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Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman, special counsel Justin Donoho, and senior associate Tyler Zmick with their discussion of the key trends analyzed in the 2025 edition of the Duane Morris Privacy Class Action Review, including the major settlements and cutting-edge litigation theories percolating in a variety of privacy-related class actions, including the Biometric Information Privacy Act (“BIPA”), advertising technologies (“adtech”), and artificial intelligence tools.
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Episode Transcript
Jerry Maatman: Welcome, loyal listeners, to the next installment of the Class Action Weekly Wire. My name is Jerry Maatman, I’m a partner at Duane Morris, and joining me today are my colleagues, Justin and Tyler.
Justin Donoho: Thank you, Jerry, happy to be part of the podcast.
Tyler Zmick: Thanks, Jerry. I’m glad to be here.
Jerry: Today on our podcast we’re discussing the recent publication of this year’s edition of the Duane Morris Privacy Class Action Review. Our loyal listeners can download the desk reference from our blog, the Duane Morris Class Action Defense Blog. Justin, can you tell our listeners a little bit about our desk reference?
Justin: Yes, and thank you. Last year saw a continued explosion in privacy class action litigation. As a result, it is imperative that companies beef up their efforts to comply with privacy laws in the many ways that companies interact with employees, customers, and others. To that end, the class action team at Duane Morris is pleased to present the Privacy Class Action Review – 2025. This publication analyzes the key privacy-related rulings and developments in 2024, and the significant legal decisions and trends impacting privacy class action litigation for 2025 in a variety of different privacy-related subject areas. We hope that companies and employers will benefit from this resource in their compliance with these evolving laws and standards.
Jerry: Well, just on this podcast I know the assembled speakers have over 60 years of experience in dealing with these issues. But I’d have to say 2024 was a year of incredible change and flux. Tyler, what are some of the key guideposts out there in the case law over the past 12 months?
Tyler: So, there’s been an explosion of class action lawsuits in recent years, including 2024, involving adtech technologies. And of course, biometric data. I think the biggest driver is the fact that we are operating in a legal environment that is evolving so quickly that said technology has far outpaced the law, especially when it comes to new tools like Meta Pixel, Google Analytics, and other adtech technologies. While these tools are innovative in many ways that benefit businesses, they’re also collecting massive amounts of sensitive data – data that consumers may have never explicitly agreed to share. The courts are now grappling with outdated statutes, such as old wiretapping and eavesdropping laws, and trying to apply them to modern technologies.
Justin: Absolutely. Businesses that rely on these technologies have often done so without thinking through a variety of ways that they can mitigate the risk of noncompliance or mitigate the risk of facing any class action lawsuit in the first place, by modernizing their terms of service and data privacy policies. The rise in class actions is directly related to an increased public awareness about data privacy, and of course, the increased aggressiveness of plaintiffs’ attorneys trying to expand the application of the Illinois Biometric Information Privacy Act, for example, with high-profile cases alleging violations of various AI technologies that perform functions other than facial recognition or any kind of person recognition.
Jerry: Speaking of BIPA – 2024 certainly saw a mixed bag of rulings related to biometric data collection, particularly on the issue of facial analysis technologies. So, how does one make sense, if you’re a corporate decision-maker, of what businesses are facing and the risks that are out there, given these murky waters with the case law developments?
Tyler: That’s a great question. The mixed rulings obviously create an atmosphere of uncertainty. And that’s what I think is driving so much of the litigation companies are basically being forced to decide whether to settle or to litigate these cases and risk very high damage awards, because often there are substantial penalties for violations when courts release decisions on issues where there’s no clear-cut answer, and when the decisions are often conflicting, such as on the issue you mentioned about whether certain types of data count as biologically unique. It leaves businesses with many gray areas to navigate, and this is only compounded by the reality that these technologies evolve faster than courts can keep up.
Justin: Yes, and from the business side, companies are being forced to take a much more cautious approach when it comes to how they collect and process biometric data. For example, they’re revisiting their privacy policies in terms of service and taking a closer look at the technologies they use, too. Some companies, especially larger ones, like Google, Meta, and Oracle, have already settled for significant amounts, which sends a clear signal to others that ignoring these issues is just simply too costly.
Jerry: Let’s talk about settlements. So, the plaintiffs’ mantra is file the case, certify the case, then monetize the case. Certainly, in the last 12 months we saw some eye-popping settlements, particularly the $1.4 billion deal between Meta and the State of Texas. What does this tell us about the broader implications of these settlements and what it means for companies operating in this sort of environment?
Justin: Yeah, the size of these settlements is indicative of the stakes involved for sure. As you mentioned, the Meta settlement alone was huge, and it’s reflective of the kind of high-dollar cases we are now seeing across the board. Privacy class action litigation has outpaced other areas of law in terms of growth. And as companies continue to allegedly violate privacy laws, there’s real financial risk involved statutory damages in some of these privacy laws can reach up to $5,000 per violation, which to a plaintiff means per website visit of millions of visitors. And with class actions these violations multiply quickly. This creates significant potential liability for companies.
Tyler: I think that’s exactly right. and it’s not just the monetary cost. These cases also damage a company’s reputation in the world we live in. Consumers are more aware than ever of how their data is used. And if you’re a company in a settlement like that, it’s not just about paying a fine – you’ve also potentially lost consumer trust, and that can have long term business implications.
Jerry: Well, we’ve certainly seen a rise in filings of privacy-related class actions, but we’re also seeing an increase in the skill and ability of the plaintiffs’ bar to secure certification in these class actions. Do you expect this trend to continue during 2025?
Justin: Well, at least the rise in privacy class actions I expect to continue. I mean, it’s been going like this, and it’s going to keep going. We’ll see about the certification decisions as more consumers become aware of their rights, and as data privacy laws continue to evolve. I think we’ll continue to see an uptick in class action filings for sure. Privacy law is still in its infancy in many respects. and many of the current legal frameworks just don’t fully cover the realities of all the new technologies, and how data is being used today, and how data science is evolving the ambiguity is creating fertile grounds for litigation, and I expect that to keep growing.
Tyler: And from a litigation standpoint – yes, we’ll likely continue to see class actions. However, I do think that courts will eventually have to provide more clarity on some of these unsettled issues. We’ve got one of the first federal appeals brewing soon, for example, regarding whether online advertising technology violates the Federal Wiretap Act. As things currently stand, though, the litigation landscape in this area and many other areas of privacy law remain in flux, and there’s still a lot of uncertainty about certain privacy laws, and how they will be applied.
Jerry: Well, I guess the bottom line is we’ve reached a pivot point, certainly a pivotal moment in the intersection of technology and privacy law. Well, thank you, Justin and Tyler, for being here today, and thank you to our loyal listeners for participating in this week’s Class Action Weekly Wire. Please stop by and visit our blog for a free copy that you can download of the Privacy Class Action Review e-book.
Tyler: Thank you for having me, Jerry, and thank you, Listeners.
Justin: Thank you so much, everybody.