Caitlin Capriotti – Class Action Defense

October 14, 2026October 14, 2026 by Gerald L. Maatman, Jr.

Ninth Circuit Finds Article III Standing In Class Action Where The Only Harm Is The Act Of Unauthorized Disclosure Of Sensitive Information

By Gerald L. Maatman, Jamar Davis, and Caitlin Capriotti

Duane Morris Takeaways: On October 9, 2026, in Melissa Black and Miles Black v. IEC Group, Inc., No. 25-5952, 2026 U.S. App. LEXIS 30906 (9th Cir. Oct. 9, 2026), a panel for the Ninth Circuit, via an opinion written by Judge Eric. C. Tung, reversed the decision by the U.S. District Court for the District of Idaho dismissing a privacy class action for lack of subject matter jurisdiction for lack of injury. In the reversal, the Ninth Circuit held that the unauthorized disclosure of sensitive facts about Plaintiffs’ health that they entrusted Defendant to keep private is akin to a breach of confidence or contract. The act of disclosure, even without a formal privacy right, is an intangible harm sufficient for Article III standing. The case was remanded back to the District Court for further proceedings.

The decision is a must read for corporate counsel dealing with privacy class actions.

Case Background

Plaintiffs Miles and Melissa Black (“Plaintiffs”) receive health insurance from a plan administered by Defendant IEC Group, Inc. (“IEC”). Id. at *3. In August 2023, IEC sent Plaintiffs a letter informing them that some of their information was disclosed to unauthorized parties when an associate emailed a spreadsheet containing Plaintiffs’ sensitive health information to “on or more [plan] members.” Id. at *4. Information disclosed included: (1) first and last names, (2) unique tracking numbers, (3) provider names, (4) claim numbers, (5) dates of service, and (6) the amounts billed or paid. Id.

Plaintiffs brought a class action against IEC in the U.S. District Court for the District of Idaho claiming that when Plaintiffs entrusted their sensitive health information to IEC as a condition of their healthcare plan administration, IEC expressly and impliedly promised – through its Privacy Policy – to keep the information confidential and to not disclosure it to any third party without their consent, and to use reasonable methods to prevent such disclosure. Id. Plaintiffs allege that IEC breached those promises when they disclosed the confidential information without authorization, depriving Plaintiffs the benefit of their bargain and diminishing the value of the services rendered. Id.

The District Court granted IEC’s Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction because it concluded that Plaintiffs did not suffer an injury in fact and thus did not have Article III standing. Id. at *5. The District Court held that to allege a concrete injury from disclosure of personal information, the Plaintiffs must show that the nature of the information disclosed, the context of the disclosure, and other alleged injuries associated with the disclosure demonstrate an imminent and substantial injury. Id.

The Ninth Circuit’s Analysis

The Ninth Circuit reversed. It began its ruling by reiterating the long-held standard that an “injury in fact” includes both tangible harms, such as physical harms or monetary loss, and traditionally recognized intangible harms, such as “reputational harms” or “harms specificized by the Constitution itself.” Id. at *6. The Ninth Circuit also opined that “Congress’s ‘judgement is also instructive and important,’ as that body is ‘well positioned to identify intangible harms that meet minimum Article III requirements.’” Id. at *7 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)).

In this case, the harm Plaintiffs alleged consisted of the unauthorized disclosure of sensitive facts about their health that they entrusted to IEC to keep private. Id. At this stage of litigation, there is no dispute that the disclosed information was sensitive to Plaintiffs nor that IEC promised Plaintiffs to keep this information private. Id. Thus, the harm that Plaintiffs allege from the disclosure resembled a breach of confidence and breach of contract, which courts have long held provides basis for a lawsuit. Id.

Under a breach of confidence claim, a defendant is liable for “the unconsented, unprivileged disclosure to a third party of nonpublic information that the defendant has learned within a confidential relationship. Id (citing Kamal v. J. Crew Grp., Inc., 918 F.3d 102, 114 (3d Cir. 2019)). The panel described cases going back to 1614 England to demonstrate this long held cause of action. See id *8-12. Ultimately, for a breach of confidence, “a trust betrayed is the harm.” Id. at *12 (emphasis in original). Further, the Ninth Circuit held that a privacy right is not necessary to find a breach of confidence claim. Id. at 13. A “breach of contract” claim only reinforces the breach of confidence standing. Id. at 15. Here, Plaintiffs have alleged a confidential relationship grounded in promises made by IEC, and a breach of those promises. Id.

Finally, the Ninth Circuit reasoned that Congress has confirmed that disclosure of private health information is a concrete injury through other legislation. Id. at 16. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) and subsequent amendments to protect certain sensitive health information from improper disclosure. Id. While HIPAA does not provide a private cause of action, it does prohibit disclosure of private health information and even provides criminal liability for “knowingly ‘disclos[ing] individually identifiable health information to another person.’”Id (citing 42 U.S.C. § 1320d-6(a)(3)). Congress has made the determination that this information is sensitive enough to warrant statutory protection. Id. Thus, a disclosure of the private health information is a harm sufficient for Article III standing.

Implications for Companies

This case highlights the importance of maintaining confidentiality when handling sensitive personal information of their employees and customers. The Ninth Circuit has held that even if a private cause of action regarding privacy for a specific kind of sensitive information does not exist, unauthorized disclosure is itself harm in the context of Article III. Employers must ensure that their security protocols and storage of sensitive information passes muster in the digital age in order to avoid potential liability

September 29, 2026September 29, 2026 by Gerald L. Maatman, Jr.

Ninth Circuit Signals That Strong Merits Defenses And Post-Suit Remediation May Not Be Enough To Defeat Class Certification

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.

April 3, 2026April 3, 2026 by Gerald L. Maatman, Jr.

“A Matter Of Consent” – Ninth Circuit Finds Non-Mutual Offensive Collateral Estoppel Inappropriate In Invalidating Individual Arbitration Agreements Under The Federal Arbitration Act

By Gerald L. Maatman, Jamar D. Davis, and Caitlin Capriotti

Duane Morris Takeaways: On April 1, 2026, in Laura O’Dell et. al. v. Aya Healthcare Services, Inc., No. 25-1528, 2026 U.S. App. LEXIS 9420 (9th Cir. Apr. 1, 2026), a panel for the Ninth Circuit held that the U.S. District Court for the Southern District of California erred in relying on non-mutual offensive collateral estoppel to preclude the enforcement of hundreds of arbitration agreements based select arbitral awards from unappointed arbitrators for different parties. This decision reaffirms the principle of consent set forth in the Federal Arbitration Act (“FAA”) and the Ninth Circuit’s preference (in line with the FAA) for enforcement of valid arbitration agreements in individualized proceedings.

Case Background

Aya Healthcare Services, Inc. (“Aya”) is an agency the pairs traveling nurses and other supporting clinicians with hospitals in need. In 2022, four former employees filed a putative class action against Aya for allegedly reducing their pay mid-contract, asserting breach of contract, fraudulent inducement, state wage-and-hour violations, and violations under the Fair Labor Standards Act (FLSA). As a condition of employment, all employees signed arbitration agreements to resolve any employment-related disputes outside of the court system. Aya moved to compel arbitration, and the U. S. District Court for the Southern District of California (the “District Court”) granted the motion and compelled all four named plaintiffs to arbitration.

Aya proceeded to arbitrate with each of the four plaintiffs in four separate arbitrations. Each plaintiff challenged the validity of the arbitration agreements, and the delegation clause assigned the arbitrator (rather than the court) authority to decide whether the arbitration agreement was valid. Two arbitrators ruled the arbitration agreements were unconscionable, and two arbitrators ruled the arbitration agreements were valid. By the time the parties moved the District Court to confirm their respective arbitral awards, 255 additional plaintiffs had opted-in to the case pursuant to a collective action procedure under the FLSA. Aya moved to compel each of these plaintiffs to arbitration. In response, a newly assigned district judge raised sua sponte the issue of whether collateral estoppel barred Aya from enforcing the additional arbitration agreements against the opt-in plaintiffs. Ultimately, the District Court denied Aya’s motion to compel arbitration.

The District Court applied the doctrine of non-mutual offensive collateral estoppel to preclude the enforcement of the arbitration agreements between Aya and the 255 employees. This doctrine was “non-mutual” because a party different from the party in the original action is seeking preclusion and “offensive” because the new party is using a prior award as a sword (rather than a shield). However, the District Court only gave the collateral estoppel effect to the two decisions finding the arbitration agreements unconscionable, and awarded no such power to the decisions holding the arbitration agreements as valid. The Ninth Circuit reviewed the motion to compel arbitration de novo.

The Ninth Circuit’s Decision

The Ninth Circuit held that the District Court’s novel application of an equitable preclusion doctrine did not preclude the enforcement of the arbitration agreements because application of the doctrine runs contrary to FAA’s intention to enforce the agreed upon terms of valid arbitration agreements in individualized proceedings. “Precluding an arbitration that the parties had agreed to – because a different arbitrator in a different proceeding had concluded that an agreement between different parties was unconscionable – would render the parties’ consent meaningless,” wrote U.S. Circuit Judge Eric C. Tung (emphasis in original). This goes against the fundamental requirement that each arbitration agreement requires individualized resolution. The Ninth Circuit also stated that “the application of non-mutual offensive issue preclusion would also violate the principle of consent that the [Federal Arbitration Act (“FAA”)] incorporates.” Id. at *8. When parties enter arbitration agreements, the FAA serves to have those agreements enforced. Further, even when the validity of an arbitration agreement is at issue, the issue-preclusion doctrine is not a “generally applicable contract defense.” Id.

Further, the Ninth Circuit determined that the District Court’s order effectively transformed individual arbitration proceedings into a bellwether class action to which the parties never agreed. This also goes to the issue of consent. The Ninth Circuit cited the U.S. Supreme Court’s decisions in Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018), and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), as holding that imposing a class action without the parties’ consent (or adequacy of representation) and where the parties had agreed to individual arbitration is a violation of the FAA. Allowing one arbitration proceeding to preclude hundreds or thousands of arbitration agreements, as the logic of the District Court suggests, regardless of adequacy of representation, would strip the resulting class action from all its important protective features.

As a result, the Ninth Circuit reversed the District Court’s judgment and remanded for further proceedings.

Implications For Employers

This decision reaffirms the strength of the FAA and reiterates the Ninth Circuit’s preference for enforcing arbitration agreements on an individualized basis.

District court judges who may have personal preferences against arbitration cannot destroy the FAA with novel doctrines inconsistent with the FAA.

September 8, 2025September 8, 2025 by Gerald L. Maatman, Jr.

Washington Supreme Court Rules That Job Applicants Need Not Be “Bona Fide” Under The EPOA To Launch Class Actions

By Gerald L. Maatman, Jr., Eden E. Anderson, and Caitlin Capriotti

Duane Morris Takeaways: On September 4, 2025, the Washington Supreme Court issued its highly anticipated decision in Branson, et al. v. Washington Fine Wine & Spirits, LLC, et al., Case No. 103394-0 (Wash. Sept. 4, 2025), holding that job applicants are not required to prove they are a “bona fide” or a “good faith” applicant to obtain remedies under the EPOA in class action litigation. The Washington Supreme Court acknowledged, but declined to address, other open issues under the EPOA, which means that state and federal courts in Washington will now be called upon to rule on other unresolved issues under the statute, including whether the EPOA even grants a private right of action to applicants in the first instance.

Case Background

Washington state’s Equal Pay and Opportunities Act (“EPOA”) was amended in 2022 to require employers to include wage or salary range information in job postings. Soon thereafter, a torrent of class action lawsuits followed, some filed by applicants who had legitimately sought employment, but far more filed by serial plaintiffs seeking recovery of staggering amounts of statutory damages and attorneys’ fees. Before it was further amended in 2025, the EPOA provided for $5,000 in statutory damages per job applicant.

Plaintiffs Lisa Branson and Cherie Burke submitted applications for retail positions with defendant and the job postings to which they applied did not contain the required salary or wage range information. Branson interviewed for the position for which she applied and discussed pay during that interview, but did not accept the position she was offered.

Subsequently, Branson and Burke filed a class action lawsuit invoking their right to statutory damages under the EPOA. Although Branson seemingly was a bona fide job applicant, the defendant filed a motion to bifurcate discovery, arguing that plaintiffs were not the type of “job applicants” the EPOA was intended to protect and that the statute only applies to “bona fide” applicants. The U.S. District Court for the Western District of Washington certified the following question: “What must a Plaintiff prove to be deemed a ‘job applicant’” under the EPOA? The Washington Supreme Court accepted certification to resolve that question.

The Decision

Relying first on the dictionary definition of “applicant,” as “one who applies for something,” the Supreme Court noted that the definition does not rely on the subjective intent of the individual to determine whether a person is an applicant. Thus, the plain meaning of the term means only “one who applies” irrespective of their intent in doing so. The Supreme Court noted that elsewhere in the EPOA the legislature used the phrase “bone fide,” but it did not do so in reference to job applicants, further confirming no such limitation.

The Supreme Court also found telling the fact that the legislature originally considered conferring remedies broadly to “individuals,” but then amended the statute to confer remedies on applicants and employees, suggesting the legislature specifically considered who could obtain remedies and yet did not include any further words of limitation such as “bona fide.” Additionally, the Supreme Court highlighted that although the agency charged with adopting rules implementing the statute, Labor & Industries, originally promulgated draft rules which defined a job applicant as a “good faith” applicant, that definition was withdrawn and never implemented.

The Supreme Court repeatedly noted in the decision that, if the EPOA is to be limited to bona fide or good faith job applicants, the Washington legislature will need to act to make this change.

Three of the nine justices issued a sharply worded dissent disagreeing with the majority’s ruling and expressing their view that the EPOA was not designed to “give bounty seekers an incentive to trawl the internet for noncompliant job postings to obtain a statutory damages award unrelated to any personal harm.” Dissenting Opinion, at 2.

Although the outcome is not what employers were hoping for, there are silver linings in the Branson decision and, in particular, in the Supreme Court’s numerous footnotes. Principally, although it declined to rule on the issue because the argument was not made by the defendant, the Supreme Court chose to highlight in footnote 3 that the EPOA may only confer a private right of action on employers, and limit applicants to filing claims with Labor and Industries. The Supreme Court also chose to emphasize another argument made in amicus briefing in footnote 6 of the decision wherein it highlighted that the remedies available under the EPOA may be too severe and unconstitutional. It declined to rule on that issue too as it also was not an argument made by the defendant. Thus, these issues and many others remain unresolved and may soon be addressed by Washington state and federal courts as the legions of EPOA cases, all stayed pending the Branson ruling, are now litigated.

Implications of the Decision:

The Branson decision is an unfortunate ruling for Washington state employers. An unharmed plaintiff who never had any legitimate interest in a posted job position and whose only goal is to collect money through legal proceedings now has the green light to seek remedies under the EPOA. That said, the Branson decision highlights other defense arguments that can and should be made in all pending EPOA cases. The decision suggests that a private right of action is limited to employees, and that applicants can only seek remedies under the EPOA through administrative proceedings before Labor & Industries.