Gerald L. Maatman, Jr. – Page 3 – Class Action Defense

April 30, 2026April 30, 2026 by Gerald L. Maatman, Jr.

Georgia Federal Court Holds That To Establish Article III Standing To Sue In Data Breach Class Actions, The Named Plaintiffs’ Injury-In-Fact Requirement Demands Nuanced And Detailed Pleadings

By Gerald L. Maatman, Jr., Rebecca S. Bjork, and Ryan Garippo

Duane Morris Takeaways: On April 23, 2026, in Hall v. Bitcoin Depot, Inc., Case No. 25-CV-04317 (N.D. Ga. Apr. 23, 2026), Judge William Ray of the U.S. District Court for the Northern District of Georgia dismissed a putative class action alleging that users of Bitcoin Depot’s cryptocurrency ATMs were at significant risk of identity theft and attendant personal, social and financial harms due to a data breach. The District Court held that the Named Plaintiff did not properly plead a cognizable injury sufficient to confer Article III standing to sue, due to not pleading any specific misuse of his data. The decision clarifies the legal standards within the Eleventh Circuit regarding standing requirements in data breach class action cases, thus providing helpful and nuanced guidance for defendants facing similar lawsuits. This is especially true because the dismissal was granted without prejudice, affording the Named Plaintiff an opportunity to cure his defective pleading and potentially setting the stage for further litigation on this issue.

Case Background

Quincey Hall sued Bitcoin Depot, Inc. in federal court in the Northern District of Georgia on behalf of a putative class of consumers who used the company’s cryptocurrency ATMs. Id. at 2. After a data breach occurred affecting the ATMs, approximately 26,000 individuals’ personally identifiable information was exposed online. Id. After being notified by Bitcoin Depot that his information was amongst that involved in the breach, Hall filed his class action lawsuit as a “proposed representative of a class of individuals ‘impacted by [Bitcoin Depot’s] failure to safeguard, monitor, maintain and protect’ their personal information prior to the data breach.” Id.

Hall’s Complaint alleged that because of the data breach, he and the putative class members are “at [a] significant risk of identity theft and various other forms of personal, social and financial harm.” Id. at 3. He alleged that Bitcoin Depot is liable for common law tort and contract claims, as well as for violations of the Georgia Uniform Deceptive Trade Practices Act and he sought both monetary damages and injunctive relief. Id.

Bitcoin Depot filed a motion to dismiss under Rule 12(b)(6) based both on a failure to state a claim and for lack of standing to sue under Article III of the Constitution. Id.

The Court’s Decision

Judge Ray granted Bitcoin Depot’s motion to dismiss the complaint and he did so without prejudice, allowing the Named Plaintiff an opportunity to correct his defective pleading. Id. at 10. The court’s analysis of the legal requirements for standing in data breach cases is clarifying because it demonstrates that nuance matters when considering whether the injury-in fact requirement for Article III standing is properly pled.

First, the court explained that to constitute a case or controversy within the meaning of Article III, the plaintiff must have standing to sue (id. at 3), and in the context of a class action lawsuit “only one named plaintiff must have standing as to any particular claim in order for it to advance.” Id. at 5 (citation omitted).

Second, the court explained that to demonstrate standing, a named plaintiff must show that “[he] has suffered ‘an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical[.]’” Id. Furthermore, when seeking damages specifically, the court explained that “the mere risk of future harm, standing alone, cannot qualify as a concrete harm.” Id. (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 436 (2021). And for injunctive relief, too, the named plaintiff must establish that there is a “substantial risk that, in the near future, they will suffer an injury.” Id.

Third, the court applied these standards to the allegations in the Named Plaintiff’s complaint and held that those allegations were insufficient to establish Article III standing. Hall had only pled a risk of identity theft and the resulting potential adverse impacts on him and putative class members. He had not pled any facts that his specific information had been leaked to known criminal dark websites that in similar circumstances have survived motions to dismiss in data breach cases. Id. at 9 (citing, inter alia, Green-Cooper v. Brinker, Int’l., Inc., 73 F. 4^th883, 889 (11^th Cir. 2023).) In short, the Named Plaintiff had failed to allege that there was any misuse of his stolen identity data, and that was fatal to his pleading under the established rules for Article III standing.

Implications For Data Breach Class Action Defendants

Data breach class actions are abundant, as corporate counsel working in this space know. As such, it is crucial for all to have an understanding of the possible defenses available at the pleading stage to reduce litigation risk and force potentially meritless claims to a second round of pleading and motion to dismiss practice. Understanding how district courts analyze nuances in plaintiffs’ pleadings relating to this important area of the law – Article III standing – is critical to launching a successful defense to any such claims.

April 28, 2026April 28, 2026 by Gerald L. Maatman, Jr.

Introducing the Transportation, Automotive, and Logistics Class Action Review – 2026!

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

Duane Morris Takeaway: In an era where the transportation industry underpins global commerce, from last-mile delivery networks to international logistics, legal risk has never been more complex or consequential. Class action litigation, in particular, has emerged as a powerful force shaping how transportation, automotive, and logistics companies operate, manage risk, and plan for the future. Against this backdrop, Duane Morris is proud to announce the first edition of the Transportation, Automotive, and Logistics Class Action Review.

This new publication is designed to provide a comprehensive, data-driven overview of class action litigation trends specific to the transportation sector. Building on the broader framework established by leading annual reviews of class action activity—which analyze hundreds of decisions and billions of dollars in settlements each year—the Review narrows the focus to one of the most dynamic and heavily litigated industries in the modern economy.

Class actions have long been recognized as high-stakes litigation, capable of reshaping business models and imposing significant financial exposure. By aggregating claims across large groups of plaintiffs, these cases can exponentially increase potential damages and create industry-wide ripple effects. Nowhere is this more evident than in transportation, where evolving workforce models, regulatory frameworks, and technological change continue to generate new legal challenges.

Recent litigation trends highlight the growing complexity of the space. For example, courts have wrestled with the scope of the “transportation worker exemption” under federal arbitration law, producing inconsistent rulings that affect employers ranging from trucking companies to warehouse operators. At the same time, issues involving wage-and-hour compliance, independent contractor classification, accessibility requirements, and data privacy are increasingly finding their way into class action complaints.

The Transportation, Automotive, and Logistics Class Action Review captures these developments in a structured, accessible format and offers practitioners, in-house counsel, and industry stakeholders a clear understanding of where litigation risk is heading.

Download your copy today and stay ahead of the curve in transportation, automotive, and logistics class action litigation.

Stay tuned to the Class Action Weekly Wire for more information on the Transportation, Automotive, and Logistics Class Action Review – 2026 coming soon!

April 21, 2026April 21, 2026 by Gerald L. Maatman, Jr.

Introducing The Healthcare Class Action Review – 2026: A Deep Dive Into Healthcare Litigation Trends

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

Duane Morris Takeaway: The healthcare industry continues to face a rapidly evolving class action landscape, and 2025 has proven to be a pivotal year. For that reason, we are pleased to announce the publication of our latest industry-focused eBook, the Healthcare Class Action Review – 2026. From data privacy disputes to billing transparency and pharmaceutical liability, class action litigation is reshaping how healthcare organizations operate and manage risk.

The Healthcare Class Action Review – 2026 is a comprehensive new eBook that examines the most significant developments in healthcare-related class actions over the past year. Healthcare organizations today operate at the intersection of regulation, innovation, and patient expectations. Class action litigation involving healthcare companies, including hospitals, healthcare providers, pharmaceutical companies, biotechnology firms, medical device and health technology companies, and diagnostic and testing companies has evolved from a peripheral phenomenon into a central feature of complex class action litigation. The Healthcare Class Action Review – 2026 offers a clear, structured analysis of these trends, helping legal professionals, compliance teams, and industry leaders stay informed and prepared.

As enforcement intensifies and plaintiffs’ strategies become more sophisticated, understanding class action risk is no longer optional—it’s essential. The Healthcare Class Action Review – 2026 equips readers with the knowledge needed to anticipate challenges and respond effectively in an increasingly complex legal environment.

Download your copy today and stay ahead of the curve in healthcare litigation.

Stay tuned to the Class Action Weekly Wire for more information on the Healthcare Class Action Review – 2026 coming soon!

April 17, 2026April 17, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Compel Arbitration In Parking Lot Dispute, Finding Posted Signs Create Binding Contracts

By Gerald L. Maatman, Jr., Tiffany Alberty, and Brett Bohan

Duane Morris Takeaways: On April 14, 2026, in Brant, et al v. Parking Revenue Recovery Services, Inc., Case No. 1:25-CV-01771 (D. Colo. Apr. 14, 2026), Judge Gordon P. Gallagher of the U.S. District Court for the District of Colorado granted Defendant Parking Revenue Recovery Services, Inc.’s motion to compel arbitration. Plaintiffs, a group of parking lot customers who brought a putative class action, argued that they never agreed to arbitrate and that any arbitration clause was unconscionable. The Court rejected both arguments, finding that by parking in the lots, Plaintiffs assented to the terms posted on conspicuous signs — including a binding arbitration clause — and that the clause was not unconscionable. This ruling reinforces that businesses can form enforceable contracts, including arbitration agreements, through conspicuously posted signage, and that consumers who fail to read posted terms are nonetheless bound by them.

Case Background

Plaintiffs Brian Brant, Brooke Fitz, Robert Caldwell, and Mayenssi Montiel each parked at various parking garages managed by Defendant Parking Revenue Recovery Services, Inc. (“PRRS”) in Denver and Little Rock between 2023 and 2025. (ECF 36 at 1-2) At each of these lots, PRRS posted large red signs at the entrances, exits, and pay stations. (Id. at 2-14) The signs stated, in relevant part, “This is a Contract,” instructed customers to “Read these terms PRIOR to parking,” and included a capitalized, boldfaced “ARBITRATION” heading explaining that “[b]y parking on this Facility, you hereby agree that the sole remedy for all unresolved disputes is binding arbitration, and specifically waive the right to jury trial, class action and/or class arbitration”. (Id.)

Each of the Plaintiffs claimed they did not see the signs. (Id. at 7, 12, and 14.) Some faulted the location, lighting, and number of signs, while others argued there were no gates or speed bumps to slow drivers down enough to read the posted terms. (Id.)

The Court’s Order

The Court granted PRRS’s motion to compel arbitration, addressing both of Plaintiffs’ arguments against enforcement. (Id. at 16-21.)

First, as to whether a valid agreement to arbitrate existed, the Court noted that two other courts in Colorado had recently addressed the same issue with the same defendant. (Id. at 16.) Adopting the analysis of Chief Judge Daniel D. Domenico in Butler v. Asura Technologies USA, Inc., the Court held that a contract was formed when Plaintiffs manifested assent to the implied terms of the parking agreement by choosing to park in the lots. (Id. at 17.) The Court emphasized that the fundamental exchange — temporary use of a parking spot in exchange for a promise to pay — was sufficient to establish contract formation, and that the operator of a parking lot may modify or add to the basic terms by posting signs. (Id.) The Court analogized the posted signage to online “clickwrap” contracts, noting that users of such contracts are regularly bound by terms they never actually read. (Id. at 19.) Accordingly, whether Plaintiffs chose to read the signs was irrelevant because they agreed to the posted terms when they decided to park their cars on PRRS’s lots. (Id. at 18.)

The Court also rejected Plaintiffs’ argument that the arbitration clause was insufficiently specific because it lacked details regarding the scope, rules, or effect of any arbitration ruling. (Id. at 19.) Citing the Supreme Court of Colorado’s long-standing precedent in Guthrie v. Barda, 533 P.2d 487 (Colo. 1975), the Court held that a clause stating disputes “shall be submitted to binding arbitration” is sufficient and enforceable, even without additional procedural details. (Id.)

Second, the Court addressed Plaintiffs’ unconscionability defense. Applying the seven-factor test under Colorado law, the Court acknowledged that the first factor — a standardized agreement between parties with unequal bargaining power — may point toward unconscionability but noted that consumer contracts of adhesion are ubiquitous in modern commerce. (Id. at 20.) The remaining factors, however, weighed against a finding of unconscionability: Plaintiffs had the opportunity to review the terms before parking, the arbitration provision was written in large font against a contrasting red background and arbitration is a commercially reasonable method of dispute resolution. (Id.) The Court concluded bluntly that “if Plaintiffs did not wish to agree to the terms, they could have parked somewhere else.” (Id. at 21.)

The Court ordered the case stayed and administratively closed pending the conclusion of arbitration. (Id. at 22.)

Implications For Employers And Businesses

The Court’s decision in Brant v. Parking Revenue Recovery Services, Inc. affirms that conspicuously posted signage can create binding arbitration agreements with consumers, even in the absence of a signed written contract, a clickthrough mechanism, or any affirmative acknowledgment. For businesses that rely on physical signage to communicate contractual terms — including parking operators, event venues, and service providers — this decision provides a roadmap for drafting and displaying enforceable arbitration clauses. Specifically, businesses should ensure that their signs are prominently displayed, use clear language and contrasting formatting, and explicitly state that use of the premises constitutes acceptance of the posted terms, including arbitration. The decision also reinforces that a consumer’s failure to read posted terms does not relieve them of their contractual obligations, further underscoring the importance of adequate notice over actual knowledge.

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

The New Hospitality Class Action Review – 2026 Is Now Available!

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaway: We’re excited to officially announce the release of the all-new Hospitality Class Action Review – 2026, a new desk reference resource designed to help legal professionals and businesses better understand the evolving landscape of class action law this quickly evolving industry.

As the hospitality industry continues to evolve in a landscape shaped by shifting labor laws, consumer protection regulations, and data privacy concerns, class action litigation has become an increasingly significant area of exposure. This new publication offers a comprehensive, practical guide to understanding and managing these complex legal challenges.

Hotels, restaurants, and travel-related businesses face a growing wave of class actions—ranging from wage and hour disputes to hidden fee allegations and data breach claims. This book breaks down these trends and provides actionable insight into how organizations can proactively mitigate risk and respond effectively when litigation arises. The Duane Morris Class Action Team created this new resource offering clear, practical insights into the rules, trends, and key considerations that define class action practice in the hospitality industry. This is the second book in our new series focusing on industry-specific class action litigation, and dives deep into industry-specific procedures, recent case developments, and strategic considerations.

The Hospitality Class Action Review – 2026 is now available here.

Stay tuned to the Class Action Weekly Wire for more information on this new addition to the Duane Morris Class Action Review series.

April 8, 2026April 8, 2026 by Gerald L. Maatman, Jr.

Webinar Recap: Mid-Year Review Of EEOC Litigation And Strategy – Fiscal Year 2026

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

Duane Morris Takeaways: We were honored to have so many loyal blog readers join us for our annual Mid-Year Review of EEOC Litigation And Strategy For Fiscal Year 2026 yesterday. The full video presentation, hosted by Jerry Maatman, Jennifer Riley, and Daniel Spencer, is below:

The EEOC’s fiscal year (“FY 2026”) spans from October 1, 2025, to September 30, 2026. Through the midway point, EEOC has filed 31 enforcement lawsuits, an uptick when compared to the 22 lawsuits filed in the first half of FY 2025, and the 14 lawsuits filed in the first half of FY 2024.. 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 notable trend thus far is the 7 lawsuits filed by the Chicago District Office, followed by the 5 filings by the Philadelphia District Office, 3 filings by Indianapolis, 2 filings each for Atlanta, Birmingham, Houston, New York, Phoenix, and San Francisco, and one filing each for Charlotte, Los Angeles, Memphis, Miami, and St. Louis offices. Dallas has yet to see a lawsuit filing for FY 2026. By comparison, similarly in FY 2025 Chicago and Philadelphia led the pack in lawsuit filings, followed by Indianapolis, Phoenix, Houston, Atlanta, and Birmingham.

Analysis Of The Types Of Lawsuits Filed In First Half Of FY 2026

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.

Title VII cases once again made up the majority of cases filed. They constituted 50% of all filings in FY 2026 (same as FY 2025, down from 58% of all filings in FY 2024, and significantly down from 68% of all filings in FY 2023). Overall, ADA cases made up the next most significant percentage of the EEOC’s FY 2026 filings for a total of 40%. This is up from 31% in FY 2025, yet similar to the 42% of filings in FY 2024. So far there has only been one filing under the ADEA in FY 2026, down from the uptick in ADEA filings in FY 2025. The EEOC filed 9 ADEA cases in FY 2025, compared to 6 age discrimination cases in FY 2024, 12 age discrimination cases in FY 2023, and 7 age discrimination cases in FY 2022. In the first six months of FY 2026, the EEOC filed 4 cases under the Pregnant Worker’s Fairness Act, on track compared to 6 filings in FY 2025 and 3 filings in FY 2024. So far, no cases filed under the Pregnancy Discrimination Act. Notably absent from FY 2026’s filings are cases brought under the Equal Pay Act and Genetic Information Nondiscrimination Act – two areas that the EEOC repeatedly has cited among its enforcement priorities prior to the second Trump Administration.

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 2026. 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. In the first six months of FY 2026, two industries remained in the EEOC’s targets: Hospitality and Retail. On a percentage basis, Hospitality (Restaurants / Hotels / Entertainment) comprised 25.9% of filings, and Retail had 22.2% of filings. A key difference in FY 2025 compared to FY 2024 is Retail (22.2% of FY 2026 filings) overtaking Healthcare (18.5% of FY 2026 filings) and Manufacturing (7.4% of FY 2026 filings) as the next most targeted industry. Transportation & Logistics entered double digit enforcement activity, at 18.5% of the filings. The remaining industry with at least 2 filings is Construction, representing 7.4% of the filings.

Notable 2026 Lawsuit Filings

Disability Discrimination

In EEOC v. Schneider National, Inc., Case No. 26-CV-905 (D. Md. Mar. 4, 2026), the EEOC filed an action alleging that the defendant, Schneider National, Inc., a nationwide transportation and logistics company, violated the ADA when it refused to reasonably accommodate an applicant with PTSD by denying her request to bring her service dog to work, and withdrawing its job offer because of her disability. The EEOC asserted that the defendant extended a conditional offer of employment to the job candidate. However, next day, after learning that she had post-traumatic stress disorder and needed her service dog, the company withdrew her job offer pending further review. In response to Schneider’s request for additional information, the woman disclosed that her dog was certified as a service animal, trained to alleviate and prevent symptoms of PTSD, and had successfully accompanied her in the truck while she trained and obtained her Class A commercial driver’s license. The EEOC asserted that the defendant refused to allow her to drive with her service dog as an accommodation.

Religious Discrimination

In EEOC v. Blue Eagle Contracting, Inc., Case No. 26-CV-226 (D. Nev. Mar. 31, 2026), the EEOC filed an action against the defendant, a bulk mail delivery contractor for the U.S. Postal Service, alleging religious discrimination in violation of Title VII when it allegedly failed to return a Christian employee truck driver to a weekday shift so he could attend Sunday morning church services. According to the EEOC’s lawsuit, the defendant hired the driver, who informed supervisors of his religious obligations on Sundays stemming from his Christian faith. He was assigned a weekday delivery route, which he worked for several months until he volunteered on an emergency basis to fill a Sunday morning shift after a coworker unexpectedly resigned. The driver reminded his supervisors multiple times that he needed to attend church services on Sunday mornings and said he was only willing to work Sunday mornings until a replacement driver for the weekend shift was hired. The EEOC asserted that although the defendant hired a replacement, it continued to schedule the driver for Sunday shifts, while the replacement drove the weekday shift. The driver ultimately resigned from his position, and the EEOC alleged that the defendant’s failure to accommodate the drivers sincerely held religious beliefs ultimately compelled him to leave his job.

Race Discrimination

In EEOC v. Ourisman Cars Management Company, LLC, et al.), Case No. 26-CV-1233 (D. Md. Mar. 27, 2026), the EEOC brought an action alleging race discrimination after a finance manager at one of the defendants’ car dealerships repeatedly used racially offensive language toward Black salesmen in 2023. Employees reported the behavior to management multiple times, but the EEOC alleged the company did not take sufficient corrective action. The conduct continued, and two employees ultimately left their jobs. The EEOC asserted that the company’s conduct violated Title VII of the Civil Rights Act.

In EEOC v. Nike, Case No. 26-MC-128 (E.D. Mo. Feb 4, 2026), the EEOC filed a complaint to enforce a subpoena related to claims alleging race discrimination against white workers through DEI programs. The agency seeks to compel Nike’s compliance with a May 2024 subpoena then-commissioner Andrea Lucas issued pointing to workforce representation quotas.

Release Of Enforcement Statistics

On April 6, 2026, the EEOC published its FY 2027 Agency Performance Plan (“APP”) and FY 2025 Agency Performance Report (“APR”). The EEOC reported $660 million recovered through administrative enforcement and litigation for 17,680 alleged victims of discrimination. It also reported $528 million recovered through pre-litigation enforcement process (the highest amount in the agency’s 60-year history), $104.6 million for federal employees and applicants, $55 million recovered as a result of systemic investigations, $27 million through resolution of 120 merits lawsuits, $10.8 million obtained through the resolution of 13 systemic lawsuits, and six new systemic lawsuit filings.

Takeaways For Employers

We anticipate that the EEOC will continue to aggressively pursue its strategic priority areas in FY 2026. There is no reason to believe that the annual “September surge” is not coming, in what could be another precedent-setting 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.

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

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

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

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

Case Background

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

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

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

The Ninth Circuit’s Decision

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

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

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

Implications For Employers

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

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

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

Seventh Circuit Holds BIPA Amendment Applies Retroactively, Reversing Three Illinois Federal Court Decisions

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

Duane Morris Takeaways: On April 1, 2026, in Clay et al. v. Union Pacific Railroad Co. et al., Nos. 25-2185 et al., 2026 WL 891902 (7th Cir. Apr. 1, 2026), a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed three federal district court decisions and held that the August 2, 2024, amendment to Section 20 of the Illinois Biometric Information Privacy Act (“BIPA”) applies retroactively to cases pending at the time of enactment. The Seventh Circuit concluded that the amendment is remedial because it governs damages rather than liability and, therefore, applies retroactively under Illinois law.

This decision is a watershed win for BIPA defendants in the class action space. It significantly curtails potential exposure by confirming that plaintiffs may recover, at most, $5,000 in statutory damages for intentional violations or $1,000 for negligent violations per person, rather than on a per-scan basis that previously threatened astronomical liability.

Background

As the Seventh Circuit observed, “BIPA has become a font of high-stakes litigation.” Id. at *1. In response to the Illinois Supreme Court’s decision in Cothron v. White Castle Sys., Inc., 216 N.E.3d 918, 926 (Ill. 2023), which held that BIPA claims accrue “with every scan or transmission” of biometric information, the Illinois General Assembly amended Section 20 of the BIPA in August 2024 to clarify the scope of recoverable damages. The amendment provides, in relevant part, that a private entity that collects or discloses “the same biometric identifier or biometric information from the same person using the same method of collection…has committed a single violation…for which the aggrieved person is entitled to, at most, one recovery under this Section.” 740 ILCS 14/20(b) (emphasis added).

The consolidated appeals arose from three cases asserting typical BIPA theories. Plaintiff Reginald Clay alleged that Union Pacific violated Section 15(b) by requiring repeated fingerprint scans to access the company’s facilities. Plaintiffs John Gregg and Brandon Willis alleged that their employers used biometric timekeeping systems in violation of Sections 15(a), (b), and (d).

The Seventh Circuit emphasized the extraordinary financial stakes. Plaintiff Clay alleged approximately 1,500 fingerprint scans – translating to $7.5 million in potential damages for a single plaintiff if damages were calculated on a per-scan basis. 2026 WL 891902 at *2. In contrast, the putative class claims in Plaintiff Willis’ case exposed the defendant to billions of dollars in potential liability. Id. The three interlocutory appeals posed the same legal question: whether the 2024 amendment to BIPA Section 20 applies retroactively to limit such exposure.

The Seventh Circuit’s Decision

The Seventh Circuit answered that question with a definitive “yes.” It held that the amendment to Section 20 applies retroactively to pending cases. Id. at *3.

Applying Illinois retroactivity principles, the Seventh Circuit explained that where the legislature is silent on the temporal reach of the amendment, as here, courts look to Section 4 of the Illinois Statute on Statutes, which, in turn, directs the court to determine whether the amendment is substantive or procedural. Id. (citing Perry v. Dep’t of Fin. & Pro. Regul., 106 N.E.3d 1016, 1026-27 (Ill. 2018)).

The Seventh Circuit concluded that the amendment is remedial and, therefore, procedural, because it governs damages rather than underlying liability. Id. at *4. Central to this determination was the statutory text and structure. The legislature amended Section 20, which addresses liquidated damages, rather than Section 15, which sets forth the substantive requirements governing the collection and disclosure of biometric data. The Seventh Circuit emphasized that the amendment does not alter “the rights, duties, and obligations of persons to one another,” which are the defining characteristics of substantive changes. Id. (citing Perry, 106 N.E.3d at 1034). Instead, the amendment focuses exclusively on the remedies available once a violation has been established.

The appellees argued that the Illinois Supreme Court’s decision in Cothron established that each biometric scan constitutes a separate “violation,” and that the amendment therefore effected a substantive change by transforming thousands of violations into a single recoverable event, thus “terminating millions of dollars of liability.” Id. at *4. The Seventh Circuit rejected this position, reasoning that it both misinterprets the statute and overstates Cothron’s holding. Id. at *5. The Court clarified that Cothron addressed only when claims accrue under Section 15 and did not consider the meaning of “violation” for purposes of damages under Section 20. Id. According to the Seventh Circuit, that distinction was dispositive. Id.

Ultimately, the Seventh Circuit determined that the amendment does not alter the number of violations or the injuries alleged by plaintiffs but instead limits the damages that may be awarded for those violations. As the Seventh Circuit explained, the amendment “simply changed the statutory award of damages available to plaintiffs, cabining the discretion of trial court judges when they fashion the remedy.” Id. at *6. Accordingly, the Court held that the amendment is remedial in nature and applies retroactively. Id. at *7. It therefore reversed the district court decisions that had concluded otherwise. Id.

Implications for Companies

Clay is one of the most consequential BIPA defense rulings in years. It materially reshapes the litigation landscape in several key respects:

Caps on exposure: The decision eliminates the “per-scan” damages theory asserted by plaintiffs that drove outsized settlement pressure and bet-the-company risk.
Immediate impact on pending cases: Defendants in ongoing litigation now have strong grounds to limit damages and revisit class certification, settlement posture, and jurisdictional arguments.
Strategic leverage: The ruling provides powerful leverage in motion practice and settlement negotiations, particularly where plaintiffs previously relied on inflated damages models.
Deterrence of new filings: By significantly reducing potential recoveries, Clay may dampen the volume of new BIPA filings and recalibrate plaintiffs’ bar incentives.

In sum, Clay delivers a decisive, defense-friendly interpretation of BIPA’s damages framework. Companies facing biometric privacy claims should promptly assess how this ruling affects their litigation strategy and potential exposure.

April 1, 2026April 1, 2026 by Gerald L. Maatman, Jr.

New York Federal Court Recommends Denial Of Class Certification In Gender Pay Discrimination Suit Against Bloomberg

By Gerald L. Maatman, Jr., Denis Yavorskiy, and Elizabeth Underwood

Duane Morris Takeaways: On March 24, 2026, in Ndugga v. Bloomberg L.P., No. 20 Civ. 7464, 2026 WL 828730 (S.D.N.Y. Mar. 24, 2026), Magistrate Judge Gabriel W. Gorenstein in the U.S. District Court for the Southern District of New York issued a Report and Recommendation recommending that class certification be denied in a gender-based pay discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (“NYSHRL”). The Magistrate Judge determined that Plaintiff’s statistical evidence was not significant and flawed and that Plaintiff failed to show that any pay disparity was traceable to a particular senior executive at Bloomberg L.P. (“Bloomberg”).

For employers defending against pattern-or-practice pay discrimination class actions, this decision provides a roadmap for defeating commonality and is a reminder that statistical evidence must be both methodologically sound and causally connected to an identified employment practice.

Case Background

Naula Ndugga, a Black female news producer formerly employed at Bloomberg News, sued Bloomberg alleging gender-based pay discrimination. Ndugga began working as a paid intern at Bloomberg News in September 2017. Ndugga alleged that she was paid a starting salary of $65,000 while male producers hired out of the same internship program received $75,000 and that she was repeatedly overlooked for raises, promotions, and favorable assignments. Her operative complaint, filed in July 2024, sought certification a “U.S. Class” and a “New York Class,” each of which included female reporters, producers, and editors who “(1) were not Team Leaders or in other supervisory positions, and (2) were subjected to [Bloomberg’s] compensation systems.” Id. at *2-3. According to Bloomberg, members of the putative classes worked in nearly 30 cities, in more than 30 different business units, held more than 30 different job profiles, and were assigned to more than 40 different peer groups. Id. at *5.

Central to Ndugga’s theory was that compensation at Bloomberg News was controlled by a “single decisionmaker:” Reto Gregori, Bloomberg News’ deputy editor and a member of its Editorial and Research Management Committee. Id. at *4. Ndugga maintained that Gregori “micromanaged, at both systemic and individual levels, every stage of [Bloomberg News’] multipart evaluation and compensation systems,” resulting in lower pay for women. Id. at *5. Bloomberg countered that performance ratings and compensation decisions were made by hundreds of different managers across the organization. Id.

Ndugga retained labor economist Dr. David Neumark, who performed a regression analysis comparing compensation between female and male employees while controlling for variables such as race, experience, education, job profile, performance ratings, business unit, and an accounting category referred to as “Cost Center.” Id. at *19. For the proposed U.S. Class, Neumark found that female employees’ total compensation was 3.1% below that of similarly situated male employees, which was a difference of 1.64 standard deviations. Id. at *20. For the proposed New York Class, Neumark found a 4.4% disparity, amounting to a difference of 2.29 standard deviations. Id.

The Court’s Analysis

Magistrate Judge Gorenstein’s recommended denying class certification on the grounds that Ndugga failed to put forward sufficient evidence of discrimination to satisfy the commonality requirement of Rule 23(a)(2).

First, the Magistrate Judge determined that Neumark’s 1.64 standard deviation result as to the proposed U.S. Class was, by Neumark’s own admission, not statistically significant. Citing Ottaviani v. State Univ. of New York at New Paltz, 875 F.2d 365, 371 (2d Cir. 1989), the court explained that “[a] finding of two standard deviations corresponds approximately to a one in twenty, or five percent, chance that a disparity is merely a random deviation from the norm.” Id. at *15. While some courts have relaxed this threshold for small samples sizes, the Magistrate Judge found no basis for disregarding this rule because Neumark’s analysis was based on a large dataset of 750 compensation records. Id. at *31.

Second, for both proposed classes, the Magistrate Judge found that Neumark’s inclusion of “Cost Center” as a control variable in his regression analysis was improper. Cost Center is an organizational accounting category to which costs are charged, and Neumark even acknowledged that it “does not play a role in compensation guidelines.” Id. at *35. Bloomberg’s expert, Dr. Denise Neumann Martin, demonstrated that when Cost Center was excluded from the analysis, any observed pay differences between men and women were no longer statistically significant at either the 5% or 10% levels. Id. at *38. Accordingly, the Magistrate Judge found that the inclusion of this variable “obfuscate[d] the principal explanatory variable” and created a mere “appearance of difference.” Id.

Finally, the Magistrate Judge agreed with Bloomberg that Ndugga did not provide adequate evidence to show that any disparity in pay was traceable to Gregori. Id. Specifically, the court noted that even if Gregori may have been involved in all aspects of compensation, this does not in itself establish that he was responsible for any pay disparity. Id. at *39.

Implications For Employers

This Report and Recommendation in the Ndugga case is a win for employers defending against pattern-or-practice gender pay discrimination class actions and provides guidance on how to defeat a showing of commonality. Employers should scrutinize a plaintiff expert’s findings and assumptions, including whether they fall below the two-standard-deviation threshold, the size of the data set considered, and whether certain control variables are irrelevant like the Cost Center variable was here.

The court’s analysis also illustrates that where lower-level managers exercise substantial discretion over performance ratings and compensation, the involvement of a senior executive in a final review capacity does not automatically transform the process into a class-wide common policy. Even if a plaintiff can show a common mode of exercising discretion through a decisionmaker’s influence, she still must establish a causal relationship between this practice and the pay discrimination alleged.

March 31, 2026March 31, 2026 by Gerald L. Maatman, Jr.

AbbVie Defeats Genetic Privacy Class Action Because Request For Plaintiff’s Family Medical History Was Not A “Condition Of Employment”

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

Duane Morris Takeaways: In Henry v. AbbVie, Inc., No. 23-CV-16830 (N.D. Ill. Mar. 20, 2026), Judge Manish S. Shah of the U.S. District Court for the Northern District of Illinois granted defendant’s motion for summary judgment and dismissed a claim brought under the Illinois Genetic Information Privacy Act (“GIPA”). In his ruling, Judge Shah determined that the alleged request for plaintiff’s family medical history (which history Plaintiff did not provide) during his pre-employment medical screening was not a “condition of employment.” The decision is welcome news for employers that ask employees to undergo medical exams. The ruling indicates that an employer does not necessarily request genetic information “as a condition of employment” by requiring an employee to undergo a medical exam (even if an employee is asked to disclose genetic information during the exam).

Background

Plaintiff Daniel Henry was assigned to work for Defendant AbbVie, Inc., a biopharmaceutical company. During the onboarding process, Plaintiff was required to undergo a “medical surveillance,” which included “questionnaires, blood work, and a brief physical exam.” Henry v. AbbVie, Inc., 2026 WL 788630, at *2 (N.D. Ill. Mar. 20, 2026).

AbbVie used Premise Health, a third-party healthcare provider, to conduct Plaintiff’s medical screening. During the screening, Premise Health nurses asked Plaintiff to complete a written questionnaire and to undergo a physical examination. “Section U” of the questionnaire asked for Plaintiff’s genetic information (specifically, his family medical history), though Plaintiff did not complete that part of the form. Plaintiff claimed that nurses also verbally asked for his family medical history during the physical exam. After the exam, Plaintiff worked at an AbbVie facility in Illinois for four months.

Plaintiff subsequently sued AbbVie under the GIPA, alleging that the company violated Section 25(c)(1) of the statute by “solicit[ing], request[ing], [or] requir[ing] . . . genetic information of a person or a family member of the person . . . as a condition of employment [or] preemployment application.” 410 ILCS 513/25(c)(1).

AbbVie first responded to Plaintiff’s Complaint by moving to dismiss under Federal Rule of Civil Procedure 12(b)(6). Judge Shah denied AbbVie’s motion to dismiss after determining that the family medical history information sought during the medical screening constituted “genetic information” under the GIPA. See Henry v. AbbVie, Inc., 2024 WL 4278070, at *5-6 (N.D. Ill. Sept. 24, 2024).

AbbVie later moved for summary judgment, arguing that: (1) AbbVie did not request Plaintiff’s genetic information because third-party Premise Health (not AbbVie) conducted the screening; (2) even if AbbVie requested Plaintiff’s genetic information, the request was inadvertent because the medical questionnaire instructed Plaintiff to not disclose genetic information; and (3) AbbVie did not condition Plaintiff’s work status or assignment on any request for his genetic information.

The Court’s Decision

The Court granted AbbVie’s motion for summary judgment. While the Court was not persuaded by AbbVie’s first two arguments, it concluded that AbbVie’s third argument warranted dismissal of Plaintiff’s GIPA claim.

Request for Genetic Information

The Court first considered whether AbbVie can be characterized as having requested Plaintiff’s family medical history despite third-party Premise Health having conducted the medical screening. In answering in the affirmative, the Court relied on the GIPA’s incorporation of certain protections found in the federal Genetic Information Nondiscrimination Act (“GINA”). See 410 ILCS 513/25(a) (“An employer … shall treat genetic testing and genetic information in such a manner that is consistent with the requirements of federal law, including but not limited to [GINA].”). The Court cited a regulation promulgated under GINA providing that an employer that requires employees or applicants to undergo medical examinations “must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job.” 29 C.F.R. § 1635.8(d). Based on this federal regulation, the Court concluded that AbbVie “[n]ot telling Premise Health to elicit genetic information is not enough; the [GIPA] requires an affirmative instruction not to elicit it.” Henry, 2026 WL 788630, at *5.

Inadvertent Disclosure

AbbVie’s second argument turned on the GIPA’s “inadvertent exception,” which states that “inadvertently requesting family medical history by an employer … does not violate this Act.” 410 ILCS 513/25(g). The Court observed that AbbVie’s health questionnaire advised Plaintiff to “not provide any genetic information, including family medical history.” Henry, 2026 WL 788630, at *6 (citation omitted). Thus, the Court held that the inadvertent exception barred Plaintiff’s claim to the extent it was premised on the written questionnaire. See id. (“The disclaimer on AbbVie’s form was enough to make any disclosure on the form inadvertent.”). But the Court determined that the exception did not necessarily bar Plaintiff’s claim to the extent it was premised on nurses orally asking for his family medical history. See id. (“[T]he written disclaimer in the form does not necessarily mean that [Plaintiff] knew that he should not disclose genetic information in response to verbal questions during his physical exam.”) (emphasis added).

Request as a Condition of Employment

Finally, the Court turned to AbbVie’s argument that Plaintiff’s claim failed because any request for his family medical history was not a condition of his employment. See 410 ILCS 513/25(c)(1) (an employer may not “solicit, request, [or] require … genetic information of a person or a family member of the person … as a condition of employment [or] preemployment application”) (emphasis added). The Court agreed with AbbVie and granted the company’s motion for summary judgment on this basis, holding that no genuine issue of material fact existed regarding AbbVie’s request for Plaintiff’s family medical history not having been a condition of his employment. The Court further noted that “the request for genetic information on the written questionnaire was not a condition of [Plaintiff’s] employment, for the simple fact that [Plaintiff] did not fill out that section and it did not affect his employment with AbbVie.” Henry, 2026 WL 788630, at *6.

Moreover, the Court concluded that even if Plaintiff was required to undergo a medical exam to be eligible to work at AbbVie, that did not mean that the verbal request for his family medical history (made during the exam) was a condition of his employment. See id. at *7. The Court thus recognized an important distinction between (i) AbbVie requiring Plaintiff to undergo a medical screening as a condition of employment and (ii) AbbVie specifically requesting Plaintiff’s family medical history as a condition of employment. See id. (“[T]hat [Plaintiff] could not decline to complete his medical surveillance does not create a genuine dispute over whether the verbal request during his exam was a condition of his employment. The undisputed evidence is that a contractor could decline parts of the surveillance and still have the surveillance considered completed.”). Accordingly, because AbbVie did not condition Plaintiff’s employment on a request for his genetic information, the Court granted summary judgment in the company’s favor.

Takeaways For Companies

As noted in a prior blog post, recent decisions suggest that courts may be hesitant to dismiss GIPA claims (especially at the pleading stage). Given the GIPA statute’s strict penalty provision – under which statutory damages can quickly become significant ($2,500 per negligent violation and $15,000 per intentional or reckless violation, see 410 ILCS 513/40(a)(1)-(2)) – we have advised employers to ensure they comply with the statute regarding any health screenings they ask applicants or employees to complete (including by explicitly advising applicants and employees not to disclose their family medical histories during the screenings).

In this plaintiff-friendly litigation landscape, the Henry decision comes as welcome news for GIPA defendants and companies that have employees undergo medical screenings. Importantly, Henry suggests that an employer does not necessarily violate the GIPA by requesting an employee’s genetic information “as a condition of employment” by merely directing her to undergo a medical exam (during which the employee may or may not be asked to provide her family medical history).