By Gerald L. Maatman, Jr., Tyler Z. Zmick, and George J. Schaller
Duane Morris Takeaways: On April 4, 2025,inRodriguez v. Autotrader.com, Inc., No. 24-CV-08735, 2025 U.S. Dist. LEXIS 70074 (C.D. Cal. Apr. 4, 2025),Judge R. Gary Klausner of the U.S. District Court for the Central District of California dismissed with prejudice a class action complaint which asserted violations of the California Invasion of Privacy Act (“CIPA”) for lack of standing. Plaintiff admitted she was a “tester” and knew that defendant Autotrader’s website contained tracking devices before accessing it, leading the Court to rule that Plaintiff failed to allege an unlawful use of pen registers and trace devices under the CIPA.
This ruling is welcome news for businesses sued by so-called “tester” plaintiffs, who actively seek out websites to “test” for potential CIPA violations.
Case Background
Plaintiff Rebeka Rodriguez filed a class action complaint against Autotrader.com, asserting claims under (i) CIPA § 631 for violating California’s wiretapping and eavesdropping statute and (ii) CIPA § 638.51 for violating California’s statute prohibiting the use of pen registers and trace devices.
Plaintiff claimed that Autotrader’s website immediately installs third-party tracking software that collects various types of information to deliver targeted advertising. She alleged that she ran a search containing “confidential” and “private” information using a search bar on Autotrader’s website, and that such information was then shared with third parties without her consent. Plaintiff also claimed that when she visited the website, tracking software was installed on her browser which “captured and sent identifying information to third parties.” Plaintiff admitted that she was actively seeking out privacy violations when she visited Autotrader’s website.
On March 14, 2025, the District Court granted Autotrader’s request that Plaintiff’s CIPA § 631 claim be dismissed with prejudice for lack of standing. See Rodriguez v. Autotrader.com, Inc., No. 24-CV-08735, 2025 U.S. Dist. LEXIS 47308, at *1 (C.D. Cal. Mar. 14, 2025). The Court’s March 14 order also directed the parties to show cause in writing “whether Plaintiff has standing to bring her § 638.51 claim.” Id.
The Court’s Order
On April 4, 2025, the Court sua sponte dismissed Plaintiff’s remaining pen register claim under CIPA § 638.51 for lack of standing. The Court relied on the same analysis used in dismissing Plaintiff’s § 631 claim – specifically, Plaintiff was “a tester that actively [sought] out privacy violations,” she “had no expectation of privacy’ when she visited [Autotrader’s] website, and therefore, lacked an injury sufficient to establish standing.” Rodriguez v. Autotrader.com, Inc.,No. 24-CV-08735, 2025 U.S. Dist. LEXIS 47308, *2 (C.D. Cal. Apr. 4, 2025). In its ruling, the Court determined that neither party disputed that Plaintiff’s § 638.51 claim “requires the same disclosure of sensitive information and reasonable expectation of privacy as her § 631 claim.” Id.
The Court was not persuaded by Plaintiff’s argument that her status as a tester did not preclude “standing even though she expected or sought out an injury,”finding her supporting authority distinguishable because the cases she relied on involved “First Amendment and ADA claims for which the plaintiffs were injured regardless of their expectations or intentions.” Id. at *3. Accordingly, the Court dismissed Plaintiff’s § 638.51 claim with prejudice.
Implications For Companies
While the ruling in Rodriguez is a positive development for businesses, the scope of the decision was limited in that Plaintiff lacked standing only because her claim required a violation of her “reasonable expectation of privacy.” “Tester” plaintiffs in other class action lawsuits frequently assert claims against website hosts and website service providers and can proceed past the motion-to-dismiss stage.
While companies cannot prevent “tester” plaintiffs from filing similar lawsuits, companies can protect themselves from liability under the CIPA by employing safeguards on their websites in the form of data-tracking disclosures and obtaining consent from users.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Shannon Noelle, and Anna Sheridan
Duane Morris Takeaways: On May 8, 2025, the Beard Group sponsored the Class Action Money & Ethics Conference in New York City. During the conference, over 200 attendees discussed key issues impacting class action litigation in 2025. We were privileged to chair the Conference and present the keynote address on class action litigation trends for the past year and what 2025 has in store for Corporate America. The discussion at the program underscores the cutting-edge issues facing companies in this area of law.
Key Trends For The Past Year
In our keynote address, we discussed the top ten developments in the class action litigation space. The leading trends center on the new era of heightened risks and elevated exposures that pivot on record-breaking settlement numbers, the high conversion numbers for class certification motions into certified classes, and the rise in privacy and data breach class actions.
On the settlement front, 2022 saw $66 billion in total proceeds when measured by the top ten settlements in all areas of law. In 2023, that figure totaled $51 billion, for a combined total of $117 billion over the past 24 months. And in 2024, those numbers came in at $42 billion, which pushed the settlement numbers to $159 billion for the past 36 months.
In terms of class certification motions, the Plaintiffs bar successfully secured certification in 63% of cases over the past year. Those figures ranged from nearly 83% in WARN lawsuits to 37% in RICO cases. That said, the plaintiffs’ bar has proven its track record to convert class action lawsuit filings in to certified classes at a high rate.
In the privacy and data breach space, such claims became ubiquitous in 2024, with a virtual explosion in those types of lawsuits. While certification rates were quite low in data breach situations, the plaintiffs’ bar secured certification in privacy class actions at a higher rate.
We also discussed how class actions over environmental. social, and governance issues went mainstream in the past year. We predicted that ESG class actions will continue to increase, especially as the plaintiffs’ bar refines their theories of recovery and begin to monetize their claims. In particular, securities fraud class actions over DEI commitments are increasing as a result of the U.S. Supreme Court’s recent decision in Students For Fair Admissions, Inc., et al. v. President And Fellows Of Harvard College, 600 U.S. 181 (2023). Both plaintiffs’ lawyers and defense counsel anticipate more litigation in this space.
Data Breach Panel
An interesting panel discussion – consisting primarily of plaintiffs’ lawyers – ensued after the keynote address on wiretapping class claims under the Video Privacy Protection Act and data privacy class action litigation. They reflected on the patchwork quilt of rulings in these areas over the past year and the low certification rates due to problems in surmounting standing issues based on lack of injury-in-fact showings.
The panelists predicted a subtle shift in privacy and data breach lawsuits to effectuate a “work around” to these impediments. Multiple plaintiffs’ counsel predicted more reliance on state law claims and litigation of class-wide claims in state court.
Panel On Class Notice Strategies
The next panel focused on trends for class notice in 2025 and how artificial intelligence is now mainstream in terms of its use to facilitate the notice send to class members. The panelists expressed how these practices are quite innovative and rapidly evolving. Notice through social media and/or texts or email also is considerable cheaper than U.S. Mail, which is driving down settlement administration costs.
The challenge, however, is to prevent fraudulent claims from individuals seeking a share of the settlement pot. As to take rates, social media advertising is driving the rates upward, but the rates in data breach cases remain low at 1% to 5% (as compared to other types of settlements).- Class member demographics also impact the take rate, as older individuals are apt to view social media notice as “junk mail” or a scam. Conversely, staying ahead of fraudsters has created an imperative for settlement administrators (e.g., where settlement shares are claimed by an IP address of a bot).
Panel On Fraud In The Class Action Process
Another panel discussed the rise of fraudsters in the class action space. Some involve “deep fakes” of persons who seek to assert false claims as named plaintiffs or class members. Others involve cyber-criminals who infiltrate the settlement administration process through artificial intelligence software and seek class settlement shares on a false basis.
Judicial responses have run the gamut from shutting down the settlement administration process and rebooting it with enhanced security measures to referrals to law enforcement personnel to combat fraud. Panelists predicted that judges are apt to ratchet up the scrutiny of final settlement approval of class actions, and possibly promote direct mail notice over digital communications.
Implications For Companies
Class action litigation is a fact of life for corporations operating in the United States. Today’s conference underscored that change is inevitable, and class actions litigation is no exception.
Duane Morris Takeaways: Given the importance of compliance with workplace anti-discrimination laws for our clients, we are pleased to present the third annual edition of the Duane Morris EEOC Litigation Review – 2025. The EEOC Litigation Review – 2025 analyzes the EEOC’s enforcement lawsuit filings in 2024 and the significant legal decisions and trends impacting EEOC litigation for 2025. We hope that employers will benefit from this deep dive into how the EEOC’s priorities reveal themselves through litigation. Click here to download a copy of the EEOC Litigation Review – 2025 eBook.
The Review explains the impact of the EEOC’s six enforcement priorities as outlined in its Strategic Enforcement Plan on employers’ business planning and how the direction of the Commission’s Plan should influence key employer decisions. In its annual performance report for FY 2024, the EEOC touted a record $700 million in monetary recoveries for workers through litigation and administrative avenues. Moving into FY 2025 with a $33.22 million budget increase for the EEOC and significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative.
The Review also contains a compilation of significant rulings decided in 2024 that impacted EEOC-initiated litigation and a list of the most significant settlements in EEOC cases in 2024.
We hope readers will enjoy this new publication. We will continue to update blog readers on any important EEOC developments, and look forward to sharing further thoughts and analysis in 2024!
Mark your calendars for our biannual webinar analyzing the latest EEOC developments on Monday, May 5, 2025 from 12:00 p.m. to 12:30 p.m. Central. Reserve your virtual seat for the program here. Join Duane Morris partners Jerry Maatman, Jennifer Riley, Alex Karasik and Greg Tsonis for a live panel discussion analyzing the latest impact of the dramatic changes at the EEOC, including its new strategic priorities and the array of EEOC lawsuits filed in the first six months of fiscal year 2025.
Our panel will empower corporate counsel, human resource professionals and business leaders with key insights into the EEOC’s latest enforcement initiatives and strategies designed to minimize the risk of drawing the agency’s scrutiny in what projects to be a transformative year for the Commission.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, and Gregory Tsonis
Duane Morris Takeaways: The EEOC’s fiscal year (“FY 2025”) spans from October 1, 2024 to September 30, 2025. Through the midway point, EEOC has filed 23 enforcement lawsuits, an uptick when compared to the 14 lawsuits filed in FY 2024, but still down from the 29 filed in the first six months of FY 2023. Traditionally, the second half of the EEOC’s fiscal year – and particularly in the final months of August and September – are when the majority of filings occur. However, an early analysis of the types of lawsuits filed, and the locations where they are filed, is informative for employers in terms of what to expect during the fiscal year-end lawsuit filing rush in September.
Cases Filed By EEOC District Offices
In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most active in terms of filing new cases over the course of the fiscal year. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district office.
The most noticeable trend of the first six months of FY 2025 is that the Philadelphia District Office has already filed five lawsuits. Indianapolis has four lawsuit filings, and Atlanta and Houston have three each. Many of the district offices have yet to file a lawsuit at all in FY 2025. But for employers in the Philadelphia, Indianapolis, Atlanta, and Houston metropolitan areas, these early tea leaves suggest that a higher likelihood of pending charges may turn into federal lawsuits by September.
Analysis Of The Types Of Lawsuits Filed In First Half Of FY 2025
We also analyzed the types of lawsuits the EEOC filed throughout the first six months, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities. The chart below shows the EEOC filings by allegation type.
In the first half of FY 2025, 64% or 14 of the 22 filings contained Title VII claims. The percentage of each type of filing has remained fairly consistent over the past several years, until the first half of FY 2024, when nearly every filing contained Title VII claims, with 12 of the 14, or 87% alleging these violations. This year’s filings are more aligned with years prior to FY 2024. In FY 2023, Title VII claims comprised of 59% of all filings, 69% in FY 2022, and 62% in 2021. ADA cases were alleged in 10 or 45% of the lawsuits filed, a substantial increase from FY 2024, where ADA claims were only 21% of the cases in the first half of the year. There were also two ADEA lawsuits filed.
The graph set out below shows the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act).
The industries impacted by EEOC-initiated litigation have also remained consistent in FY 2025. The chart below details that hospitality, healthcare, and retail employers have maintained their lead as corporate defendants in the last 18 months of EEOC-initiated litigation.
Notable 2025 Lawsuit Filings
Sexual Harassment
In EEOC v. Teamlyders LLC (E.D. Mich. Feb. 28, 2025), the EEOC filed an action against six entities operating Taco Bell restaurants in Michigan, alleging that a senior area manager subjected female employees, including multiple teenage employees, to sexual harassment. The EEOC contended that the harassment included inappropriate sexual comments, such as asking if underage employees were sexually active, asking an employee if she would give him “sugar” when she turned 18, unwanted and inappropriate touching of females under age 18, and asking an assistant manager for videos or images of her having sex with her boyfriend. The EEOC also asserted that the defendants failed to take effective action against the manager, despite receiving multiple complaints from different employees, supervisors, and managers, and that one female employee was terminated immediately after making a complaint about the manager’s conduct.
Sex / Disability Discrimination
In EEOC v. Equinox Holdings, Inc., Case No. 24-CV-3597 (D.D.C. Dec. 23, 2024), the EEOC brought suit alleging that the defendant, which owns and operates fitness facilities and gyms nationwide, illegally discriminated against a woman who suffers from endometriosis on the basis of disability and sex when it failed to hire her as a front desk associate at its sports club in Washington because of her “monthly cycle,” failed to provide her with a potential need for a reasonable accommodation, and failed to accommodate her disability during the job application process. The EEOC asserted that the applicant, who previously worked in similar positions for other gyms, asked for her second-round interview to be delayed by a few days because she experiences painful menstrual cramps and was anticipating being in that situation imminently. The EEOC alleged that the defendant rejected the applicant, and that the manager with whom she had her initial interview told her in a text message that she was passed over for the position because there was a concern that she would be absent in the future “due to [her] monthly cycle.” The EEOC also alleged Equinox subsequently hired a male applicant with no prior experience working in gyms for the front desk associate position.
Disability Discrimination
In EEOC v. Alto Experience, Inc., Case No. 24-CV-2208 (E.D. Va. Dec. 6, 2024), the EEOC filed an action alleging that the defendant, a ride hailing company, violated the ADA when it denied reasonable accommodations and employment to deaf and hard-of-hearing individuals who applied to work as personal drivers, despite the availability of technological accommodations, and, in some instances, despite previous experience as drivers for other ride-hailing companies. The EEOC also alleged that some qualified deaf and hard-of-hearing individuals who were denied accommodations or employment as personal drivers were steered into in less-desirable car washing positions.
These filings illustrate that the EEOC will likely continue to prioritize sex, sex harassment, and disability discrimination claims in the second half of FY 2025.
Release Of Enforcement Statistics
On January 17, 2025, the EEOC published its Fiscal Year 2024 Annual Performance Report (“FY 2024 APR”), summarizing the Commission’s recent year of enforcement activity and recovery on behalf of U.S. workers. As the Annual Performance Report highlights, 2024 was a successful year for the EEOC, and the Commission recovered nearly $700 million for 21,000 individuals (a 5% increase over FY 2023). Significantly, according to the Commission it successfully resolved 132 merits lawsuits (a 33% increase over FY 2023) and achieved a successful outcome in 128 (or 97%) of all suit resolutions. See FY 2024 APR at p. 12. Given the Commission’s spike in enforcement activity, and its odds of prevailing, the Annual Performance Report reminds employers of the risks associated with an EEOC lawsuit and the need maintain and administer EEOC-compliant employment policies.
FY 2024 Highlights
In the EEOC’s 78-page Annual Performance Report, the Commission discusses, at length, its annual performance results and the significant victories it achieved in FY 2024. Specifically, the Report highlights that the Commission secured nearly $700 million for U.S. workers, the highest monetary amount in recent history, including over $469 million for private sector and state/local government workers through mediation, conciliation, and settlements, as well as more than $190 million for federal workers. The EEOC also notes that it filed 111 new lawsuits in 2024 on behalf of alleged victims of workplace discrimination, several of which were brought under the newly enacted and untested Pregnant Workers Fairness Act (“PWFA”). FY 2024 APR at p. 2
The Commission also reported that it received 88,531 new charges of discrimination this past fiscal year, representing a 9% increase over FY 2023. The EEOC experienced increased demand from the public, handling over 553,000 calls through its agency contact center, and receiving over 90,000 emails, which represented a growing demand for the Commission’s services. Id. at p. 3. The Commission also made it clear that it would continue to focus on systemic enforcement, and in 2024 alone, it resolved 16 systemic cases and obtained 23.9 million on behalf of 4,074 victims of systemic discrimination, and other significant equitable relief. Id.
Takeaways For Employers
By many accounts, FY 2024 was a record-breaking year for the EEOC. As demonstrated in the report, the Commission has pursued an increasingly aggressive and ambitious litigation strategy to achieve its regulatory goals. The data confirms that the EEOC had a great deal of success in obtaining financially significant monetary awards.
We anticipate that the EEOC will continue to aggressively pursue its strategic priority areas in FY 2025. There is no reason to believe that the annual “September surge” is not coming, in what could be another precedent-setting year. However, with a new presidential administration, there are apt to be changes in the coming year. We will continue to monitor EEOC litigation activity on a daily basis, and look forward to providing our blog readers with up-to-date analysis on the latest developments.
Finally, as previously talked about on the blog here – we are thrilled to announce that will be providing a webinar on May 5, 2025, to further analyze the above data. Employers will gain insight on what they should be doing to ready themselves for the remainder of FY 2025. Save the date and stay tuned!
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, Alex Karasik, and Greg Tsonis discussing the upcoming Duane Morris webinar that will provide analysis of key developments in the first six months of the EEOC’s fiscal year 2025 and the 2025 edition of the EEOC Litigation Review.
Join us on Monday, May 5 at 12 p.m. Central. Learn more and register here: Mid-Year Review of EEOC Enforcement Litigation and Strategy. Stay tuned for the new edition of Duane Morris’ EEOC Litigation Review launching on our blog this Thursday, May 1.
Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris and joining me today on the podcast are my partners Jen Riley, Alex Karasik, and Greg Tsonis. Thanks so much all of you for being here on the podcast.
Jennifer Riley: Thank you, Jerry, happy to be part of today’s podcast.
Alex Karasik: Thanks, Jerry. Glad to be here.
Greg Tsonis: Great to be here, Jerry.
Jerry: Today we have a message about a great webinar coming up, Duane Morris’ mid-year review of the EEOC enforcement litigation and strategy. The host will be the four of us, and we wanted to personally invite all of our listeners and readers to sign up and attend this 30-minute event. Jen, do you want to share with our listeners a little bit about the content of this webinar?
Jennifer: Sure, Jerry. The webinar will be a quick 30-minute panel discussion where the four of us will review the EEOC’s latest strategic priorities and lawsuit filings. We’ll take a look at the first six months of the Commission’s fiscal year 2025. We’ve analyzed the strategic priorities, the lawsuit filings, and other activity for fiscal year 2025 to date, and we’ll provide our listeners that analysis in a short half-hour segment.
Jerry: This virtual program is in response to many phone calls we’ve been receiving from general counsel, HR professionals, and the like in terms of what in the world is going on with the EEOC. So, we’ve designed this webinar for corporate counsel, human resource professionals, and business leaders to provide insights into the EEOC’s latest enforcement initiatives, and just what is going on in Washington, D.C. in terms of all things involving the EEOC. Alex, what are the webinar details?
Alex: The webinar is scheduled for Monday, May 5, from 12 p.m. to 12:30 p.m. Central time. We will provide the sign-up link in the episode transcript on the Class Action Defense Blog. This webinar is really great information-packed 30 minutes and it’s well worth your time – especially to get insights into the EEOC’s activities on the first half of its fiscal year.
Jerry: This webinar will prove to be very informative, and we hope all of our listeners for our weekly podcast series can tune in for it.
Greg: We also want to remind listeners that we are publishing our primer on EEOC litigation, the EEOC Litigation Review 2025 edition this coming Thursday, May 1. Given the importance of compliance with workplace anti-discrimination laws for our clients, the Review is a great resource for corporate counsel and human resources professionals. It’ll be available on the Class Action Defense Blog in e-book format.
Jerry: Well, thanks, Jen, Greg, and Alex for being here today. We’re looking forward to our webinar next week, and to sharing our insights in terms of all things EEOC and what is going on in Washington, D.C. And we’ll continue to share those details in updated blog postings and sharing further thoughts and analysis regarding what employers can do to get ready.
Jennifer: Thanks, Jerry, and, thanks to our audience. Hope to have everyone at the webinar next week.
Greg: Thanks for having me, Jerry, and thank you to all the listeners.
By Gerald L. Maatman, Jr., Anna Sheridan, and Brett Bohan
Duane Morris Takeaways: On April 22, 2025, in EEOC v. Waste Pro Fla., Inc., No. 23-CV-1132, (M.D. Fla. Apr. 22, 2025), Judge Wendy Berger of the U.S. District Court for the Middle District of Florida denied a joint motion for approval of a consent decree between the EEOC and Waste Pro of Florida, Inc. The Court determined that the parties failed to comply with the Middle District of Florida’s local rules and to provide specificities necessary for approval of the consent decree. For those who think that EEOC consent decrees simply get rubber-stamped, this order demonstrates that that this is not the case. This ruling illustrates the importance of litigants closely adhering to a courts’ local rules and always providing a legal and factual basis for the court to grant their motions, even when those motions are unopposed.
Case Background
On September 26, 2023, the EEOC, on behalf of charging party Fednol Pierre, filed a lawsuit against his former employer, Waste Pro of Florida, Inc. (“Waste Pro”) regarding allegations systemic racial harassment and retaliation under Title VII of the Civil Rights Act of 1964. (ECF 1.) The EEOC alleged that Waste Pro perpetuated a work environment that subjected Mr. Pierre to racial slurs and derogatory racial comments and retaliated against Mr. Pierre when he complained of harassment. Id. ¶¶ 36, 57.
On October 15, 2024, the parties jointly moved for approval of a consent decree. (ECF 65.) The motion spans two pages and includes details about the procedural background of the case, the claims made in the complaint, the settlement process, the decree’s compliance with the federal rules, and the decree’s public benefit. Id. Among other provisions, the agreement provided for a $1.4 million cash award to Mr. Pierre and other Black and Haitian employees and required Waste Pro to employ an officer to ensure compliance with civil rights laws. (ECF 65-1 ¶¶ 17–44.).
The Court’s Order
The Court denied the parties’ joint motion to approve the consent decree and found the motion failed on two independent grounds, including: (1) the motion did not provide a basis for approval and (2) the motion did not comply with Middle District of Florida Local Rule 3.01(a). (ECF 70 at 1.)
First, the Court determined that “the filing fails to provide this Court with any legal or factual basis” for granting the motion. Id. Courts do not rubber stamp consent decrees. See In Re Blue Cross Blue Shield Antitrust Litig.MDL 2406, 85 F.4th 1070, 1094 (11th Cir. 2023). Instead, courts must independently determine whether the agreements are “fair, adequate, and reasonable” by considering various factors. Bennett v. Behring Corp., 737 F.3d 982, 987 (11th Cir. 1984). In this case, the Court concluded that the parties had not provided it with sufficient information to undertake this analysis, so the Court could not approve the consent decree. (ECF 70 at 1.) As the parties here learned, courts generally will decline to enforce a consent decree that simply restates existing legal obligations without measurable terms.
Second, the Court held that “the filing fails to comply with Local Rule 3.01(a).” Id. The rule requires joint motions to include the word “unopposed” in the title. L.R. 3.01(a). It also requires a motion to include “a concise statement of the precise relief requested, a statement of the basis for the request, and a legal memorandum supporting the request.” Id. The parties titled the motion “Joint Motion for Approval of Consent Decree” and did not include a supporting legal memorandum; therefore, the Court determined that they failed to adhere to the requirements of the rule.
In sum, the Court concluded that it could not grant the parties’ motion without a firm factual or legal basis and that it would not excuse the parties’ violation of the local rules. (ECF 1 at 1.) Instead, it denied the motion and gave the EEOC one week to show cause why the lawsuit should not be dismissed with prejudice. Id.
Implications For Employers
The Court’s ruling in Waste Pro should serve as a stark warning to all litigants that they should always review a court’s local rules and be in the habit of giving the court a reason to rule in their favor, even when the relief they seek is unopposed.
This case demonstrates the serious consequences that can result from a lack of attention to detail. Here, the Court rejected the parties’ attempt to circumvent the Court’s independent duty to determine the fairness, adequacy, and reasonableness of the agreement.
When settling with the EEOC or any regulatory body, vague promises to “do better” will not suffice. If employers want their settlements approved, they cannot just recycle boilerplate language.
Duane Morris Takeaway: Class action litigation involving antitrust claims had several key developments in 2024, despite a relative lack of actual verdicts. Because antitrust remedies often allow recovery of treble damages, the incentive to settle these cases is often paramount. Additionally, plaintiffs are entitled to reasonable attorneys’ fees that may be substantial because of the complexity of this kind of litigation. As a result, most antitrust class actions are settled before trial, and one of the most crucial phase in these cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical.
The class action team at Duane Morris is pleased to present the 2025 edition of the Antitrust Class Action Review. We hope it will demystify some of the complexities of antitrust class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with antitrust class action litigation.
Click here to bookmark or download a copy of the Antitrust Class Action Review – 2025 e-book.
Stay tuned for more Antitrust class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.
By Gerald L. Maatman, Jr., Shannon Noelle, and Ryan T. Garippo
Duane Morris Takeaways: On April 3, 2025, in Salazar, et al. v. Paramount Global, d/b/a 247Sports, Case No. 23-5748, 2025 WL 1000139 (6th Cir. Apr. 3, 2025), the Sixth Circuit departed from two other federal circuits (i.e., the Second and Seventh Circuits) in its interpretation of “consumers” covered by the Video Privacy Protection Act (“VPPA”), and affirmed the district court’s dismissal of a putative class action on the basis that only consumers of audio-visual related materials are covered by the protections of the Act. The Sixth Circuit’s holding narrows the scope and reach of the statute and is a welcome reprieve for companies offering video content on their websites in connection with advertising technology (“adtech”).
Background
In September 2022, Michael Salazar brought a putative class action against Paramount Global (i.e., the owner of 247Sports.com), claiming that the media company violated the VPPA because it installed Meta Pixel on its website. Salazar alleged that Meta Pixel, a form of adtech, tracked his and putative class members’ video viewing history and disclosed it to Meta without his consent. He sought to represent a putative class of subscribers to 247Sports.com’s newsletter which contained links to articles (that could contain videos), photographs, and other content.
Salazar, however, did not allege that he was a subscriber of audio visual materials as contemplated by the statute. 18 U.S.C. § 2710(a)(1)-(4). To the contrary, he alleged that he was a subscriber of 247Sports.com’s newsletter, and that 247Sports.com separately provided audio visual materials to its customers. Salazar v. Paramount Global, 683 F.Supp. 3d 727, 744 (M.D. Tenn. 2023). But, the district court determined that Salazar’s interpretation of the VPPA was “unavailing.” Id. Indeed, “there [was] no allegation in the complaint that Plaintiff accessed audio visual content through the newsletter (or at all, for that matter). The newsletter [was] therefore not audio visual content, which necessarily means that Plaintiff [was] not a ‘subscriber’ under the VPPA.” Id.
Salazar is no stranger to this legal issue. Last year, in a virtually identical case, the U.S. District Court for the Southern District of New York, dismissed a putative VPPA class action brought by Salazar on the basis that “signing up for an online newsletter did not make Salazar a VPPA ‘subscriber.’” Salazar v. National Basketball Association, 118 F.4th 533, 536-37 (2d Cir. 2024). Salazar appealed that decision to the Second Circuit, which reversed the lower court, and held that the VPPA protects “consumers regardless of the particular goods or services rented, purchased, or subscribed to.” Id. at 549. If blog readers would like to learn more about the Second Circuit’s decision, a link to our post is included here.
Salazar appealed this case on the same grounds as his Second Circuit win and asked the Sixth Circuit to determine whether he was considered a “subscriber” and thus, a “consumer” under the VPPA.
The Sixth Circuit’s Decision
The Sixth Circuit affirmed the district court’s ruling and agreed that to be considered a “consumer” under the VPPA an individual must purchase goods or services of an audio-visual nature.
Judge John Nalbandian, writing for the Sixth Circuit, reasoned that the term “subscriber” must be viewed in its broader context, and in harmony with the other words in the statute such not to render associational words inconsistent or superfluous. Applying these canons, the Sixth Circuit explained that the words “goods and services” informed the meaning of the term “subscriber.” By using the terms together, the statute was intended to encompass only audio-visual goods or services provided by a video tape service provider, as opposed to any and all goods and services, provided by that company. In other words, if a video tape service provider makes “hammers” or a “Flintstones sweatshirt or a Scooby Doo coffee mug,” a consumer of such goods would not fall under the purview of the VPPA. Paramount Global, 2025 WL 100139, at *10.
In so holding, the Sixth Circuit departed from the Second and Seventh Circuits, including the near-identical lawsuit brought by Salazar himself, that found the phrase “goods or services” to encompass all goods and services that a provider places in the marketplace. Judge Rachel Bloomekatz, penning the dissent, reached the same conclusion. She opined that, under the majority’s interpretation, a provider could “stitch[] together” non-video transactions to provide information about audio-visual transactions that could reveal a consumer’s personal information. Id. At *12. The majority found such concerns unavailing and reasoned that the type of information available from the videos on Paramount Global’s website was not inherent to the newsletter and was “accessible to anyone, even those without a newsletter subscription.” Id. at *7.
As a result, the Sixth Circuit affirmed the district court’s decision to dismiss the complaint without leave to amend.
Implications For Companies
Circuit splits in the federal courts are increasingly rare. It is nearly unprecedented, however, to have a situation where one litigant has created a federal circuit split with himself. Salazar could file one lawsuit in New York and his claims would go forward. But, if the exact same lawsuit was filed in Tennessee, then dismissal would be the proper remedy.
This patchwork system may be difficult for corporate counsel, tasked with ensuring their companies’ adtech compliance, to follow. But, the Sixth Circuit’s decision in Paramount Global is better than the alternative and could pave the way for other circuits to similarly limit the scope of the VPPA in their relevant jurisdictions.
In the meantime, however, corporate counsel for companies based in Kentucky, Michigan, Ohio, and Tennessee can rest a little easier knowing that – they can offer newsletters without worrying that adtech, installed solely on their websites – will somehow subject them to draconian VPPA liability.
By Gerald L. Maatman, Jr., Shannon Noelle, and Anna Sheridan
Duane Morris Takeaways: In Meinert et al. v. Port Authority of Allegheny County, Case No. 2:22-CV-01736 (W.D. Pa. 2025), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania denied class certification for a class of former transit company employees that were allegedly denied medical and religious exemptions to an employer-mandated COVID-19 vaccination policy. In so doing, the Court highlighted opportunities for defendants to defeat class certification by offering proof that the proposed class is amenable to ordinary joinder and that individualized inquiries predominate over common ones in terms of the qualified disabilities, sincerely held religious beliefs, and undue hardship. The ruling is a required read for corporate counsel facing workplace-related class actions.
Background
Former bus drivers and maintenance workers of Pittsburgh Regional Transit filed a class action complaint against the transit company in December 2022 alleging that a company policy issued in early 2022 requiring COVID-19 vaccinations for employees resulted in class members being denied a medical or religious exemption in violation of federal and state law prohibiting discrimination based on a disability or sincerely held religious belief. In total, the transit company received 350 accommodation requests related to its COVID-19 vaccination policy — 54 of which were for medical exemptions and 296 of which were for religious exemptions. The Company formed an Accommodation Review Committee that ultimately granted 13 medical exemption and 30 religious exemption requests to its vaccination policy.
The plaintiffs argued that the exemption review process was a “sham.” As it regards the medical exemption review process, the plaintiffs argued all proposed class members (the “medical exemption class”) were denied a medical exemption because their pre-existing conditions or disabilities did not show a contraindication to the CDC guidelines and the Company did not factor whether the conditions were a recognized disability under the ADA. As it regards its religious exemption review process, the plaintiffs maintained that the Company did not engage in any individualized analysis to determine undue hardship (the “religious exemption class”).
The Court’s Decision
In its Rule 23 analysis, the Court ruled that the medical exemption class failed to meet the numerosity and commonality prerequisites and that the religious exemption class failed to satisfy the commonality and predominance requirements for class certification. The Court found that as the plaintiffs presented no evidence to contradict the Company’s proof that only 12 individuals fell into the proposed medical exemption class, the Court opined that the plaintiffs failed to establish numerosity and demonstrate that joinder of all members was impracticable, particularly given that all class members were employees of the Company in Pittsburgh.
The Court also rejected plaintiffs’ generic arguments that class certification would promote consistent results and judicial economy. The Court further addressed the lack of commonality of the medical exemption class in dicta (as the lack of numerosity was sufficient to dismiss the proposed class) but nevertheless found that determining whether each member of the class had a cognizable disability would be an individualized inquiry that could not be considered on a class wide basis.
With respect to the religious exemption class, the Court found a lack of commonality given that the sincerity of a class member’s religious beliefs and the undue hardship to the Company are both individualized inquiries not suitable for class treatment. The Court rejected plaintiffs’ contention that the Company did not engage in any individual analysis to determine undue hardship, crediting an affidavit submitted by the Company detailing the Accommodation Review Committee’s process and attaching denial letters, which it reasoned illustrated that the Company considered undue hardship on an individual-by-individual basis. For the same reasons, the Court also reasoned that predominance was lacking as to the religious exemption class given that the sincerity of class members’ religious beliefs and undue hardship to the Company would both turn on individualized proof rather than evidence common to all class members.
Implications of the Decision
The Court’s decision underscores the opportunity for defendants to defeat certification by submitting evidence that proposed members of the class are limited and could be easily joined through ordinary joinder procedures and that the proposed class-wide proceeding is not apt to generate common answers as to whether class members are entitled to relief, as opposed to common questions.
Employers implementing similar review processes for exemption requests to company policies are well-advised to document and evidence an individualized process in evaluating and responding to such requests to defend against class action exposure.
Duane Morris Takeaways: On March 24, 2025, in Popa v. Harriet Carter Gifts, Inc., 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), Judge William S. Stickman IV of the U.S. District Court for the Western District of Pennsylvaniagranted summary judgmentfor a retailer on a claim that the retailer’s use of website advertising technology violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”). The ruling is significant as it shows that in the hundreds of adtech class actions across the nation seeking millions or billions of dollars in statutory damages under various federal and state wiretap acts, implied consent may be found as a matter of law, thus disposing of the wiretap claim, where the defendant has posted a clearly labeled privacy statement at the bottom of the relevant webpage that discloses the use of adtech.
Background
This case is one of a legion of class actions that plaintiffs have filed nationwide alleging that Meta Pixel, Google Analytics, and other similar software embedded in defendants’ websites secretly captured plaintiffs’ web browsing data and sent it to Meta, Google, and other online advertising agencies.
This software, often called website advertising technologies or “adtech,” is a common feature on millions of corporate, governmental, and other websites in operation today. In adtech class actions, the key issue is often a claim brought under a federal or state wiretap act, a consumer fraud act, or the Video Privacy Protection Act, because plaintiffs often seek millions (and sometimes even billions) of dollars, even from midsize companies, on the theory that hundreds of thousands of website visitors, times $10,000 per claimant in statutory damages under the Federal Wiretap Act, 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, and universities. Several of these cases have resulted in multimillion-dollar settlements, several have been dismissed, and the vast majority remain undecided.
In Popa, the plaintiff brought suit against a retailer. According to the plaintiff, the retailer installed adtech called NaviStone OneTag on its public-facing website, thereby transmitting to Navistone, allegedly without the plaintiff’s consent, data about her visit to the retailer’s website where she added a set of pet stairs to her shopping cart. See id., 52 F.4th 121, 124-25 (3d Cir. 2022) (referenced in id., 2025 WL 896938). Based on these allegations, the plaintiff claimed that the retailer aided Navistone to intercept her communications in violation of the WESCA. Id., 2025 WL 896938, at *1.
The retailer moved for summary judgment, arguing that the plaintiff consented because of the nature of the internet or, alternatively, due to the retailer’s “Privacy Statement” linked at the bottom of the retailer’s webpage in a color contrasting with the website’s background, as is common on many websites, and which disclosed the retailer’s use of adtech. Id. at *2.
The Court’s Decision
The Court agreed with the retailer and held that the plaintiff impliedly consented to the retailer’s privacy policy, thereby defeating the plaintiffs’ WESCA claim.
Central to the Court’s holding was the WESCA’s statutory exception rendering it inapplicable “where all parties to the communication have given prior consent to such interception.” Id. at *5 (quoting 18 Pa. C.S. § 5704(4)). As the Court explained, “actual knowledge is not required under the mutual consent provisions of WESCA” and “‘prior consent’ can be demonstrated when the person being recorded knew or should have known, that the conversation was being recorded. This standard is one of a reasonable person, and not proof of the subjective knowledge of the person being recorded.” Id. at **5-6. In short, the Court reasoned that “the WESCA mutual consent exception focuses on a reasonable person standard.” Id. at *6.
To determine the reasonable person standard under the WESCA, the Court rejected the retailer’s first argument that any reasonable person using the internet impliedly consents to the use of adtech because of the nature of the internet. As the Court found, “the nature of the internet does not confer blanket implied consent to interception under WESCA.” Id. at *7. However, as the Court further found that “a reasonably prudent person has a lower expectation of privacy on the internet than on, for example, a telephone, which lacks the entire system of trackers, cookies, and algorithms commonly, if not ubiquitously, implicated in the use of a website.” Id. at *7.
Having found that WESCA’s reasonable person standard involves a lower expectation of privacy on the internet than on the telephone, the Court applied this standard to the relevant facts of the case. In doing so, the Court found that although the plaintiff did not actually read the Privacy Statement and therefore did not actually consent, if she were a reasonable person using the internet as the Court deemed her to be, then she had constructive knowledge as a matter of law due to a “browsewrap” agreement and therefore impliedly consented. As the Court explained, “Contracts formed on the Internet [include] ‘browsewrap’ agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly a party instead gives his assent simply by using the website.” Id. at *9.
In conclusion, the Court found a browsewrap agreement as a matter of law and ordered entry of a judgment in the retailer’s favor based on the following facts: (1) the privacy statement “was specifically labeled ‘Privacy Statement.’ [The plaintiff], or any other user could have easily seen the link and understood exactly what it contained”; and (2) the retailer’s placement of a link to the privacy statement on the bottom of the relevant webpage was “in line with common usage”; and (3) “The hyperlink to the Privacy Statement was reasonably conspicuous. It was displayed in a white contrasting font against a blue background on the bottom of every page of the website.” Id. at *11.
In sum, the Court found that “these factors compel a finding that a reasonable person in [the plaintiff]’s position had constructive notice of the terms of the Privacy Statement as a matter of law.” Id.
Implications For Companies
Popa provides powerful precedent for any company opposing adtech class action claims brought not only under the WESCA but also under any state or federal wiretap act, provided the company has a privacy policy sufficiently disclosing the use of adtech via a clearly labeled link on the bottom of the applicable webpage. Consider, for example, the numerous adtech class actions featuring a claim under the Federal Wiretap Act and seeking millions or billions of dollars in statutory damages. Although some courts have dismissed these claims on other grounds such as the lack of an interception or lack of criminal or tortious purpose (as discussed in our previous blog entry about a recent win for adtech defendants, here), other courts have refused to dismiss adtech claims brought under the Federal Wiretap Act, allowing them to proceed to costly merits, class certification, and expert discovery.
Popa provides an alternative path to victory in these cases, where applicable, which is to show that the plaintiff implied consented to the adtech via browsewrap.
