assertions in the Complaint and opposition briefing indicating that each plant used a different handbook or set calculation of work hours based on a CBA. The Court noted that the named Plaintiffs “offered little evidence to rebut that each facility had its own system for calculating time worked” and, as such, there was no “strong likelihood that the underpayment was attributable to a companywide policy.” Id. at 1038. Because of the evidence showing that each plant had different handbooks and work hour calculations and indicating that some were governed by CBAs while others were not, the Court also found that the Plaintiffs were subject to differing individualized defenses as well. Id. In sum, Plaintiffs’ declarations could not overcome other evidence in the record showing differences amongst employees at the plants proposed to make-up the collective action at issue.
Second, turning to the issue of fairness with respect to distribution of the notice, and citing Clark v. A&L Homecare and Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023), for the principle that sending notice can easily expand the “ranks” of a collective action “a hundredfold” and “forc[e] a defendant to settle,” the Court concluded that approving dissemination of the notice also would be unfair on such a sparse evidentiary showing. Id. at 1040. The Court observed that “[h]ere, there are thousands of employees across six plants in four different states that would receive notice” which could “amount[] to solicitation of those employees to bring suits of their own” if such employees are not eligible to join the lawsuit. Id. From that observation, the Court concluded that, given the size and scope of the potential collective and the “the impact notice might have on the ranks of th[e] collective action,” further evidence” was needed “to show that potential opt-ins are similarly situated.” Id.
Third, and finally, the Court found that not only was named Plaintiffs’ evidence insufficient and sparse, but also it had notable shortcomings. Id. at 1041. Two of the declarants had ended their employment over three years before the complaint was filed, putting their claims outside the statute of limitations period, and rendering their declarations irrelevant to the action at hand. Id. Further, one of the declarants was an opt-in plaintiff in a different FLSA action based on similar claims against the Company as to its Oregon, Ohio factory and, therefore, the declarant could not participate in the action rendering her declaration irrelevant as well. Id. at 1041-42.In light of these additional deficiencies, the Court noted that it “only has four declarations across the six identified plants to rely on” which “further weaken[ed]” Plaintiffs’ position. Id. at 1042.
Implications for Companies
In defending FLSA collective actions, Companies should prioritize identifying evidence of differences amongst its locations or departments demonstrating different wage and hour computations or grievance processes early and often throughout the lifespan of the litigation. Though the conditional certification and notice authorization stages of court review are thought to be more lenient and preliminary, the Glidwell decision shows that the evidentiary showing is not a cursory one, at least in the Sixth Circuit, and provides fertile ground for employers to make an evidentiary showing of their own to take putative plaintiffs to task.
Duane Morris Takeaway:This week’s episode features Duane Morris partner Jerry Maatman, special counsel Adam Brown, and associate Elizabeth Underwood with their analysis of a significant development in a landmark class action centered on algorithmic discrimination in the employment context.
Jerry Maatman: Hello, everyone, and thank you for being here again today for the next episode of the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Adam Brown and Elizabeth Underwood. Thanks so much for being on our podcast today.
Adam Brown: Great to be here, Jerry.
Elizabeth Underwood: Thanks for having me, Jerry.
Jerry: Today, we’re discussing one of the most closely watched, AI-related employment lawsuits in the United States, a case called Mobley v. Workday. The plaintiffs recently filed a sweeping motion for class certification, asking a federal court in the Northern District of California to allow their claims to proceed on a class-wide basis involving potentially thousands, if not millions, of job applicants who were screened by Workday’s AI-powered recruiting tools. The certification gives us an early preview of the plaintiffs’ case theory and how they’re trying to challenge AI-driven hiring systems on a class-wide basis. Adam, can you give us an overview of the plaintiffs’ motion?
Adam: Sure, thanks, Jerry. The core of this case is an allegation by the plaintiffs that Workday’s recruiting and applicant screening tools disproportionately disadvantage applicants based on protected characteristics, which include race, sex, age, and disability. What they contend is that Workday’s AI products, such as HiredScore Spotlight, Fetch, and Candidate Skills Match, rely on historical hiring data and apply common screening logic across employers, which they say results in systemic disparities. What is important to note here is that the plaintiffs are pursuing disparate impact theories under Title VII, the ADA, and California’s Fair Employment and Housing Act. And what that means is that they don’t necessarily need to prove intentional discrimination, and instead, they’re attempting to show that the tools allegedly produce statistically significant adverse outcomes for protected groups.
Jerry: Well, that’s obviously a very critical decision. President Trump had issued an executive order last year outlawing the use of the disparate impact theory, at least insofar as EEOC actions, and here’s an example where the private plaintiffs’ bar is using that theory to forge ahead on their motion. This isn’t a case, then, challenging individual recruiter-made decisions. Instead, it’s that the technology itself may be generating discriminatory outcomes on a huge scale. That’s what makes this litigation, obviously, so significant for employers and technology providers. Why is this class certification motion noteworthy in and of itself?
Elizabeth: So, the certification motion may ultimately be the most important phase of the case. The plaintiffs are arguing that this dispute presents common questions capable of being resolved in one stroke, which is the language courts often use when evaluating Rule 23 commonality requirements. Their main argument is that Workday implemented the same AI-driven screening architecture across its customer base, so whether those tools produce desperate outcomes should be answered once for everyone subjected to the technology. The proposed class includes applicants who were screened, ranked, scored, shortlisted, or rejected through various Workday AI tools. The plaintiffs also proposed separate subclasses based on race, gender, age, and disability.
Jerry: It’s a very interesting spin in terms of their case architecture and their theories. In other words, the plaintiffs are attempting to move the discussion away from individual hiring decisions and focus it on the design and the operation of the AI systems themselves in an attempt to convince the court that the algorithms work uniformly across the board against employees or applicants in favor of employers. Adam, one aspect of the litigation that’s getting a lot of attention is the statistical evidence cited in the motion. What are the plaintiffs relying on in this situation?
Adam: Yeah, the motion is jam-packed with statistical arguments. The plaintiffs rely very heavily on expert analyses that they contend show significant disparities in rejection and grading outcomes. According to the motion, Black applicants were rejected at rates showing disparities exceeding 18 standard deviations from expected outcomes. Female applicants showed disparities exceeding 15 standard deviations, and Black female applicants allegedly experienced even larger disparities. The plaintiffs also point to alleged patterns in the timing of the rejections. They argue that many applicants receive rejections very quickly after applying, often during evenings, overnight hours, or weekends, and the motion contends that these timing patterns suggest automated decision-making rather than individualized human review.
Jerry: Seems like those allegations in this case theory ties directly into the broader debate surrounding AI in the employment context. The concern is simply not whether a system can make decisions faster. Actually, the concern is whether this automated process is replicating historical patterns in a way that creates headwinds and measurable disparities against protected category groups. Elizabeth, let’s talk about the other side of the “v.” What is Workday’s expected primary responses to this motion likely to be?
Elizabeth: Well, Workday has already previewed much of that argument publicly. The company says the plaintiffs are improperly lumping together different products and different hiring situations. Workday’s position is that applicant outcomes depend on numerous individualized factors, including qualifications, job requirements, employers, industries, locations, and the decisions made by individual customers. Class certification becomes much harder if the court accepts that framework. If every hiring decision requires examining a unique combination of employer preferences and applicant qualifications, common issues may no longer predominate.
Jerry: As we see it happen so often in class-wide litigation, there are competing narratives then underscoring both the motion for class certification and the opposition. Plaintiffs will say, “There’s one AI engine, there’s one common process, and there’s one common question.” I expect Workday is going to argue that there are thousands of employers, millions of applications, and countless individual circumstances, the gist of which is something that doesn’t create a class-wide common question. Whichever narrative the court finds persuasive could determine whether the class proceeds on a class-wide basis or as a collection of smaller individual claims. So, stepping back from that, Adam, what should employers be paying attention to in the coming months with respect to this briefing and the ultimate decision by the court?
Adam: This case is really important to keep an eye on, because it ultimately could be a roadmap for future AI litigation. The theory the plaintiffs are putting forward here is designed to reach beyond a single software platform. They’re effectively arguing that an AI developer can be challenged based on the way its algorithm operates across many employers using a common system ad if courts accept that theory, plaintiff’s lawyers may focus increasingly on centralized AI products rather than individual employers. That could significantly expand the scope of potential AI-related employment litigation.
Elizabeth: And I think another takeaway is the growing emphasis on bias audits and validation studies. One theme throughout the motion is whether Workday adequately tested its systems for disparate impact and whether those efforts were sufficient. Much of the future litigation landscape may focus not just on AI outputs, but also on the governance processes surrounding those systems.
Jerry: These are great points, and the legal conversation seems to be increasingly shifting from “Do you use AI?” to “How do you monitor it, how do you validate it, how do you document those efforts to mitigate one’s risks?” Well, as we wrap up, this remains one of the preeminent and consequential AI employment-related cases in the country, and the court’s upcoming ruling on class certification could have implications well beyond just this litigation. As Adam had indicated, it may well define how future plaintiffs challenge AI -driven employment systems and how courts evaluate class certification in this space.
So, Adam and Elizabeth, thanks so much for joining us today and providing your thought leadership and your insights. And thank you to our listeners for tuning in for another episode of the Class Action Weekly Wire. We’ll certainly keep you apprised of all developments in this litigation.
Elizabeth: Thanks for having me, Jerry, and thank you listeners.
By Gerald L. Maatman, Jr., Justin R. Donoho, and Hayley Ryan
Duane Morris Takeaways: On September 21, 2026, in Smith, et al. v. Rack Room Shoes, Inc., No. 24-CV-6709 (N.D. Cal. Sept. 21, 2026), Judge Rita F. Lin of the U.S. District Court for the Northern District of California denied class certification in a case brought by consumers against an online shoe store company alleging that the company’s use of website advertising technology (“adtech”) violated the California Invasion of Privacy Act (“CIPA”) and Electronic Communications Privacy Act (“ECPA”). The ruling is significant as it shows that before any class can be certified in the hundreds of adtech class actions filed in federal courts across the nation alleging that adtech violates privacy laws, plaintiffs not only bear the burden to establish, by the preponderance of the evidence, that they have suffered an Article III injury, but also cannot meet this burden by showing merely that they visited the defendant’s website at a time when adtech was installed on the website.
Background
This case is one of a legion of class actions that plaintiffs have filed nationwide alleging that third-party technology captured plaintiffs’ information and used it to facilitate targeted advertising.
This software, often called advertising technologies or “adtech,” is a common feature of millions of consumer products and websites in operation today. In adtech class actions, the key issue is often a claim brought under a the CIPA, the ECPA, or a variety of other statutes providing for statutory damages regardless of whether any actual injury occurred, because plaintiffs often seek millions (and sometimes even billions) of dollars, even from midsize companies, on the theory that hundreds of thousands of consumers or website visitors, times $5,000 per claimant in statutory damages under the CIPA and $10,000 per claimant in statutory damages under the ECPA, for example, equals a huge amount of damages. Plaintiffs have filed the bulk of these types of lawsuits to date against healthcare providers, but they have filed suits against companies that span nearly every industry including retailers, consumer products, universities, and the adtech companies themselves. Several of these cases have resulted in multimillion-dollar settlements, several have been dismissed, and the vast majority remain undecided.
In Smith, the plaintiffs brought suit against Rack Room Shoes, Inc., an online shoe store company, alleging that in 2024, during their online web visits to purchase shoes from the company, the company had embedded on its website adtech supplied by Meta and other adtech companies that covertly intercepted the plaintiffs’ identities and interactions with the website, including the items the plaintiffs viewed, added to the their cart, and purchased, in alleged violation of the CIPA and the ECPA.
The company answered the complaint, and the parties engaged in discovery, including the depositions of the plaintiffs and plaintiffs’ subpoenas to the adtech companies.
Based on this discovery, the record reflected that in 2021 to 2023, the Meta pixel installed on the company’s website captured activities from devices and browsers that were signed into the plaintiffs’ accounts. However, the plaintiffs provided no evidence that these 2021-2023 incidents involved their own web activities as opposed to activities of their family members using the same devices and browsers, that Meta captured any activity from the plaintiffs’ devices and browsers during their own sole 2024 visits, or that the other adtech installed on the company’s website captured any activities at all.
The plaintiffs moved for class certification, arguing that they had standing to bring their claims and that they satisfied Rule 23.
The Court’s Decision
The Court disagreed that the plaintiffs established standing and denied class certification on that basis without addressing or needing to address any of the parties’ arguments under Rule 23.
In their motion for class certification, the plaintiffs proffered two theories of injury in support of their argument that they had standing to bring their claims: one based on the actual interception of their information, and one based on the attempt to intercept their information. (Slip Op. at 5.)
On the plaintiffs’ interception injury theory, the Court found no evidence that the Meta pixel embedded on the company’s website collected any data from the plaintiffs’ 2024 website visits, and no evidence that the activity that was recorded by Meta 2021-2023 was the plaintiffs’ own browsing activity. Further, the Court rejected the plaintiffs’ argument that the company’s general use of the Meta pixel during 2024 was circumstantial evidence of actual tracking. As the Court explained, citing the company’s expert testimony, the ability of adtech to collect and transmit data in a manner that can be linked to the website user “is impacted by many factors, including the browser being used, whether the browser and device are signed in to a social media account, and what cookie blocking features are enabled.” (Id. at 7.) In sum, the Court found that plaintiffs failed to present evidence from which a reasonable jury could find that any adtech installed on the company’s website collected any data attributable to the plaintiffs.
On the plaintiffs’ attempt injury theory, the Court found that the mere presence of active adtech on a company’s website does not bear the requisite close relationship to the type of harm traditionally at issue in intrusion upon seclusion and which type of harm the plaintiffs argued was the historical analog to the type of injury they suffered and thus sufficient to confer Article III standing. On this point, the Court’s opinion turned on its finding that the plaintiffs presented no evidence that the adtech on the company’s website attempted to collect any “embarrassing, invasive, or otherwise private information.” (Id. at 8.) Further the Court found that the plaintiffs had no reasonable expectation of privacy in their web-browsing data due to the company’s privacy policy because the plaintiffs did not read it and the policy also did not create an expectation of privacy from adtech transmissions, and that even if plaintiffs had had a reasonable expectation of privacy, the plaintiffs failed to show that the mere presence of adtech was highly offensive. (Id. at 9.) In short, the Court held that “[t]he mere presence of active tracking software … on a website involving objectively non-sensitive information” does not bear a close relationship to the type of harm traditionally at issue in intrusion upon seclusion and, therefore, was insufficient to confer Article III standing.
Implications For Companies
Smith provides powerful precedent for any company opposing adtech class action claims where plaintiffs lack evidence from which a reasonable jury could find that any adtech installed on the company’s website actually collected any data attributable to the plaintiffs, by showing that any number of issues could have prevented such collection, such as the browser being used, whether the browser and device are signed in to a social media account, and what cookie blocking features are enabled.
Of course, Smith is just one tool in a defendant’s kit for defeating class certification in adtech cases. Another is that even when named plaintiffs can establish that adtech collected data attributable to themselves (unlike in Smith), the same factors identified in Smith — browser type, social media account login status, cookie blocking features — are individualized issues that prevent named plaintiffs from establishing the defendant’s liability to alleged class members under Rule 23, as we blogged about here.
By: Gerald L. Maatman, Jr, Daniel D. Spencer, Jamar D. Davis, and Kenny T. Tran
Duane Morris Takeaways: On September 18, 2026, in Sara Reyes v. Grow Smart Labor, Inc., No. 1:24-CV-00028, 2026 U.S. Dist. LEXIS 213967 (E.D. Cal. Sep. 18, 2026), Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California denied class certification in a California wage-and-hour action after concluding that, although Plaintiff could identify a common question concerning whether the Donohue meal period presumption arose from Defendant’s timekeeping data, the rebuttal of that presumption would require extensive individualized farm-by-farm, crew-by-crew and day-by-day inquiries, demonstrating that individualized inquiries dominated over common questions.
Case Background
The case arose from Plaintiff Sara Reyes’ employment with Defendant Grow Smart Labor, a farm labor contractor that supplies agricultural workers to third-party farms. Id. at *1. Grow Smart’s workforce was anything but uniform: employees were assigned to different crops, locations, supervisors, and jobs; some were paid hourly while others were paid on a piece-rate basis; and the company used different timekeeping systems, including crew timecards and individual timecards. Id. at *8. Grow Smart presented evidence that its operations and timekeeping practices varied substantially by assignment, such that “farm-by-farm” or “crew-by-crew” investigation regarding meal breaks would ensue. Id. at *8-9.
The Court’s Reasoning
The meal period analysis was the centerpiece of the decision. The District Court recognized that under Donohue v. AMN Services, LLC, 11 Cal. 5th 58 (2021), time records showing missed, short, or delayed meal periods without corresponding compensation can create a rebuttable presumption that the employer violated California law. Id. at *4. But the Court emphasized that the Donohue presumption does not eliminate the separate requirements imposed by Federal Rule of Civil Procedure 23. Id. at *6.
Reyes’ expert provided class-wide evidence by analyzing Grow Smart’s timekeeping data, finding that almost none of Grow Smart’s records included entries that showed when employee meal breaks began or ended. Id. at *7. Grow Smart did not challenge the expert’s experience or qualifications, nor did it offer any contrary analysis of its own data or any rebuttal expert opinions. Id. at *7-8.The District Court concluded that Reyes had demonstrated a common question of law and fact concerning whether the class’s timekeeping data could trigger the Donohue presumption. Id. at *8.
However, Grow Smart successfully argued, to which the magistrate judge agreed to and found, that Reyes had not demonstrated that common questions are likely to predominate the rebuttal portion of the case: the degree of individualized inquiries needed to assess meal period compliance across all of Grow Smart’s California operations. Id. Grow Smart employees worked at different farms under different supervisors, some worked in crews while others had individualized timekeeping, and records varied from assignment to assignment. Id. Most importantly, Grow Smart presented evidence that whether meal periods were required to be recorded could depend on whether operations “ceased” during the relevant meal period. Id. at *8-9.The Court therefore anticipated that a class trial would devolve into “a long series of back-and-forth debates” concerning “what happened on Farm A versus Farm B or under the leadership of Supervisor 1 versus Supervisor 2.” Id. at *9.
The individualized nature of those inquiries also affected Reyes’ proposed class under Rule 23(b)(2). The Magistrate Judge found that a class action cannot be certified under 23(b)(2) when “each class member would be entitled to an individual award of monetary damages” and “a different injunction or declaratory judgment”, which Reyes did not object to. Id. at *9-10. Since Reyes no longer worked for Grow Smart or cited any plans to return, she had not demonstrated that she could pursue prospective relief on behalf of a class of current employees, which is a prerequisite to seek such relief on behalf of a class of current employees. Id. at *10.
Takeaways and Implications for Employers
For employers defending wage-and-hour class actions, Reyes underscores an important distinction between identifying a statistical pattern and proving a class-wide violation. A plaintiff may be able to point to a common data anomaly, such as missing meal punches or apparent deductions, but the defense can still defeat certification by demonstrating that the meaning of those records depends on operational context. Here, the significance of a missing punch could not be evaluated in a vacuum because the company’s vast agricultural operations used different recordkeeping practices, including crew-level records that did not necessarily apply uniformly across business functions.
The decision also highlights the value of developing a factual record demonstrating operational variation before the certification stage. Employers should preserve and present evidence concerning different worksites, supervisors, scheduling practices, timekeeping systems, compensation methods, written policies, policy changes, and the actual practices followed in the field. Reyes shows how those facts can transform an apparently simple “missing meal punch” case into a series of individualized factual inquiries that plaintiffs cannot readily resolve through a single database or expert model. The result is a defense-friendly application of Rule 23’s predominance requirement: common data may establish a common issue, but it does not necessarily establish a common answer to the ultimate liability question.
By Gerald L. Maatman, Jr, Jennifer A. Riley, and Daniel D. Spencer
Mark your calendars for our bi-annual program analyzing the latest EEOC developments: Wednesday, October 14, 2026 from 11:00 a.m. to 11:30 a.m. Central. Reserve your virtual seat for the program here.
Join Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley and Daniel D. Spencer for a live panel discussion analyzing the latest impact of enforcement litigation at the U.S. Equal Employment Opportunity Commission, including its new National Enforcement Plan and strategic priorities established in fiscal year 2026 and the enforcement lawsuits filed over the past 12 months. Our virtual program will empower corporate counsel, human resource professionals and business leaders with key insights into the EEOC’s latest enforcement initiatives and provide strategies designed to minimize the risk of drawing the agency’s scrutiny.
