Gerald L. Maatman, Jr. – Class Action Defense

October 27, 2026October 27, 2026 by Gerald L. Maatman, Jr.

Click To Arbitrate: Washington Federal Court Compels Wage-And-Hour Class Action To Individual Arbitration

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

Duane Morris Takeaways: On October 21, 2026, in Arturo Palacios, Jr. v. RDO Equipment Co., No. 1:26-CV-03120 (E.D. Wash. Oct. 21, 2026), Judge Rebecca L. Pennell of the U.S. District Court for the Eastern District of Washington granted an employer’s motion to compel individual arbitration in a putative wage-and-hour class action. The Court held that the employee explicitly agreed to the arbitration provision contained in the employer’s handbook via an electronic dialog box acknowledgment, notwithstanding the employee’s declaration that he did not remember that he clicked the dialog box. The Court also rejected the employee’s arguments that the agreement was invalid because he was unsophisticated and that the agreement was unilateral.

The decision offers employers a useful roadmap for structuring and implementing electronic arbitration agreements contained in employee handbooks.

Case Background

Plaintiff Arturo Palacios, Jr. (“Plaintiff”) worked for RDO Equipment Co. (“RDO”) as a parts specialist from approximately February 2022 through September 2025. Arturo Palacios, Jr. v. RDO Equipment Co., No. 1:26-CV-03120 (E.D. Wash. Oct. 21, 2026), at *2. In early 2025, RDO electronically distributed an employee handbook containing a “Mediation and Arbitration” provision that required employment-related claims to be submitted to non-binding mediation and, if necessary, final and binding arbitration. Id. The provision also covered disputes concerning arbitrability and incorporated the American Arbitration Association’s Employment Dispute Resolution Rules. Id. at *3.

According to RDO’s electronic records, on February 4, 2025, Plaintiff electronically checked a dialog box to acknowledge that he reviewed and agreed to be bound by the terms of the arbitration and mediation procedures. Id. In 2026, Plaintiff filed a putative class action against RDO alleging wage and hour violations of Washington and federal law. Id. at *5. In response, RDO filed a motion to compel arbitration and stay proceedings, or in the alternative a motion to dismiss. Id. Plaintiff filed an opposition to RDO’s motion, along with a supporting declaration asserting that he did not recall checking the acknowledgement dialog box. Id. at *6. Plaintiff’s opposition broadly argued that no valid arbitration agreement existed and, alternatively, that if the agreement did exist it was unenforceable. Id.

The Court’s Decision

The Court granted RDO’s motion. Id. at *10. It explained that, under Washington law, an arbitration agreement contained in an employee handbook is enforceable only if the employee receives explicit notice of the provision. Id. (citing Burnett v. Pagliacci Pizza, Inc., 196 Wn.2d 38, 50 (2020)). The Ninth Circuit similarly requires that the choice to arbitrate be explicitly presented to and accepted by the employee. Id. (citing Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 762 (9th Cir. 1997)).

Applying these principles, the Court concluded that Plaintiff explicitly agreed to arbitration. Id. Unlike cases where an arbitration provision was inconspicuously buried in lengthy text or fine print, RDO’s electronic platform called out the arbitration clause in a prominent dialog box and required Plaintiff to affirm his acceptance as part of his agreement to the handbook. Id. at *7. The Court further reasoned that Plaintiff’s inability to remember signing the agreement did not establish that he had not done so, particularly because he neither disputed the accuracy of RDO’s electronic records nor denied clicking on the dialog box. Id. (citing Patrick v. Running Warehouse, LLC, 93 F.4th 468, 477 (9th Cir. 2024)).

The Court also rejected Plaintiff’s argument that the arbitration agreement was illusory because RDO retained the unilateral ability to modify its Handbook. Id. at *8. While the Handbook permitted RDO to revise various policies, it expressly distinguished the mediation and arbitration provision by stating that it created a separate binding contractual obligation between RDO and its employees. Id. The Court therefore held that the arbitration agreement was valid and not illusory. Id.

Finally, the Court held that the parties clearly and unmistakably delegated questions of arbitrability to the arbitrator. Id. The mediation and arbitration provision of the handbook expressly covered “any dispute concerning the ability to arbitrate” and incorporated the AAA Employment Dispute Resolution Rules. Id. at *9. The Court explained that incorporation of the AAA rules constitutes clear and unmistakable evidence of an agreement to arbitrate arbitrability under Ninth Circuit precedent. Id. (citing Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015)). Although Plaintiff argued that he was too unsophisticated to understand these provisions, the Court found no evidence regarding his sophistication or lack thereof and declined to presume that he was unsophisticated merely from his job description or pay rate. Id. The Court therefore granted RDO’s motion, delegated issues regarding the scope of arbitration to the arbitrator, denied the motion to dismiss as moot, and stayed the action pending completion of arbitration. Id.

Implications For Employers

The Palacios ruling provides several practical lessons for employers seeking to enforce arbitration agreements distributed through electronic employee handbooks. Most significantly, the decision demonstrates the value of making an arbitration provision conspicuous and requiring employees to take an affirmative step to acknowledge it. Reliable electronic records documenting an employee’s acceptance may also become important evidence of assent when the employee later claims not to remember agreeing to arbitration.

The decision also highlights the importance of distinguishing binding arbitration provisions from other, non-contractual handbook policies. RDO expressly identified its mediation and arbitration provision as creating contractual obligations, a distinction that proved important in defeating Plaintiff’s argument that the agreement was illusory. Employers likewise should pay close attention to delegation language. Here, the agreement both expressly covered disputes concerning arbitrability and incorporated the AAA rules, which supported the Court’s determination that threshold questions regarding arbitrability belonged to the arbitrator.

October 27, 2026October 27, 2026 by Gerald L. Maatman, Jr.

EEOC Lawsuit Challenging Women-Only Corporate Retreat Survives Dismissal

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

Duane Morris Takeaways: In EEOC v. Coca-Cola Beverages Northeast, Inc., No. 1:26-CV-115, 2026 WL 3093454 (D.N.H. Oct. 16, 2026), the Court denied the Defendant’s motion to dismiss an EEOC lawsuit alleging that a regional Coca-Cola bottler violated Title VII by excluding male employees from a company-sponsored, women-only networking event. Applying the U.S. Supreme Court’s “some harm” standard from Muldrow v. City of St. Louis, the Court held that missed networking opportunities, the potential loss of paid time off, and the denial of perks such as a company-paid hotel stay, food, and beverages were enough to plausibly allege an adverse employment action. The Court also rejected the employer’s argument that the event was a lawful effort to expand its pool of candidates for promotion, at least at the pleading stage. The case comes as the Commission has made enforcing Title VII against diversity programs it deems discriminatory, including toward majority groups, a stated priority.

Case Background

The EEOC brought the lawsuit on behalf of a male production employee at Coca-Cola Beverages Northeast, Inc.’s (“Coca-Cola”) facility in Londonderry, New Hampshire. Id. at *1. Coca-Cola sponsored a two-day, women-only networking event, called the “Women’s Forum,” at the Mohegan Sun and Casino in Connecticut. Id. Coca-Cola characterized the event as a means of growing the number of qualified candidates for advancement. Id. The event included a social reception, team-building exercises, recreational activities, and speeches from executives about their career paths. Id.

Only women received invitations. According to the EEOC, the women who attended were excused from their normal work duties and paid their usual salary or wages without using paid time off, and Coca-Cola provided their hotel rooms, food, and beverages. Id. The EEOC alleged that male employees were not provided with any of the benefits associated with attending the event and would have attended if they had been invited. Id. In the EEOC’s view, shutting men out of the event meant they were treated less favorably than women in their compensation and the terms, conditions, and privileges of their employment, in violation of Title VII. Id.

Coca-Cola moved to dismiss under Rule 12(b)(6), advancing three arguments: that the men suffered no legally cognizable injury from missing a single event; that the event was a permissible initiative to broaden the field of candidates ready for promotion; and that nothing in the complaint justified a punitive damages award. Id. at *1-2.

The Court’s Ruling

The Court denied the motion to dismiss.

In 2024, the Supreme Court shifted the standard for Title VII discrimination claims and held that a plaintiff need only show “some harm respecting an identifiable term or condition of employment,” and that the harm need not be “significant.” Muldrow v. City of St. Louis, 601 U.S. 346, 354-55 (2024). The First Circuit has since read Muldrow to reach any employment event, however minor, that leaves the worker “worse off” in the terms or conditions of their employment. Coca-Cola Beverages Northeast, Inc., 2026 WL 3093454, at *3 (citing Walsh v. HNTB Corp., 169 F.4th 330, 339 (1st Cir. 2026)).

The EEOC pointed to three categories of injury – (i) the male employees lost out on the event’s executive talks and networking; (ii) they did not receive the paid days away from work that the female employees enjoyed; and (iii) they went without the free lodging and meals that came with the trip. Id. at *3. Reading the complaint in the EEOC’s favor, the Court concluded that these allegations, taken together, were enough at the pleading stage to suggest that male employees may have been left worse off, even though the Court described the paid-time-off injury as only a potential one. Id. at *4. It also found it significant that the event was an official company function, which made it easier to link the unequal treatment to the men’s employment, particularly given the expansive way the Supreme Court has construed Title VII’s language. Id.

Coca-Cola also argued that event was a lawful effort to encourage female employees to pursue advancement, and that attending it had no bearing on who was actually promoted. Id. The Court rejected this argument, explaining that the EEOC did not attack Coca-Cola’s promotion decisions. Id. at *5. Instead, the agency’s theory is that the particular method Coca-Cola chose, a women-only event with paid time off and perks, took away opportunities and benefits from current male employees. Id.

As to punitive damages, the Court noted that the complaint did not appear to allege facts supporting an award of punitive damages. Id. However, the Court found dismissal of the EEOC’s request for punitive damages to be improper at the motion to dismiss stage because punitive damages are a form of relief rather than a claim and are not appropriately challenged by a motion to dismiss pursuant to Rule 12(b)(6). Id.

Implications For Employers

Employer-sponsored DEI programs are now squarely within the EEOC’s sights, and EEOC Chair Andrea Lucas has identified enforcing Title VII against diversity programs deemed discriminatory as a Commission priority.

The decision also shows how Muldrow’s lower “some harm” threshold can make it easier for these challenges to survive the pleading stage. Under that standard, networking access, paid time away from work, and event perks may be enough to plead an actionable injury when they are provided on the basis of sex. A legitimate goal, such as expanding the pool of candidates for promotion, may not by itself be a defense if the means chosen ultimately deny current employees benefits because of a protected characteristic. Employers still have arguments to press: the Court made clear that a plaintiff must show some disadvantageous consequence, and Coca-Cola may renew its arguments at summary judgment.

Employers should audit the eligibility criteria for their networking events, mentoring programs, conferences, and retreats. They should make sure that these events are available without regard to sex or other protected characteristics. Otherwise, an EEOC action may be on the horizon.

October 26, 2026October 26, 2026 by Gerald L. Maatman, Jr.

Fifth Circuit Reverses Dismissal Of Adtech Class Action On Narrow Grounds, Finding Sufficient Factual Allegations Of Disclosure Of PHI

By Gerald L. Maatman, Jr., Justin Donoho, Hayley Ryan, and Tyler Zmick

Duane Morris Takeaways: On October 23, 2026, in Rand, et al. v. Eyemart Express, LLC, 2026 WL 3180055 (5th Cir. Oct. 23, 2026), the U.S. Court of Appeals for the Fifth Circuit reversed an order by the U.S. District Court for the Northern District of Texas in which the district court had dismissed a class action brought by website users alleging that a prescription eyewear seller’s use of website advertising technology (“adtech”) violated the Electronic Communications Privacy Act (“ECPA”) and other laws.

This ruling is significant in that it shows that in the hundreds of adtech class actions across the nation seeking millions (or billions) in dollars in statutory damages under the ECPA and other laws, courts ruling on Rule 12(b)(6) motions and drawing all reasonable inferences in the light most favorable to plaintiffs may find plausible allegations that a website operator in fact transmitted private information to an adtech company, such that website owners seeking to challenge adtech class actions under Rule 12(b)(6) may find more success in foregoing such factual challenges to well-pled allegations and instead pressing more legal arguments such as that alleged adtech transmissions do not plausibly allege an “interception” or a “criminal or tortious purpose” under the ECPA.

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 and/or data analytics companies. In these adtech class actions, the key issue is often a claim brought under the ECPA on the theory that hundreds of thousands of website visitors times $10,000 per claimant in statutory damages 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 education, retailers, and consumer products. Several of these cases have resulted in multimillion-dollar settlements, several have been dismissed, and the vast majority remain undecided.

To state a claim for violation of the ECPA, also known as the federal wiretap act, a plaintiff must show an intentional interception of the contents of an electronic communication. The ECPA is a one-party consent statute, meaning that there is no liability under the statute for any party to the communication “unless such communication is intercepted for the purposes of committing a criminal or tortious act in violation of the Constitution or laws of the United States or any State.” 18 U.S.C. § 2511(2)(d)); 18 U.S.C. § 2511(2)(d).

In Rand, plaintiffs, Meta users who had already shared their names, photos, and other personal information through their Facebook accounts, brought suit against a seller of prescription eyewear. According to the plaintiffs, the eyewear seller installed the Meta Pixel on its website, thereby transmitting to Meta, allegedly without the plaintiffs’ consent, the following data about their visits to the website: (1) search terms and web browsing activities, as to those plaintiffs who used the site to search and browse for prescription glasses (the “Search Plaintiffs”); (2) prescription information, as to plaintiffs who made purchases on the site (the “Prescription Plaintiffs”); and (3) as to both sets of plaintiffs, an anonymized identifier sufficient for Meta to link these search terms, web-browsing activities, and prescription information to the plaintiffs’ Facebook profiles and send them targeted advertisements. Id. at *2.

The plaintiffs also alleged that these allegedly transmitted data types met the definition of individually identifiable health information (“IIHI”) protected under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

Further, the plaintiffs alleged that these alleged data transmissions of IIHI without consent violated the ECPA, the Missouri Wiretap Act, and Illinois Eavesdropping act, and constituted an intrusion upon seclusion and breach of contract.

The district court dismissed the complaint under Rule 12(b)(6), finding that the Search Plaintiffs failed to state a claim for relief because they did not allege that they shared any IIHI with the eyewear seller. As to the Prescription Plaintiffs, the district court acknowledged that they allegedly shared IIHI with the eyewear seller by entering their prescription information but found that they had failed to plausibly allege that any IIHI was disclosed to Meta. Without sufficient allegations that any plaintiff’s IIHI was shared with Meta, the district court concluded that each of the plaintiffs’ claims necessarily failed. Id. at *1-2.

On appeal, the plaintiffs argued that the district court’s dismissal order should be reversed and their class action complaint reinstated because they adequately alleged both that they shared their IIHI with the defendant and that the Pixel on defendant’s website conveyed that IIHI to Meta without their knowledge or consent.

The Fifth Circuit’s Decision

The Fifth Circuit agreed with the plaintiffs and reversed, finding, first, that the district court erred in finding lack of any plausible allegations that the Search Plaintiffs did not share any IIHI with the defendant. As the Fifth Circuit explained, the defendant conceded that the information received through the Pixel was individually identifiable because through Facebook, the information was linked to specific users. Id. at *5. Moreover, the Fifth Circuit found that the Search Plaintiffs adequately alleged that they shared information relating to their health conditions or the provision of healthcare by using website. Specifically, the Fifth Circuit found that while the Search Plaintiffs did not allege the transmission of diagnoses or symptoms, “IIHI is not so narrow” and also includes information collected from an individual that “relates to” an individual’s health or condition, to the provision of healthcare to an individual, or the individual’s payment for healthcare. Thus, taking the plaintiffs’ allegations as true, the Fifth Circuit held that the district court erred in finding that the Search Plaintiffs had not shared any IIHI with the defendant. Id. at *5-7.

Second, the Fifth Circuit found that the district court also erred in finding that the plaintiffs failed to plead that their IIHI was shared with Meta. The district court had considered a figure from the complaint representing an example of transmitted data (created by the plaintiffs’ attorney, not representing plaintiffs’ activity), reasoning that it did not sufficiently specify transmission of the either plaintiffs’ data or any prescription information. Accordingly, the district court found that the complaint did not sufficiently allege that any IIHI was shared with Meta. Id. at *7. The Fifth Circuit disagreed. It opined that IIHI is not so narrow that it applies only to specific prescription information and includes, also, interactions on the website relating to plaintiffs’ health. Moreover, the Fifth Circuit found that the figure in the complaint was provided only by way of example and did not contradict other factual allegations that the Fifth Circuit found alleged the transmission of data to Meta relating to the “Prescription Plaintiffs’ actual purchases.” Id.

For these reasons, the Fifth Circuit reversed the dismissal order and remanded for further proceedings.

Implications For Companies

Rand is a cautionary tale for defendant website operators seeking to dismiss adtech class actions under Rule 12(b)(6) on the basis that plaintiffs failed to plausibly allege that the defendant transmitted the plaintiffs’ private data to an adtech company.

While whether any given plaintiff’s private data was in fact transmitted to an adtech company by a website operator remains an individualized issue dependent on browser type, social media account login status, and cookie blocking features, which courts have found sufficiently individualized to prevent named plaintiffs from establishing the defendant’s liability to alleged class members under Rule 23 (as we blogged about here and here), courts must, however, take any allegations of adtech transmissions as true for purposes of Rule 12(b)(6).

For these reasons, adtech class action defendants bringing Rule 12(b)(6) motions often argue for and sometimes achieve dismissal of ECPA claims, instead, on the basis of no plausibly alleged interception, when an internet-based communication is allegedly forwarded to an adtech company as opposed to being intercepted mid-flight, and no plausibly alleged criminal or tortious purpose where the plaintiffs fail to allege that the defendant had the purpose to violate any statute but allege a purpose rather to engage in advertising or data analytics. (See, e.g., our prior blog entry discussing one of these successful dismissals, here.) Notably, the Fifth Circuit’s decision in Rand did not address these arguments. Website owners facing adtech ECPA class actions would do well to press such arguments where appropriate.

Corporate counsel seeking to deter ECPA litigation should also keep in mind the following best practices (discussed in more detail in our prior blog post, here): (1) add or update arbitration clauses to deter class actions and mitigate the risks of mass arbitration; (2) update website terms of use, data privacy policies, and vendor agreements; and (3) audit and adjust uses of website advertising technologies.

October 26, 2026October 26, 2026 by Gerald L. Maatman, Jr.

Illinois Federal Court Denies Class Certification In Employer Wiretapping And Eavesdropping Case Due To Lack Of Common Evidence Of Call Recording

By Gerald L. Maatman, Jr., Justin R. Donoho, and Hayley Ryan

Duane Morris Takeaways: On October 15, 2026, in Alholm, et al. v. The Vrdolyak Law Group, LLC, No. 22-CV-1820, 2026 WL 3082834 (N.D. Ill. Oct. 15, 2026), Judge Georgia N. Alexakis of the U.S. District Court for the Northern District of Illinois denied class certification in a case brought by former employees against a law firm alleging that the company secretly recorded their telephone conversations in violation of the federal wiretap act, Tennessee’s wiretap act, and Illinois’ eavesdropping act. The ruling is significant as it shows that while plaintiffs’ circumstantial evidence of one plaintiff’s call recordings and of the employer’s history of surveillance may suffice to withstand summary judgment on plaintiffs’ individual claims for illegal wiretapping and eavesdropping, Rule 23 requires more evidence than that in order for plaintiffs to show that the central issue of whether alleged class members’ calls were recorded is a common question that can be resolved in one stroke with common evidence. Further, the ruling shows that absent such common evidence on the central issue of whether a company recorded any or all of the calls made over its system, proposed classes of people who had conversations over the system cannot satisfy Rule 23(b)(3)’s predominance requirement.

Background

In Alholm, former employees of a law firm brought suit against their former employer alleging that the firm secretly recorded their telephone conversations while each was employed there. They brought class claims for illegal wiretapping under 18 U.S.C. § 2511 and section 39-13-601 of the Tennessee Code, and for illegal eavesdropping under section 5/14-1 of chapter 720 of the Illinois Compiled Statutes.

The company answered the complaint, the parties engaged in discovery, and the court denied summary judgment to the company and ordered the setting of a trial date. In so holding, the court found a genuine factual dispute as to whether the employer actually intercepted and eavesdropped upon the plaintiffs’ calls and did so intentionally, based on conflicting circumstantial evidence submitted by both parties as to whether the company recorded the plaintiffs’ calls. Alholm, et al. v. Vrdolyak L. Grp., LLC, 2026 WL 1194954 (N.D. Ill. May 1, 2026).

On the one hand, Plaintiffs submitted evidence consisting of call recordings of one of the former employees purportedly discovered on the system by one of the former employees, evidence that the phone system has a call recording feature that only would have been activated at the request of the employer, and evidence from which the court found that “a reasonable jury could conclude that [the company] had a history of intentionally monitoring its employees and that its call recording was the result of defendant’s conscious objective rather than the product of a mistake or an accident.” Id. at *13.

But the court found other evidence pointing the other way, including testimony from the phone system provider that the system could record a call on an individual phone line if the user of the line dialed a specific key code during the call. In addition, the phone system provider testified that the call recording could have been turned on only for the one named plaintiff who had found the recordings of the allegedly intercepted calls. Further, the phone system provider testified that the employer never asked it to activate the system’s call-recording function, that the function had never been activated, and that the system lacked the storage capacity and processing power to record employer’s high volume of calls. Members of the employer’s senior leadership also testified that they never authorized the recording of calls. Id.

Before trial, the plaintiffs moved for class certification, seeking to certify classes consisting of all employees, clients, and potential clients of the employer who had a telephone conversation between November 1, 2019, and January 28, 2020, with a person using the employer’s telephone system.

The Court’s Decision

The Court found that the central question of the case of whether calls made over the company’s phone system were recorded was an individualized issue that predominated over any common issues and, accordingly, denied class certification for lack of predominance, without deciding any other Rule 23 requirement.

As the Court explained, for all three wiretapping and eavesdropping claims, the question “that towers over all others” is whether calls made over the company’s phone system were recorded. Alholm, 2026 WL 3082834, at *3.

So, first, the Court considered whether that question can be answered, yes or no, using common evidence.

The Court found that the plaintiffs lacked common evidence of call recordings. First, it found that evidence of the company’s pervasive surveillance through the use of video cameras and encouragement of employees to monitor subordinates might be admissible for showing intent but not for establishing actual recording of calls made over the phone system.

Second, the court ruled that the recordings of only one plaintiff’s calls did not constitute common evidence of class-wide recordings because plaintiffs lacked any “glue” holding these calls “together with the calls of the other class members—some fact showing that if [one plaintiff]’s calls were recorded then those of other class members were as well.” Id. at *5. For example, the court noted conflicting testimony from the phone system’s administrators as to whether the system could only record calls on a system-wide basis. Moreover, additional testimony showed that recordings could be made on the phone system not just by the company and its system administrators but also individually by end users. Id. at *6-9.

For these reasons, the Court determined that the plaintiffs lacked common evidence of call recording by the company.

Further, the Court opined that because this question of whether the company recorded any or all of the calls made over its system is the central issue in the case and, owing to a lack of common evidence, is not a common once, “the proposed class cannot satisfy Rule 23(b)(3)’s predominance requirement, and the class cannot be certified.” Id. at *9.

Finally, the Court held that because the plaintiffs’ failure to satisfy predominance was enough to preclude class certification, the Court declined to assess whether the proposed class satisfied the other requirements of Rule 23(a) and Rule 23(b)(3). Id. at * 10.

Implications For Companies

Alholm provides powerful precedent for any company opposing certification of wiretapping and eavesdropping class actions involving alleged call recordings where plaintiffs lack common evidence to show a class-wide practice of making call recordings.

This precedent is also key for limiting any large statutory penalties under wiretapping and eavesdropping statutes ($10,000 under the federal wiretap act, for example) to only such penalties sought individually by any named plaintiffs who have filed a complaint and amassed enough evidence to go to trial on whether the company recorded their own individual phone calls.

In sum, as Aholm demonstrates, a former employee’s circumstantial evidence that the employer recorded his or her calls, even if sufficient to go to trial on the former employee’s individual claims, alone, may not suffice for that former employee to represent and go to trial on behalf of other former employees, who may need to prove their own call recordings individually.

October 26, 2026October 26, 2026 by Gerald L. Maatman, Jr.

Ohio Supreme Court Holds Trial Courts May Address Every Class Certification Requirement Even After Finding One Unmet

By Gerald L. Maatman, Jr., Kathryn Brown, and Brett Bohan

Duane Morris Takeaways: On October 22, 2026, in Hilton v. City of Lorain, Slip Opinion No. 2026-Ohio-4114 (Ohio Oct. 22, 2026), the Supreme Court of Ohio unanimously reversed an intermediate appellate decision that had faulted a trial court for denying class certification in a “confusing and seemingly contradictory” opinion. Id. ¶ 7. The trial court had found two of the seven certification prerequisites under Ohio Civil Rule 23 lacking but went on to find the other five were satisfied. The Supreme Court of Ohio held that addressing every requirement, rather than stopping after finding one requirement is not met, is consistent with the “rigorous analysis” that class certification demands. Id. ¶ 1.

For defendants facing class claims under Ohio law, the decision clarifies that a well-reasoned denial of certification will not be undone on appeal because the trial court addressed every requirement for class certification.

Case Background

Appellees brought a putative class action against the City of Lorain and related entities in Ohio state court. Id. ¶ 2. They claimed that the city had charged unlawful rates and fees for water and wastewater services. Id. Appellees moved to certify a class of “[a]ll ratepayers who were charged water and sanitary sewer rates, fees and charges by the City of Lorain since May 7, 2012.” Id.

Under Ohio Civil Rule 23, a class may be certified only if seven prerequisites are met: (1) an identifiable class with an unambiguous definition; (2) named representatives who belong to the class; (3) numerosity; (4) common questions of law or fact; (5) typicality; (6) adequate representation; and (7) satisfaction of one of the Rule 23(B) categories. Id. ¶ 3. Appellees relied on Rule 23(B)(3), which requires common questions to predominate and a class action to be the superior method of resolving the disputes. Id. ¶ 5.

The Lorain County Court of Common Pleas denied certification on two grounds. Id. ¶ 4. First, the court concluded that the proposed class was neither identifiable nor clearly defined. Id. Specifically, it was unclear whether the class covered everyone who had been charged fees or only those who paid them, and appellees had offered no means of identifying class members “going back from over a decade earlier.” Id. (emphasis in original). Second, the court found predominance and superiority lacking, since the court would have to determine, member by member, whether each person paid an unlawful charge and in what amount. Id. ¶¶ 5-6. The trial court nonetheless addressed the remaining five requirements for class certification and found that they had all been satisfied. Id. ¶ 7.

The Ninth District Court of Appeals reversed. Id. The court reasoned that the trial court could not logically find the class undefined while simultaneously finding that appellees belonged to it, that it was numerous, and that common, typical claims existed among members. Id. The court held that these “seemingly contradictory findings” amounted to an abuse of discretion and remanded to the trial court. Id. The city appealed to the Supreme Court of Ohio. Id. ¶ 8.

The Ohio Supreme Court’s Opinion

The Supreme Court of Ohio unanimously reversed the appellate court’s ruling. Id. ¶ 19. The court reaffirmed that a trial court must conduct a “rigorous analysis” of a class certification motion, that a plaintiff’s failure on any single requirement defeats certification, and that a trial court’s certification ruling stands unless the court abused its discretion. Id. ¶¶ 10-11. The court also stressed that appellate courts should be especially cautious before overturning a trial court decision that denied class certification. Id. ¶ 11.

The city argued that the trial court’s decision was not contradictory and that the court had simply assumed, for the sake of argument when addressing the remaining requirements, that the class had been defined properly. Id. ¶ 12. The city warned that requiring the trial court to end its analysis once it found one element unsatisfied could lead to piecemeal litigation. Id. The trial court “would have to determine, one at a time, whether each of the other six requirements had been met; this process could result in six appeals and six remands.” Id. Appellees countered that an analysis that is confusing and internally inconsistent cannot be “rigorous” for purposes of satisfying Ohio law. Id. ¶ 13.

The Supreme Court of Ohio sided with the city. Id. ¶ 14. Although the trial court’s decision could have been clearer, it included sufficient language to show that the trial court had addressed the remaining five requirements of the class certification analysis as if the two unsatisfied requirements had been satisfied. Id. ¶ 15. The Supreme Court further explained that judicial economy favors resolving all seven requirements in a single ruling whenever possible. Id. ¶ 16. It cautioned, however, that there may be cases in which the failure of one requirement prevents a court from meaningfully evaluating the other six requirements. Id.

The Supreme Court of Ohio remanded the case to the Ninth District Court of Appeals to address the appellees’ remaining assignments of error in the trial court’s ruling.

Implications For Companies

The Hilton decision is required reading for businesses defending class actions under Ohio law. The Supreme Court of Ohio’s unanimous ruling establishes that a trial court does not jeopardize a denial of class certification by analyzing every Rule 23 prerequisite, even after it concludes that one requirement has not been satisfied. Because of the deference owed to trial courts that decline to certify a class, class action defendants should build a thorough record on each Rule 23 requirement so that the trial court may issue a complete, well-supported decision that gives appellate courts multiple independent grounds on which to affirm.

Additionally, although not the focus of the opinion, the Hilton decision illustrates how, in cases involving long look-back periods and individualized damages questions, class-definition and predominance challenges can defeat certification. Where determining class membership or liability would require account-by-account review, those issues can be decisive.

October 25, 2026October 25, 2026 by Gerald L. Maatman, Jr.

California Court Of Appeal Finds That An Employment Arbitration Agreement Entered Into “Freely And Voluntarily” Actually Was Forced, Illegal, And Invalid Under California Law

By Eden E. Anderson, Rebecca Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On October 22, 2026, the California Court of Appeal held in Molina, et al. v. Triumph Residential Services, Inc., Case No. B350252, that requiring an employee to sign an arbitration agreement as a condition of employment is illegal under California Labor Code section 432.6. Thus, when an arbitration agreement is not otherwise enforceable under the FAA, an arbitration agreement that is a condition of employment is unenforceable under California law. The Court of Appeal further found that, even though the arbitration agreement at issue stated on its face that it was voluntary, it actually was not.

The Molina decision is a must read for any employer seeking to compel arbitration under California law, as it teaches important lessons on the evidence an employer should submit with its motion.

Case Background

At the time of her hire with Triumph Residential Services (Triumph), Tiffany Molina signed an arbitration agreement which stated that she was “freely and voluntarily” agreeing to arbitration of claims arising out of her employment. Id. at 4. After her employment ended, Ms. Molina filed a wage and hour class action lawsuit against Triumph. Triumph moved to compel individual arbitration and to dismiss the class claims pursuant to a class action waiver in the arbitration agreement. The parties agreed that their arbitration agreement was not governed by the Federal Arbitration Act (FAA), and thus Triumph sought to enforce the arbitration agreement under California law. With its motion to compel, Triumph submitted a declaration asserting that Ms. Molina “was free to accept the Arbitration Agreement, attempt to negotiate out of it or look for other employment.” Id. at 4.

In opposing the motion, Ms. Molina argued that California Labor Code section 432.6 made her arbitration agreement unlawful. Labor Code section 432.6 makes it illegal (indeed, criminal) for an employer to impose an arbitration agreement on an employee as a “condition of employment.” It also prohibits an employer from requiring an employee to take any affirmative action to opt out of an arbitration agreement. Usually, when the FAA governs an arbitration agreement, Labor Code section 432.6 is preempted. However, as noted, here the parties agreed the FAA did not apply. Ms. Molina asserted, without any evidentiary support of her own, that her arbitration agreement had been forced upon her as a condition of employment.

The trial court denied Triumph’s motion, concluding that Labor Code section 432.6 invalidated the arbitration agreement. Even though the arbitration agreement on its face stated it was “freely and voluntarily” signed, the trial court deemed that insufficient to show the agreement was voluntary and not a condition of employment. It determined that the employer bears the burden of proof to establish a valid an enforceable agreement to arbitrate, and that Triumph failed to offer evidence that its employees were not required to sign the arbitration agreement.

The Decision

In a decision certified for publication, the Court of Appeal affirmed. It held that the only exception to Labor Code section 432.6’s application is when an arbitration agreement is otherwise enforceable under the FAA. Because Ms. Molina’s arbitration agreement was not enforceable under the FAA, then the agreement had to be voluntary to be enforceable under California law.

Without addressing which party bears the burden of proof, the Court of Appeal further held that the evidence established Ms. Molina’s arbitration agreement was not voluntary even though it said on its face that it was. And on this point, Triumph’s declaration proved fatal because it stated that Ms. Molina’s choices were to either “accept the Arbitration Agreement . . . or look for other employment.” Id. at 4. That meant the agreement was unlawfully a condition of employment. Id. at 15. Additionally, Triumph’s declaration stated that Ms. Molina could “negotiate out of” the agreement, which too violated Labor Code section 432.6 because it signified that Ms. Molina had to take affirmative action to avoid signing the arbitration agreement presented to her. Id. Because Ms. Molina’s arbitration agreement was not voluntary and not enforceable under the FAA, it was “illegal (indeed, criminal)” and unenforceable under California law. Id. at 8.

Implications For Employers

The Molina decision teaches an important lesson to any employer seeking to enforce an arbitration agreement that is not governed by the FAA. Even if an arbitration agreement states that it is voluntary, the employer should proffer additional evidence to confirm that employees are not required to sign, e.g., a declaration indicating that some employees do not sign. In this instance, the employer offered a declaration stating the exact opposite, and sandbagged its own motion as a result.

October 19, 2026October 19, 2026 by Gerald L. Maatman, Jr.

Second Circuit Revives Shelved Grocery Workers’ Waiting Time Suit

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Olga A. Romadin

Duane Morris Takeaways: On October 13, 2026, in Santos v. Lidl US, LLC, No. 25-2357 (2d Cir. Oct. 13, 2026), the Second Circuit vacated a district court’s dismissal of a grocery worker’s time-shaving claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). The Second Circuit held that waiting time is compensable under the FLSA when an employer requires an employee to report to work at a specific time and be ready to work when there is no work to do for reasons beyond the employee’s control. It also declined to consider fifteen minutes of unpaid time a week as de minimis when argued at the pleading stage. For employers with shift workers, the ruling signals a narrowing of the Portal-to-Portal Act defense and gives plaintiffs’ lawyers a new basis for bringing collective actions in the Second Circuit.

Background

On January 26, 2024, Plaintiff Sandra Santos brought a class and collective action alleging that her employer, Lidl US, LLC (“Lidl”), had engaged in the unlawful practice known as “time-shaving” in violation of the FLSA and NYLL. Plaintiff, a store clerk and stocker at the grocer’s West Babylon, New York location, alleged that Lidl required her and other opening-shift employees to report to work fifteen minutes before the listed start time, though they were not always able to clock in until their shift start time or later, and that as a result they were not paid overtime. Plaintiff sought to represent a collective under the FLSA and a class under the NYLL.

On September 10, 2025, the U.S. District Court for the Eastern District of New York dismissed both claims with prejudice after holding that the Portal-to-Portal Act barred the FLSA claim and that because the NYLL claim was coextensive with it, it was barred, too. Plaintiff appealed, and the Second Circuit vacated and remanded to the District Court.

The Appeals Court’s Decision

Writing for the majority, Judge Beth Robinson cited to U.S. Department of Labor regulation 29 C.F.R. § 790.7(h) interpreting the Portal-to-Portal Act, writing that the regulation distinguished between when an employee voluntarily arrives early and conducts a “preliminary” activity, and when an employee is required to report at a set hour, is ready to work, and has no work to do for reasons beyond their control, where the employee is doing something “integral” to their principal activities. Id. at 1. Under the § 790.7(h), the former is not compensable, but the latter is. Judge Robinson then cited to the U.S. Supreme Court decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), which determined courts were required to apply a separate analysis on compensable work time where workers had been required to report at a specific time to begin donning protective gear prior to starting their shift only to find that no protective gear was available, including evaluating whether the donning was “integral” to the job they were hired to perform. Id. at 12.

In its defense, Lidl argued that Alvarez and § 790.7(h) were abrogated by the U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), which held that time spent waiting to go through a security line was a noncompensable postliminary activity because it was not a “principal” activity for which the workers were employed. Id. at 14. The Second Circuit declined to read the decision so broadly, writing that Busk did not “address the distinct scenario of a worker engaged to wait.” Id. at 15. Citing to Armour & Co. v. Wantock, 323 U.S. 126 (1944), Judge Robison wrote that an employee may be hired specifically to wait, and Busk did not upend the principle that “[r]eadiness to serve may be hired, quite as much as service itself.” Id. at 16.

Lidl responded that this is limited to workers such as firefighters and limousine drivers, but the Court of Appeals was unconvinced, writing that it found “no such limit in the text of § 790.7(h).” Id.

Finally, the Second Circuit rejected Lidl’s alternative argument that the time workers spent waiting was de minimis, writing that it could not “conclude from our precedents that fifteen minutes of uncompensated work time a week is de minimis.” Id. at 17.

Judge Richard J. Sullivan’s Dissent

In his dissent, Judge Sullivan wrote that the majority’s holding was in conflict with the Portal-to-Portal Act and with the U.S. Supreme Court’s precedent, concluding that the wait time at issue was neither “integral” nor “indispensable” to plaintiff’s work as a grocery store clerk because Lidl could have eliminated it without affecting the principal activities of stocking or customer service. Id. at 23. Judge Sullivan further wrote that § 790.7(h) applies only when waiting is an unusual break from routine, not a routine part of preliminary activities. Id. at 26.

Takeaways for Employers

The Second Circuit’s holding shows the enduring reluctance of the Second Circuit to broaden its reading of the U.S. Supreme Court Busk ruling on non-compensable waiting time, even when it sets new limits the Portal to Portal Act in determining compensable and non-compensable waiting time. Employers scheduling workers to arrive prior to shift start are cautioned that this may trigger a finding that such workers are “engaged to wait,” and should tread cautiously in relying on the Portal-to-Portal Act to preclude litigation or utilizing a de minimis defense argument to limit damages.

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

Webinar Replay: Year-End Review of EEOC Litigation and Strategy

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Daniel D. Spencer

Duane Morris Takeaway: Thank you to all the loyal blog readers and followers who joined us for our Year-End EEOC Litigation and Strategy Review webinar! In this 30-minute program, Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley, and Daniel D. Spencer analyzed the latest impact of enforcement litigation at the U.S. Equal Employment Opportunity Commission, including its new National Enforcement Plan and strategic priorities established in fiscal year 2026 and the enforcement lawsuits filed over the past 12 months, and discussed how employers can navigate the EEOC’s latest enforcement initiatives and implement strategies designed to minimize the risk of drawing the agency’s scrutiny.

If you were unable to attend the webinar, it is now available on our podcast channel. Click to watch below and stay tuned for important EEOC trends and developments throughout the year.

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

October 12, 2026 by Gerald L. Maatman, Jr.

Washington Supreme Court Rejects Privacy Class Action And Holds That Hospital’s Use Of Meta Pixel Does Not Violate State Privacy Act

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo

Duane Morris Takeaways: On October 8, 2026, in Baker, et al. v. Seattle Children’s Hospital, No. 104590-5, 2026 WL 3023818 (Wash. Oct. 8, 2026), Justice Theodore J. Angelis of the Supreme Court of the State of Washington held that a hospital’s use of Meta Pixel’s advertising technology ( “Meta Pixel”) on its public website did not violate the Washington Privacy Act (“WPA”) because the plaintiffs’ website searches involved communications between a single individual and a website, and were not between “two or more individuals” as required by the WPA. The decision is a significant win for companies that use website advertising technologies, like Meta Pixel, but its import may be limited to claims brought under Washington state law.

Case Background

Seattle Children’s Hospital (“SCH”) operates a public website that provides general information about the hospital, including a directory of health care professionals, hours of operation for clinics, and descriptions of health conditions. The website also uses free software, called Meta Pixel, that allows websites to review visitors’ clicks, text searches, and page views. Meta Pixel also allegedly relays content of such searches to Meta Platforms, Inc., which links that information to the Facebook or Instagram account of the website visitor for targeted advertising.

In 2023, Carly Baker, Amber Shavies, and Janssen Ramos Savoie (collectively, “Plaintiffs”) filed a putative class action against SCH. Each of the Plaintiffs was a parent who alleged that they visited SCH’s public website to search for information regarding “their children’s medical conditions and for clinic operating hours, as well as visiting the patient portal, MyChart, to communicate with doctors and view their children’s electronic records and medical histories.” Id. at *2. SCH disputed that Meta Pixel was ever installed on the hospital’s MyChart patient portal and Plaintiffs “subsequently clarified that their claims targeted only the use of Pixel on SCH’s publicly available website.” Id. at *2, n.5.

SCH moved to dismiss the complaint and argued, inter alia, that Plaintiffs’ searches and queries on the website were not “private communications” as defined by the WPA. The trial court granted SCH’s motion to dismiss and dismissed the complaint with prejudice. Plaintiffs appealed and the Washington Court of Appeals affirmed the dismissal on the ground that navigation of a website is not a “communication” as defined by the WPA. See Baker v. Seattle Children’s Hosp., 35 Wash. App. 2d 1018 (2025). Plaintiffs then petitioned the Washington Supreme Court for review and the petition was granted.

The Supreme Court’s Decision

In a unanimous result, Justice Angelis, writing for the majority of the Washington Supreme Court, affirmed the trial court’s dismissal but on a different basis than the Court of Appeals.

Instead of determining whether the Plaintiffs’ website activity constituted a “private communication,” the Supreme Court focused on a different part of the WPA’s text. Justice Angelis explained that it is unlawful for “any individual, partnership, corporation, association, or the state of Washington” to intercept or record any “[p]rivate communication . . . between two or more individuals.” RCW 9.73.030(1)(a).

Justice Angelis reasoned that, because only communications “between two or more individuals” are unlawful, SCH would need to be an “individual” for Plaintiffs’ theory to work. Id. But SCH is not an individual. The WPA draws a distinction between “individuals” on the one hand and entities such as “partnership[s], corporation[s], association[s], or the state of Washington,” on the other. Id. Thus, because SCH is a corporation and “only one individual was involved in each communication, the [P]laintiffs do not have a claim under the WPA.” Baker, 2026 WL 3023818, at *3.

Justice Angelis, however, took care to point out that it was immaterial that the WPA is “one of the most restrictive electronic surveillance laws ever promulgated” and that certain federal and California laws may prohibit such conduct. Id. at *4 (quotations omitted). He explained that those federal and state cases are “not instructive given the significant differences between the state and federal statutory schemes” and declined to consider such precedent. Id. (quotations omitted).

Notably, Justice González and Justice Whitener wrote separately to concur in the result but express the view that “private communications transmitted between an individual and individuals working for a corporation are protected by” WPA. Id. (González, J., concurring). Instead, Justice González would have held that these communications were not between “two or more individuals” because the “parents’ private communications were directed at a server that returned stored content and not at another individual.” Id. at *5 (González, J., concurring). Thus, to Justice González, the material distinction was not a communication with a corporation but the nature of the underlying technology itself.

But nonetheless, the Washington Supreme Court unanimously affirmed the trial court’s dismissal with prejudice.

Implications For Companies

The Baker decision is a meaningful development for Washington companies that deploy advertising technologies, such as Meta Pixel, on their public-facing websites. Although the unique language of the WPA likely makes this decision distinguishable from claims brought under the Electronic Communications Privacy Act or California Invasion of Privacy Act, this holding should knock out nearly all claims under the WPA as a matter of law.

Justice González’s concurrence, however, serves as a cautionary note. Even though the majority opinion would seem to imply that you could never apply the WPA to communications with a corporation under any circumstances, there is at least a possibility that under different facts (e.g., such as communications directed to an individual staff member) the Washington Supreme Court would reach a different result. Nonetheless, Baker is undoubtedly a tremendous win for Washington companies and corporate counsel should continue to monitor this blog to stay apprised of developments in class actions involving Meta Pixel litigation and digital privacy law.