Bernadette Coyle – Class Action Defense

June 4, 2026June 4, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Allows Employer To Seek Attorneys’ Fees Against EEOC After Deeming Long COVID Claims Frivolous

By Gerald L. Maatman, Jr., Tiffany Alberty, and Bernadette Coyle

Duane Morris Takeaways: On June 1, 2026, in Equal Employment Opportunity Commission v. A&A Appliance, Inc., No. 1:23-CV-2456 (D. Colo. June 1, 2026), Chief Judge Daniel D. Domenico of the U.S. District Court for the District of Colorado granted Defendant A&A Appliances, Inc.’s (“A&A”) motion to deem the EEOC’s claims under the Americans with Disabilities Act (“ADA”) frivolous, unreasonable, and without foundation, entitling the employer to seek a full award of attorneys’ fees. This decision is an important read for corporate counsel facing employment discrimination cases, particularly EEOC-initiated litigation. The ruling demonstrates that the federal agency can face fee-shifting consequences when it pursues claims that lack evidentiary support from their inception.

Case Background

Defendant A&A Appliance, Inc. (“A&A”) employed Karima Javanzad from February 2019 to June 2020. During the early months of the COVID-19 pandemic, Ms. Javanzad sought a 12-week FMLA leave for varied reasons, including her own possible COVID-19 infection, her son’s illness, and a gastrointestinal condition. A&A approved the medical leave retroactively, covering mid-March through early June 2020. Over the following weeks, A&A and Ms. Javanzad exchanged emails, calls, and texts about when her leave would expire and whether an extension was possible. When Ms. Javanzad did not return to work after her leave ran out, A&A terminated her employment on June 10, 2020, explaining that it had offered to extend her leave only if the original FMLA-triggering condition warranted it, and that her gastrointestinal disorder (unrelated to COVID-19) did not qualify.

Ms. Javanzad subsequently filed a charge of discrimination with the EEOC in December 2020, asserting that A&A had discriminated against her based on her disability and retaliated against her for seeking a reasonable accommodation. Following its investigation, the EEOC concluded there was reasonable cause to believe A&A violated the ADA and attempted to resolve the matter through conciliation. After those efforts failed, the EEOC filed suit in September 2023 claiming: (1) failure to accommodate, (2) disparate treatment, and (3) retaliation under the ADA.

In September 2025, the Court granted summary judgment in favor of A&A on every claim, concluding that the EEOC had not demonstrated that A&A was ever on notice of a qualifying disability that required accommodation under the ADA. A&A then moved for an order deeming the EEOC’s claims frivolous, unreasonable, and without foundation so that it could recover its full attorney’s fees.

The Court’s Decision

Chief Judge Domenico granted A&A’s motion. The Court applied the standard from Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which permits an award of attorney’s fees to a prevailing defendant in an ADA case where the court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at 422.

The Court applied three factors from the Eleventh Circuit’s decision in Walker v. NationsBank of Florida, N.A., 53 F.3d 1548 (11th Cir. 1995), which the Tenth Circuit has affirmed: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits. All three factors weighed in A&A’s favor — the EEOC failed to establish a prima facie case, A&A offered to settle, and the case was dismissed on summary judgment before trial.

The Court rejected the EEOC’s argument that the Christiansburg Garment standard is met only when a party “utterly fails to produce any evidence in support of material issues necessary to withstand summary judgment.” The Court explained that while the EEOC presented some evidence that Ms. Javanzad had a disability and requested leave, it failed to present evidence for the critical element of A&A’s knowledge of the claimed disability. As the Court emphasized, “[a] ‘health condition’ does not equate to a qualifying disability under the ADA” and “knowledge of a health condition is not necessarily knowledge of a disability.”

Importantly, the Court found that the EEOC had multiple years before initiating the action in September 2023 to investigate the facts and apply established case law. The EEOC’s own initial complaint showed that it knew Ms. Javanzad was diagnosed with vocal cord paralysis and gastritis after her June 9 endoscopy, and thus presumably after her June 10 termination, and that she was diagnosed with COVID-19 after termination. These facts undermined the EEOC’s assertion that its evidence changed throughout discovery. Moreover, fact discovery closed in July 2024, seven months before the dispositive motion deadline, and A&A raised issues of factual and legal deficiencies throughout litigation prior to summary judgment.

Finally, the Court noted that the EEOC is not a “regular plaintiff” and that courts may consider distinctions between the Commission and private plaintiffs. Quoting the Fifth Circuit, the Court observed that the EEOC “owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009). The Court concluded: “Ms. Javanzad might have been excused from pressing these issues. The EEOC is not.” For these reasons, the Court entitled A&A to reasonable attorney’s fees.

Implications For Employers

For employers facing EEOC-initiated litigation, this decision underscores the importance of raising factual and legal deficiencies early, consistently and persistently throughout discovery, as the Court credited A&A’s efforts to put the EEOC on notice of the weaknesses in its case. This decision also reinforces that while there is a high threshold for establishing entitlement to attorney’s fees, prevailing defendants are not without recourse when the EEOC presses claims lacking foundational evidentiary support.

May 13, 2026May 13, 2026 by Gerald L. Maatman, Jr.

Wisconsin Federal Court Remands Privacy Class Action Lawsuit Based On Lack Of No Injury From Google Analytics Data Tracking

By Gerald L. Maatman, Jr., Bernadette M. Coyle, and Andrew P. Quay

Duane Morris Takeaways: On May 1, 2026, in Brahm, et al. v. Hospital Sisters Health System, et al., No. 23-CV-444, 2026 U.S. Dist. LEXIS 96866 (W.D. Wis. May 1, 2026), Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin remanded a putative class action to state court after finding that Plaintiffs lacked Article III standing to pursue claims that healthcare defendants’ use of Google Analytics on patient portals resulted in unauthorized disclosure of protected health information (“PHI”) to Google. Id. at *2-3. The Court held that Plaintiffs’ lack of evidence of actual harm, together with their theory of future harm, was insufficient to confer standing. Id. at *3. The decision reinforces the growing trend among federal courts requiring proof that disclosed data was actually used to identify individuals, not merely that such identification was theoretically possible.

Case Background

The Defendant healthcare companies operate public websites and authenticated MyChart patient portals as “MyHSHS” and “MyPrevea,” which allow patients to log in with a username and password to access their medical records, schedule appointments, and pay bills. Id. at *4. Between at least 2016 and 2023, Defendants deployed Google Analytics tracking technology on their public websites, within patient portals on their websites, and on MyPrevea’s login page and app. Id. at *6. Whenever a user visits Defendants’ websites or portals, Google Analytics gathers information about the user’s interactions and shares certain transmissions with Google. Id. at *7.

Plaintiffs asserted that Google Analytics routinely disclosed patients’ identities and protected health care information to third-party websites like Google without the patients’ knowledge or consent. Id. at *1. Plaintiffs alleged that they began seeing Facebook advertisements related to their specific medical conditions after visiting Defendants’ portals or websites. Id. at *5. However, Plaintiffs also searched about their medical conditions or treatment online and have had their personal information involuntarily exposed to third parties by entities unrelated to the litigation. Id. None of the Plaintiffs had ever tried or intended to sell their PHI, nor did they claim to have suffered any out-of-pocket expenses as a result of Defendants’ allegedly wrongful disclosures. Id. at *10. Nonetheless, they sought actual damages based on the alleged “diminished sales value of their PHI,” as well as statutory and nominal damages. Id.

Plaintiffs alleged claims for violation of federal and state wiretapping statutes, as well as Wisconsin common and statutory laws for breach of duty of confidentiality, breach of implied contract to protect privacy, public disclosure of private facts, and unjust enrichment. Id. at *3. Plaintiffs moved to certify four subclasses, while Defendants moved for summary judgment as to all claims. Id.

The Court’s Opinion

The Court addressed the “threshold question” of Article III standing on its own initiative, noting that Defendants’ summary judgment motion called Plaintiffs’ standing into question and standing “is jurisdictional and cannot be waived” and must be “secured at each stage of the litigation.” Id. at *12. While the Court had previously allowed the original named Plaintiff to proceed past the motion to dismiss stage because it found her allegations of injury sufficient at the pleading stage, the Court explained that with a full record at the summary judgment stage, Plaintiffs failed to present sufficient evidence of a concrete injury-in-fact on multiple grounds. Id.

First, as to Plaintiffs’ tort claims for invasion of privacy and breach of fiduciary duty, the Court found no evidence from which a reasonable jury could conclude that their patient identity or PHI was actually disclosed to Google, disclosed by Google, or used by Google inappropriately. Id. at *17. Plaintiffs’ evidence did not establish that any of the disclosed anonymous information was actually used by Google or another third party to identify them. Id.

Despite Plaintiffs’ expert opining that Google’s systems had the “technical capability and documented practice” of linking information to specific individuals, the Court determined that the capabilities of Google’s systems were insufficient to demonstrate what it actually did. Id. at *19. Further, Plaintiffs failed to proffer evidence showing that Defendants caused Plaintiffs’ PHI to be shared, as opposed to other third parties or Plaintiffs themselves through their own voluntary internet disclosures. Id. at *20.

Relying on the Seventh Circuit’s decision in Dinerstein v. Google, LLC, 73 F.4th 502 (7th Cir. 2023), the Court emphasized that Plaintiffs “must still present sufficient evidence that Google Analytics actually worked as allegedly intended, which they have failed to do in this case,” and therefore, Plaintiffs failed to show a concrete injury to support standing under Article III. 2026 U.S. Dist. LEXIS 96866, at *23. The risk of Google or other third parties identifying Plaintiffs at a later date by leveraging the data obtained from Defendants was “not sufficiently imminent to obtain relief in federal court.” Id.

Second, as to the breach of implied contract claim, the Court found that Plaintiffs lacked standing because their asserted pecuniary harm based on the diminished sales value of their PHI or nominal damages, without any actual harm, was an injury in law and not an injury-in-fact as required by Article III. Id. at *24-25.

Third, Plaintiffs alternatively asserted unjust enrichment, arguing that Defendants retained without compensation Plaintiffs’ PHI and then disclosed this information to third parties for Defendants’ own gain. Id. at *26. However, the Court found that without any evidence of improper disclosure, Plaintiffs’ alleged pecuniary injury was “simply speculative and insufficient to confer standing.” Id. at *27.

Fourth, the wiretapping claims likewise failed. Although Plaintiffs sought statutory damages, the Court held that a statutory violation on its own does not confer standing without an underlying concrete, particularized injury. Id. at *28 (citing TransUnion LLC v. Ramirez, 594 U.S. 413, 427 (2021)).

Having found that Plaintiffs lacked standing as to all claims, the Court remanded the case to Wisconsin state court for further proceedings. Id.

Implications For Companies

Brahm reinforces that plaintiffs challenging tracking technology must present actual evidence identifying what allegedly private information was disclosed and cannot rely on abstract and speculative alleged injuries to confer Article III standing. Asserting an Article III standing defense remains an effective defense that companies should consider throughout litigation, balanced against the prospect of the case continuing in state court.

July 11, 2025July 11, 2025 by Gerald L. Maatman, Jr.

North Carolina Federal Court Dismisses Data Breach Class Action In Finding Bare Assertions Are Insufficient To Confer Standing

By Gerald L. Maatman, Jr., George J. Schaller, and Bernadette M. Coyle

Duane Morris Takeaways:

On June 30, 2025, in Panighetti, et al. v. Intelligent Business Solutions, Inc., No. 1:23-CV-209, 2025 U.S. Dist. LEXIS 123406 (M.D.N.C. June 30, 2025), Judge Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina granted Intelligent Business Solution’s (“IBS”) motion to dismiss a data breach class action and found that Plaintiff did not have standing under Article III because he failed to plead a concrete injury. Plaintiff alleged on behalf of himself, and over 11,000 other individuals, that IBS invaded his privacy and negligently failed to protect his personal informal following a data breach in 2022.

The decision in Panighetti shows a growing trend among federal courts finding claims based on future and/or speculative harm in data breach class actions are insufficient – without any concrete instance of personal information being stolen or misused –to establish Article III standing.

Case Background

IBS, a health information company, collects and maintains personal identifiable information and protected health information for healthcare entities. Plaintiff, a hospital patient that IBS provided services for, alleged that his personal information was part of a 2022 data breach. Id. at 1. Plaintiff further alleged the data breach exposed the names, Social Security numbers, medical treatment information, and health insurance information of an estimated 11,595 individuals. Id. at 2.

After IBS became aware of the data breach, it notified impacted individuals. Plaintiff maintained that by issuing this notification, IBS “created a present, continuing, and significant risk of suffering identity theft.” Id. On March 7, 2023, Plaintiff filed suit against IBS, alleging seven causes of action including negligence, invasion of privacy, unjust enrichment, and violation of the North Carolina Unfair Trade Practices Act. Id.

IBS moved to dismiss and asserted Plaintiff lacked Article III standing to bring his claims. IBS argued Plaintiff was “not able to plead facts that show there was actual misuse of data that resulted in identity theft, fraud, or another concrete injury-in-fact.” Id. at 4. Plaintiff countered that he had standing to sue “because the data breach harmed him, will harm him again, and requires him to expend resources mitigating that harm” and that these harms “confer standing” based on Fourth Circuit precedent. Id.

The Court’s Order

The Court granted IBS’s motion to dismiss. The Court held Plaintiff failed to establish standing. The Court reasoned that to proceed with a lawsuit, Article III requires a plaintiff to “demonstrate (1) an injury in fact; (2) causation; and (3) redressability.” Id. at 5 (citing David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013)).

On the first element, the Court explained that Plaintiff must show he “suffered an invasion of a legally protected interest which is concrete, particularized, and actual or imminent.” Id. Plaintiff argued that he was injured because the breach: “(1) exposed his medical records, thus invading his privacy; (2) exposed information criminals can use to commit fraud and steal his identity; (3) required him to spend resources to mitigate the risk; and (4) caused him to suffer from anxiety, sleep disruption, stress, fear, and frustration.” Id. Relying on Fourth Circuit precedent, the Court rejected Plaintiff’s argument that he was injured because of the data breach because nowhere in the pleadings did Plaintiff claim that he was a victim of identity theft or fraud, that risk of future theft was “certainly impending,” or provide instances of his personal information being exploited. Further, spending resources to mitigate the increased risk caused by the breach, where there was no misuse of data, was too speculative to confer standing.

Turning to Plaintiff’s claims of emotional harm, the Court opined that although the Supreme Court took no position on whether emotional harm confers standing in TransUnion v. Ramirez, Fourth Circuit precedent, in Beck, rejected a Plaintiff’s claims that “emotional upset” and “fear of future identity theft and financial fraud” was sufficient to confer standing. Id. at 8 (quoting Beck v. McDonald, 848 F.3d. 262 (4th Cir. 2017). Accordingly, the Court dismissed Plaintiff’s claims of emotional harm as “bare assertions of possible or potential harm.” Id.

Implications For Companies

Standing remains an effective defense for companies to challenge putative class actions at the responsive pleading stage especially, whereas here, Plaintiff failed to assert facts demonstrating harm stemming from a data breach.

Panighetti shows that data breach plaintiffs cannot rely on speculative injuries based on future harm to satisfy Article III standing requirements. However, companies asserting an Article III standing defense must consider the possibility of a class action plaintiff refiling in state court when determining whether to challenge standing in federal court.