Author: Class Action Defense

Duane Morris Takeaway: The Class Action Weekly Wire is back on the air in 2026 and our first episode features Duane Morris partners Jerry Maatman and Jennifer Riley with their discussion of the key trends and developments analyzed in the new editions of the Wage & Hour Class And Collective Action Review – 2026 and the Private Attorneys General Act Review – 2026. Our virtual desk references are fully searchable and accessible from any device.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners and readers, for our first podcast of 2026. I’m Jerry Maatman, a partner at Duane Morris, and joining me today on the Class Action Weekly Wire podcast series is my colleague and partner, Jennifer. Thanks so much for being here, Jen.

Jennifer Riley: Great to be here, Jerry. Thanks for having me, and Happy New Year to you and to all of our listeners.

Jerry: Thanks so much. Our topic on today’s podcast are two desk references for employers that we put together, one on wage and hour issues, and the other on the California PAGA statute. It’s apropos that we talk about those mini-books, because after the publication of the Duane Morris Class Action Review on Tuesday, January 6, within a period of 10 days the Review and its analysis of wage and hour issues was cited in pleadings filed with the U.S. Supreme Court, so we’re very honored with the notion that the High Court received our analysis within less than 10 days after publication of the Duane Morris Class Action Review.

So, we wanted to talk, Jen, about some of the areas covered by the wage and hour and PAGA books, because I think these are our hottest mini-books and bestsellers.

Jennifer: That’s exactly right, I agree. These reports really capture how active and fast-moving these spaces continue to be. Starting with wage and hour, once again, in 2025, as we’ve seen for several years now, we saw litigation alleging violations of the Fair Labor Standards Act and related state wage and hour laws remain hot. That area remained an intense area of focus for the plaintiffs’ bar. In fact, plaintiffs filed more wage and hour class and collective actions in 2025 than any other type of complex litigation. That continues to give this area in particular outsized importance for employers.

Jerry: One of the core issues that we track is the ability of plaintiffs’ lawyers to certify their cases. In the class action space, obviously, certification is the holy grail. Cases rise and fall on it, and those certification rates are highest in several areas, including wage and hour. But at the same time, what we’re seeing is there are a myriad of standards now that have replaced the original standard articulated by a court called Lusardi in 1987 in the District Court of New Jersey. What’s going on, and what did 2025 represent in this space, Jen?

Jennifer: So, great question. So, there is a first stage and a second stage to these cases, traditionally, as you know. In the first stage, to conditionally certify a collective action per the Lusardi standard you mentioned, Jerry, plaintiffs need to make what the courts call this modest factual showing that they’re similarly situated to the members of their proposed collective action. That’s a fairly low threshold, and plaintiffs usually rely on declarations, from themselves, or maybe from a few other employees as well, sometimes some time in payroll records, and that’s pretty much it to meet that standard. If they succeed, courts typically allow, then, the plaintiffs to send notice of the action to these potential collective action members, who then have the opportunity to opt in and join the case.

So that’s the first stage. And then in the second stage, after opt-ins join the case, and after some discovery, courts conduct a much more searching analysis of whether the plaintiffs and the opt-ins are actually similarly situated. Courts then, and only then usually, dig into things like job duties, nature of the claims, the proof, and whether the case realistically can be managed through trial on a representative basis. That usually happens when the employer moves to decertify, although sometimes the plaintiffs seek a final certification order.

So that two-step approach, until recently, was almost universally applied. And frankly, it’s still the dominant approach in most federal courts today. But that uniformity is really starting to fracture.

Jerry: It really is. It all started in 2021 with the Fifth Circuit and its decision in Swales v. KLM Transport Services, where the two-step process was abandoned entirely and collapsed into one hearing and one motion. And then two years later, in 2023, the Sixth Circuit opined and waded in to this area in a case called Clark v. A&L Home Care, which also collapsed the two-step process into one step, but with a different procedural and evidentiary standard. And then if things weren’t complicated enough, the Seventh Circuit weighed in on August 5, 2025, in a case called Richards v. Eli Lilly, to give district courts discretion to fashion a single up or down certification hearing on these areas.

Jennifer: Agreed. That Eli Lilly decision really laid out another new framework. To obtain notice under that standard, the plaintiffs need to make that threshold showing that there’s a material factual dispute as to whether the proposed collective action members are similarly situated. The defendants, though, are then expressly allowed to submit rebuttal evidence, and courts need to weigh that evidence before deciding the issue, in terms of whether to send notice. The Seventh Circuit also recognized that there’s some flexibility there. If the key evidence, for instance, is in the hands of employees who haven’t yet received notice, the court can authorize notice while deferring that final similarity determination. And some courts may allow limited expedited discovery to resolve the similarly situated questions before the court makes a determination.

Jerry: Well, the bottom line is, today we now have four different approaches, which is a head-scratcher, given that this is a piece of New Deal legislation enacted in 1938. And now it’s 2026, and parties are still arguing over how a court should approach a certification issue and a wage and hour collective action. And this is why I think that we were so honored to be cited in Supreme Court briefs that were submitted last week in Washington, in yet another case, this one from the Fifth Circuit, called Cracker Barrel, where, the losing party is, again, getting before the Supreme Court and saying, ‘you need to provide some direction here, because having four different standards makes no sense.’ What we see from a practical standpoint is the same employer can be sued in different jurisdictions, and because of these different standards, there could be different outcomes based on the same facts. So, it’s something we’ll be watching closely in 2026 to see if there’s some uniformity or change in the direction of federal courts in dealing with these certification issues in the wage and hour space.

Jennifer: That’s good, absolutely. Let’s pivot now to our second publication, the Private Attorneys General Act Review – 2026. So, as a refresher, the California Private Attorneys General Act, or PAGA, allows employees to step into the shoes of the labor commissioner and seek civil penalties for labor code violations. So, for more than a decade, PAGA claims have been among the most frequently filed in California. Plaintiffs historically have favored PAGA over class actions for several reasons, including because of the relaxed requirements, to maintain that case on a representative basis. For instance, in PAGA, there’s no requirement to go through a class certification process. According to data from the California Department of Industrial Relations, the number of PAGA notices filed with the state LWDA reached an all-time high in 2025, continuing that trend that’s really been building for decades.

Jerry: Well, I know, Jen, you have a nationwide defense practice in class actions, but as a member of the California Bar and resident in both our Los Angeles and San Francisco offices, you spend a considerable amount of time defending employers in the state of California. Seemed to me there was a kind of an earthquake out there with a major decision in 2025 in the Lyft case. Why, in your opinion, was that case so significant to employers, sued under the PAGA statute in California?

Jennifer: Great question, Jerry. So that case you’re referring to is Turrieta v. Lyft. In that case, the California Supreme Court held that plaintiffs in separate PAGA actions cannot intervene in, object to, or seek to vacate a settlement reached in another PAGA case. The California Supreme Court there emphasized that the state is the real party in interest, that PAGA only requires notice and oversight by the LWDA and the trial court. The California Supreme Court noted that permitting intervention would result in a PAGA claim involving multiple sets of lawyers all purporting to advocate for the same client and fighting over who could control the litigation and the settlement process, and who could recover the attorneys’ fees. So, not only does PAGA not itself address such complexities, but such a messy situation would thwart the pursuit of PAGA claims contrary to the state’s purpose.

Jerry: My sense is the factual backdrop here is very important insofar as multiple Lyft drivers filed overlapping PAGA actions. One plaintiff had settled for $15 million – one of the more substantial pocket settlements of the year – and the other plaintiffs tried to derail that settlement. And I think sometimes, conceptually, it’s good to analyze decisions as door openers or door closers, and certainly the California Supreme Court, closed the door and shut down those efforts to intervene. Which is somewhat contrary to the general notion out there that the California Supreme Court always rules in favor of workers and against employers.

Jennifer: Exactly, I agree. That ruling gives employers much more certainty. It means they can resolve one PAGA case without fear that other plaintiffs will come in, disrupt the settlement – provided, of course, that the court approves it. Taken together, I think these developments show just how dynamic wage and hour and PAGA litigation continues to be.

Jerry: Well, that underscores the rationale for our creation and publication of these two books on wage and hour and PAGA developments to help employers understanding this patchwork quilt of laws and standards, where things stand, where they’re headed, and how to navigate these risks. So, we encourage our readers to take a look at those 2026 editions of the wage and hour and PAGA handbooks. The price is right: they’re for free. And you can download them, and they’re searchable – you could even look at them on your phone.

Well, thanks for joining me today, Jen, and thank you to all our listeners, and we’re glad you tuned in for this, first of the year installment of the Class Action Weekly Wire.

Jennifer: Thanks, Jerry, and thank you, listeners. It was a pleasure to be here today.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Sean McConnell with their discussion a certification ruling issued in an antitrust class action brought by consumers alleging ticket seller Live Nation monopolized the live entertainment market following its merger with Ticketmaster.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners and readers, for joining us for our next episode of our podcast series entitled The Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today is my partner, Sean McConnell, of our Philadelphia office, who is the chair of our antitrust practice group.

Sean McConnell: Great to be here, Jerry. Thanks for having me.

Jerry: Today, we’re here to discuss a recent ruling from the U.S. District Court for the Central District of California in which a federal judge certified a nationwide consumer class in antitrust litigation against Live Nation Entertainment and Ticketmaster. This past week, U.S. District Court Judge George Wu certified a class of consumers who had purchased primary concert tickets through Ticketmaster or other Live Nation platforms dating back to 2010. The ruling adopted a tentative decision the court had issued earlier this month. Sean, can you tell us a little bit of the context of the antitrust implications of this ruling?

Sean: Sure, Jerry. The plaintiffs allege that Live Nation used its market power following the transaction with Ticketmaster and that acquisition to suppress competition and inflate ticket prices for concertgoers. The court concluded that the plaintiff satisfied the requirements for class certification under Rule 23, including predominance. Live Nation’s opposition focused primarily on the absence of a nationwide market. The company argued that ticket purchasing is inherently local, and that consumers do not seek alternatives outside their geographic area in response to price increases. Judge Wu rejected that framing. He reasoned that the case centers on ticketing services rather than individual tickets for individual concerts. From the court’s perspective, those services operate at a national scale, supporting certification on a nationwide basis.

Jerry: I know that expert opinions are at the heart of class certification efforts by the plaintiff’s bar and antitrust cases, and here, the court rejected the defendant’s critiques of the plaintiff’s expert report. Stating that the plaintiffs had adequately addressed those challenges, and that Rule 23 does not require the court to resolve competing expert opinions or models at the class certification stage. In this instance, who’s actually included, then, in the certified class?

Sean: Great question, Jerry. The certified class includes only primary ticket sales and excludes secondary market resales. The case has been pending since 2022, and proceeds alongside enforcement actions brought by the Department of Justice and several state attorneys general, which have alleged similar anti-competitive conduct and violations of a prior consent decree when Live Nation and Ticketmaster first merged back in 2010.

Jerry: At a 100,000-foot level, what exactly are the implications of this decision? I know that class certification is the holy grail in these sorts of cases. Is this ruling significant for companies?

Sean: Yes, from a corporate perspective, the decision underscores the litigation risk associated with vertically integrated platforms that operate at a nationwide scale. Courts may look beyond localized consumer behavior and focus instead on centralized pricing, contracting, and service models. The ruling also illustrates the relatively modest evidentiary burden plaintiffs face at the class certification stage in complex antitrust cases. Companies should not assume that disputes over market definition or expert methodology will prevent certification.

Jerry: Well, that’s a great overview, Sean, of those implications. I know that when antitrust cases are certified as viable class action, exposure increases incrementally, if not significantly, and shifts the leverage to the plaintiffs, which in turn increases the pressure to settle and expands both the scope and the cost of discovery.

Sean: Exactly right, Jerry. For companies in highly concentrated or regulated markets, this case reinforces the importance of proactive antitrust risk assessment, careful compliance with merger-related obligations, and early litigation strategy focused on class certification.

Jerry: Well, thanks, Sean, for your detailed analysis of the implications of this ruling, and thanks so much for being here today. Happy holidays to all of our listeners, and we’re glad you were able to tune in to this final 2025 edition of the Class Action Weekly Wire.

Sean: Thank you, Jerry, and thank you, listeners. As always, it was a pleasure to be here, and happy holidays, everyone.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Bernadette Coyle with their discussion of the 2025-2026 edition of the American Tort Reform Association’s (“ATRA”) “Judicial Hellholes Report,” which details the eight least favorable venues for corporate defendants across the country.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Thank you for being here, loyal blog listeners and readers, for the next episode of our ongoing series entitled The Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today is my colleague, Bernadette Coyle. Welcome, and thanks for being on the podcast.

Bernadette Coyle: Thanks, Jerry, I’m very happy to be here.

Jerry: Today, we’re discussing the annual report prepared by the American Tort Reform Association, known by the acronym ATRA, which is called the “Judicial Hellholes Report.” It focuses on litigation issues and identification of jurisdictions likely to have unfair or biased administration of justice that, in essence, are very difficult places in which corporate defendants are sued. This is an important read for corporate counsel facing class action litigation, because it identifies the who, what, when, where, and how of what jurisdictions are most difficult in which to defend class action litigation.

Bernadette: That’s right, Jerry. The report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, which generally is to the disadvantage of defendants.

Jerry: This year’s report identified eight total jurisdictions in its list, down from 10 that were identified last year. I’m sure our loyal blog listeners are anxious to hear what jurisdiction came out on top of the list as the most unfavorable jurisdiction in which to be sued.

Bernadette: Jerry, topping the list this year is Los Angeles. Although California has long been considered a plaintiff-friendly state, this year in particular, lawsuit abuse and judicial bias in Los Angeles have set it apart and pushed it to the top of the list. The report points to a $1 billion nuclear verdict, allegations of litigation abuse, and courts leaning into novel liability theories that broaden exposure for defendants. And small businesses are targeted in particular, being hit with ADA and no injury suits, while arbitration continues to face judicial resistance in California.

Jerry: Well, speaking from my own personal experience, I would agree it’s a very difficult place to practice law and defend cases, and its inclusion and placement at the top of the list comes as no surprise. Moving to number two is New York Metro, New York City. What’s happening there on the list?

Bernadette: New York City remained at number two this year, and the ATRF calls it a “fraudemic.” The city continues to produce nuclear verdicts, courts are expanding product liability theories, especially against tech companies, and both no-injury filings and asbestos cases remain heavy in New York City.

Jerry: Number three came in with South Carolina. It’s been on the radar for years of the American Tort Reform Association.

Bernadette: Exactly. The ATRF criticizes the relaxed causation standard, frequent sanctions, and even notes instances where courts increased jury awards because it believed that the jury did not go far enough.

Jerry: Let’s hit the rest of the list of eight. Louisiana, I believe, comes in fourth.

Bernadette: Yes, the first coastal litigation case finally went to trial, and it ended in a nine-figure verdict. Interestingly, the ATRF also points to political connections between plaintiffs’ lawyers and state leadership.

Jerry: Fifth is Philadelphia jurisdiction, where we’re handling many class actions.

Bernadette: Right, and also last year’s defending champion. A RICO lawsuit has raised allegations of fraud in the court system, and the complex litigation Center continues to attract mass tort filings, and historic nuclear verdicts are becoming more common.

Jerry: Sixth is Missouri in general, and St. Louis in particular. What are you seeing there?

Bernadette: Yes, the ATRF says courts there continue to allow junk science, and out-of-state plaintiffs are targeting St. Louis small businesses with ADA lawsuits. Judges have even overturned jury verdicts that they disagreed with.

Jerry: Seventh is a familiar Illinois trio, the counties of Cook, Madison, and St. Clair, the latter two of which were the motivating factors for the Class Action Fairness Act of 2005 that President Bush signed into law to allow for easier removal from state court to federal court. What’s happening on the Illinois front?

Bernadette: They are described as ground zero for baby formula litigation supported by questionable science. Also, litigation tourism persists, asbestos filings are high, and nuclear verdicts continue.

Jerry: And rounding out the list, at number eight is the state of Washington in general, and King County, in particular, where we’re seeing a rise of many employment-related class actions.

Bernadette: Correct. The report highlights the reinstatement of a nuclear verdict, expanded asbestos liability, and King County’s role in pioneering climate change litigation against energy companies. And as we’ve seen, there’s also been a sharp increase in class actions brought under the EPOA this year in Washington.

Jerry: Let’s shift now to the ATRA’s watch list. It highlights six jurisdictions that are not full judicial hellholes, but have been trending in that direction. What should our listeners know about the watchlist?

Bernadette: Three Georgia counties, Gwinnett, Fulton, and Cobb, are under scrutiny despite statewide reforms. The Pennsylvania Supreme Court did have a quieter year this year, but remains influential, especially in forum shopping and arbitration filings. Texas is seeing a rise in pro-plaintiff leanings and state-sponsored lawsuits. Michigan has major decisions pending, Louisiana still faces fallout from fraud schemes, and Kentucky continues to produce nuclear verdicts.

Jerry: The report also calls out what it calls dishonorable mentions. What stands out to you in terms of that list?

Bernadette: There are three main concerns noted in the report. First, the Fourth Circuit’s broad approach to public nuisance, a Colorado evidentiary ruling that the ATRF finds troubling, and Ohio appellate courts that are permitting unlimited non-economic damages.

Jerry: Well, it’s not all doom and gloom. There is a little bit of positive light. What does the report, refer to in terms of what it characterizes as “points of light”?

Bernadette: Yes, and there are some significant ones. Colorado rejected medical monitoring damages, Delaware and Maine pushed back on junk science and public nuisance expansion, North Carolina reaffirmed caps on non-economic damages, and the Utah Supreme Court eliminated phantom damages.

Jerry: Well, Bernadette, thanks so much for guiding us through the tour of the 2025-2026 Judicial Hellholes Report. It’s essential reading for corporate counsel, and certainly any company involved in high-stakes litigation or defending class action litigation. The report certainly manifests what we see on a daily basis in terms of the epicenters of class action litigation, and where the plaintiffs’ bar tends to file their cases in terms of trying to gain an advantage over corporate defenses.

Well, thanks so much for being here, Bernadette, and providing us with your thought leadership in this space.

Bernadette: Thank you for having me, Jerry, and thank you, listeners.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and senior associates Hayley Ryan and Tyler Zmick with their analysis of an Illinois federal court decision granting class certification in a BIPA suit alleging unlawful collection of biometric voice data.   

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Thank you, loyal blog readers and listeners, for joining us again for this week’s edition of the Class Action Weekly Wire. I’m Jerry Maatman, a partner with Duane Morris, and joining me today are my colleagues Hayley Ryan and Tyler Zmick. Thanks so much for being here.

Tyler Zmick: Great to be here, Jerry. Thank you for having me.

Hayley Ryan: Glad to be here, Jerry. Thanks so much.

Jerry: Today, we’re diving into a major ruling from the U.S. District Court for the Northern District of Illinois, entitled Gundersen v. Amazon.com. It’s a lawsuit against Amazon regarding the Alexa Voice ID feature and alleges violation of the Illinois Biometric Information Privacy Act, known by the acronym BIPA. Let’s start with the basics. Hayley, what exactly is Voice ID?

Hayley: Sure. Amazon’s Alexa has been around for a while, but since October 2017, it’s included a feature called Voice ID. This feature essentially trains Alexa to recognize a specific user’s voice. Users go through an enrollment process in the Alexa app, where they read several prompted phrases, which are called “utterances,” so Alexa can “learn” their voice and later personalize responses. The plaintiffs in this case alleged that this process creates a “voiceprint,” which counts as a biometric identifier under the BIPA. And the BIPA strictly regulates the collection, storage, sale, and disclosure of biometric data.

Jerry: As I understand it, the plaintiffs in the case allege that Amazon never told users of Alexa that the system would be creating or storing biometric “voiceprints.” Was that the gravamen of the claim?

Tyler: Exactly right. So, the prompts that were presented to the plaintiffs mentioned “Voice ID,” and the prompts also authorized Amazon to “create, use, improve, and store your Voice ID,” but the plaintiffs, who had all enrolled in Voice ID, alleged that those prompts failed to satisfy BIPA because they never used the specific statutory terms “voiceprint,” “biometric identifier,” or “biometric information.”

Jerry: Thanks for that explanation, Tyler. Can you walk our listeners through the exact allegations at issue in the lawsuit under BIPA, and what the plaintiffs claimed were violations?

Tyler: Sure. So, plaintiff sued Amazon under three sections of BIPA. The first one is Section 15(b) of BIPA for alleged collection of biometric data, specifically voiceprints, without providing the required written disclosures and obtaining the plaintiffs’ informed written consent. Number two, plaintiffs allege that Amazon violated Section 15(c) for allegedly profiting from the biometric data. And finally, plaintiffs alleged a violation of Section 15(d) for allegedly disclosing biometric data without the plaintiff’s consent. And, as I’m sure many people know, BIPA also gives plaintiffs a private right of action where they can recover $1,000 in statutory damages per negligent violation, or $5,000 in statutory damages per reckless or intentional violation. When you have potentially more than one million Illinois Voice ID users, which is the size of the class in this case, the damages can add up pretty quickly.

Jerry: As I read the opinion, the plaintiffs sought certification of a class defined as “all natural persons in Illinois for whom Amazon created a voiceprint on or after June 27, 2014,” and in terms of $5,000 per class member and over a million – obviously a whopper of a class. Let’s talk about how the court handled the Rule 23 analysis with respect to the plaintiffs’ motion for class certification.

Hayley: Sure, Jerry. Well, the court first found that the proposed class easily met the numerosity requirement, since Amazon admitted that about 1.18 million Alexa users with Illinois billing addresses enrolled in Voice ID between 2017 and 2023. And the court also determined that the plaintiffs’ proposed class met the commonality requirement of Rule 23, because everyone went through the same enrollment process, got the same disclosures, and the questions, such as whether Voice ID creates a biometric identifier, applied across the board.

Jerry: Rule 23(a)(3), of course, deals with typicality, and that seemed to me where the opinion got very interesting in terms of the court’s analysis.

Hayley: Yes, definitely, Jerry. The court actually rejected the named plaintiff Gunderson as a class representative, because he enrolled in Voice ID years after the lawsuit had already been filed, meaning that being a named plaintiff, he knew, or should have known, that enrollment would create a voiceprint. That opened him up to unique defenses like waiver or ratification. And the court said that those unique defenses could become a “major focus” of litigation, making him an atypical class representative.

Tyler: That said, the court did accept plaintiffs Block and Stebbins as typical representatives. So, Mr. Block enrolled in Voice ID before he was ever involved in the case, and the court said that Amazon’s arguments about his professional relationship in prior cases with plaintiffs’ counsel were too speculative. The court also found that Mr. Stebbins’ claims were typical to those of the class, even though Amazon attacked his credibility based on inconsistencies in his deposition testimony. The court said that nothing in the testimony rose to the level that would harm the class.

Jerry: Seemed to me the discussion and analysis of typicality bled into the discussion of adequacy, and here the court ran through usual topics of concern, including conflicts of interest, relationships with class counsel, and the credibility of the named plaintiff.

Hayley: Right, Jerry. And ultimately, the court found Mr. Block and Mr. Stebbins adequate class representatives, but not Mr. Gunderson. The court also noted that continuing to use Voice ID or not deleting it did not make the plaintiffs inadequate class representatives. That applied uniformly across users.

Jerry: Let’s move on to the Rule 23(b) requirements. Inasmuch as predominance is usually the make-or-break-it issue for certification in BIPA cases, how did the court rule on 23(b)(2)?

Tyler: That’s a great question, Jerry. The court found predominance satisfied for all three of the BIPA claims. The court stated that whether Voice ID creates a “voiceprint” was a common question that applied to all class members and also whether Amazon’s disclosures satisfied BIPA’s notice requirements also involved a common question, because the disclosures were identical for everyone in the class. Regarding the Section 15(c) and Section 15(d) claims, the plaintiffs said that they would prove that Amazon’s data sharing practices violated BIPA through common evidence, which the court accepted at this stage. Interestingly, Amazon also tried to argue that the class was not ascertainable, because BIPA does not apply to Voice ID users who were not physically in Illinois during enrollment and Amazon noted that the evidence did not definitively show whether a user was, in fact, in Illinois at that time. But the court ruled that plaintiffs presented enough evidence that Amazon’s internal records can determine the state that a user was in at the time of enrollment. So, ultimately, the court rejected Amazon’s extraterritoriality argument against class certification.

Hayley: And as to the superiority requirement of Rule 23 , the court ruled that with 1.2 million potential class members, a class action would be a far more efficient method of adjudication, as opposed to millions of individual lawsuits.

Jerry: Well, this certainly constitutes a major development in biometric privacy class action litigation, insofar as it is an order that certifies perhaps the largest class in the state of Illinois, and even in the United States, over the past year. Our Duane Morris Class Action Review of 2026, due out in the first week of January, will analyze all the opinions throughout the United States, and has a special BIPA appendix chapter that will talk about this ruling and others. Before we wrap up today, any predictions as to this case and what we will see in terms of ongoing BIPA litigation in Illinois?

Tyler: So, I think for one, in this case, Amazon will likely lean heavily into the argument that Voice ID does not create a voiceprint under BIPA, especially at summary judgment, so that is very much a merits argument that Amazon tried to raise at class certification. But the court declined to hear that argument because it went to the merits rather than class certification-related issues. I think Amazon will likely also seek to appeal the class certification order up to the Seventh Circuit.

Hayley: Yeah, I agree with you, Tyler, and I also expect more litigation in other jurisdictions, given the rise of voice-activated technology, such as cars, appliances, smart TVs – you name it. BIPA is still the strictest law, but it’s not the only one anymore.

Jerry: Well, thanks so much, and great insights and thought leadership from you both, Hayley and Tyler. And thank you, listeners, for joining us for today’s discussion about the largest BIPA class certification order of 2025. We’ll be sure to keep you up to date and informed of all developments involving this and other BIPA and privacy class actions. Happy Thanksgiving, everyone, and thanks for being here.

Hayley: Thanks for having me on the podcast, Jerry, and thanks to the listeners for being here.

Tyler: Thanks, everyone!