Category: Class Action Weekly Wire

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley and associate Nathan Norimoto discussing the key developments in civil rights class actions, including a notable ruling from the U.S. Supreme Court.  

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

Episode Transcript

Jennifer Riley: Hello, everyone, and thank you for being here again for the next episode of our weekly, podcast the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today is Nathan Norimoto. Thank you, Nathan, for being on the podcast today.

Nathan Norimoto: Thank you, Jen. Great to be here.

Jennifer: Today, we wanted to discuss some trends and important developments in the area of civil rights class action litigation. Nathan, do you want to talk a bit about this area before we get into the recent developments?

Nathan: Sure. Yeah, so for over 70 years, class actions have been amongst the most powerful tools to secure civil rights in America. This began with the class action of Brown, et al. v. Board Of Education, in which the United States Supreme Court declared school segregation unlawful and arguably set the stage for the civil rights movement. In 1966, Congress and the judicial rule-making authorities crafted Federal Rule of Civil Procedure Rule 23 with the express goal of empowering litigants, challenging systematic discrimination – particularly segregation – to force courts to order widespread injunctive relief that would protect members of the class as a whole. And ever since, this provision remains as salient to the enforcement of federal civil rights statutes and constitutional claims as it was at its inception.

So, for a multitude of reasons, class actions are often a tool of first resort by advocacy groups to remedy civil rights violations – which we certainly saw in 2024.

Jennifer: Thanks, Nathan. What were some of those major developments in 2024 in this area of civil rights class action litigation?

Nathan: So, class actions in the civil rights context span numerous issues. Last year, given this breadth of subject area, there are well over 100 decisions in this space. However, the percentage of times courts granted a plaintiff’s or plaintiffs’ motion for class certification was down significantly last year, with courts granting certification about 40% of the time – in contrast to 2023, where courts granted class certification around 62% of the time. And so last year we saw a bit of a downtrend as to when these classes were being certified.

Jennifer: Are there any key rulings that our listeners need to know about in this area?

Nathan: So, among all civil rights cases, the United States Supreme Court issued an important ruling in the City Of Grants Pass, Oregon, et al. v. Johnson. In that case, the Supreme Court addressed whether a city’s public camping laws violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Grants Pass, Oregon had ordinances banning camping on public property which can lead to fines and imprisonment. The Ninth Circuit had previously ruled that such laws could not be enforced against homelessness if there were not enough shelter beds available. The plaintiffs, two individuals experiencing homelessness, had filed a class action alleging that Grants Pass’ enforcement of these laws was unconstitutional under the Eighth Amendment. The district court agreed with the plaintiffs and issued an injunction against the city’s enforcement of the public camping laws, and then the Ninth Circuit affirmed the district court’s ruling. The United States Supreme Court then granted certiorari, and it overruled the Ninth Circuit’s decision. The Supreme Court determined that enforcing general public camping laws does not violate the Eighth Amendment. The court opined that the Eighth Amendment’s cruel and unusual punishment clause focuses on the nature of the punishments and not the criminalization of certain behaviors. And so, the court found that the punishments of fines and brief jail time terms imposed by grants passed were not cruel or unusual under the Eighth Amendment. The court also rejected arguments that the enforcement of these laws against individuals who are involuntarily homeless should be considered cruel and unusual, and in the end the court concluded that issues like homelessness and how to address homelessness involved complex policy decisions that were best left for elected representatives and not federal courts to address. So, in conclusion, the court overruled the Ninth Circuit’s ruling, finding that the enforcement of public camping laws by Grants Pass did not violate the Eighth Amendment.

Jennifer: Wow, what an interesting decision. So, you mentioned that there were over a hundred rulings in this area last year. How are things progressing so far in 2025 – have there been any interesting cases, interesting rulings where class certification was granted?

Nathan: Definitely, yeah. So, one example is Rossow, et al. v. Jeppesen. In that case, the plaintiff filed a punitive class action against the defendant, the Director of the Idaho Department of Health and Welfare, challenging a regulation that designated the prenatal use of controlled substances as child abuse, neglect, or abandonment – with the exception, of course, being that any substances that were prescribed by medical professional would not fall under this regulation. The regulation also included a clause that mandated individuals who use controlled substances be listed on the Central Registry for a minimum of ten years, and the plaintiff in this case was placed on the registry in December of 2021 after she tested positive for THC following the birth of her child. The plaintiff filed a class action, alleging violations of due process and equal protection under the United States Constitution on behalf of herself and others in similarly situated positions. Plaintiff filed a motion for class certification, and the court granted the motion. The court had found that the class met the numerosity requirement, as there were over 1,000 women on the registry for a similar reason as the plaintiff. The court also determined that the plaintiff’s claim raised common questions of law and fact, including whether the placement on the Central Registry affected a class member’s access to employment and their other personal rights, substantive rights, and whether there was a discriminatory intent, and how reports of child abuse were substantiated based on prenatal drug use. There were some procedural details and statute of limitations differences between the class members. But despite these differences, the court found that commonality was met because the class shared at least one significant common issue, including being placed on the registry. The court determined that the plaintiff’s claims for declaratory and injunctive relief met the requirements under Rule 23, and ultimately certified the class.

Jennifer: Well, it certainly seems like we will be continuing to see courts granting these motions in 2025, and the plaintiffs’ bar aggressively pursuing certification on behalf of plaintiffs. We know that successful certification often leads to settlements between the parties rather than a continuation of the litigation and ultimately a trial. So, how successful were plaintiffs in securing settlement dollars in 2024?

Nathan: So, settlement dollars in civil rights class actions in 2024 were significant. The top 10 settlements totaled $313.8 million. However, this was a significant decrease from the prior year, when the top 10 civil rights class action settlements in 2023 topped $643.15 million.

Jennifer: Wow, what a difference! So, the top settlement amounts in each area of law have been massive in recent years. And that’s a major trend that we track in the Duane Morris Class Action Review. We will continue to track those numbers in 2025 and keep our listeners aware of developments. Nathan, is there anything else corporate counsel and employers should be on the lookout for over the upcoming year?

Nathan: Definitely. Given the volume of litigation in the civil rights area, as well as the frequency with which these classes are granted, and also burgeoning issues that percolate, for example, claims regarding COVID-19, claims regarding increased issues with homelessness, and others, it’s anticipated that the plaintiffs’ bar will continue to be creative and inventive in this space for the coming year.

Jennifer: Well, thank you so much for all of your great analysis, Nathan – thank you for being here with me today. Listeners, thank you for tuning in. And if you have any questions or comments on today’s podcast, please send us a DM on Twitter @DMClassAction.

Nathan: Thanks, Jen. Thanks for having me on this morning!

Duane Morris Takeaway: Our 100th episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Zev Grumet-Morris discussing the key developments under the Class Action Fairness Act (“CAFA”).

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

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners for being here for our 100th episode of our weekly podcast the class Action Weekly Wire. It’s a privilege today to have Zev Grumet-Morris with me to do our 100th podcast. Welcome, Zev.

Zev Grumet-Morris: Great to be here, Jerry. Thanks for having me on the 100th episode.

Jerry: Today, we’re diving into something that has a big impact on litigation in general and class action litigation in particular, the Class Action Fairness Act of 2005. It’s discussed in much detail in our annual Duane Morris Class Action Review. Zev, can you start explaining to our listeners what the CAFA is and why it’s significant?

Zev: Absolutely. So, the Class Action Fairness Act, or CAFA, was signed into law by President George W. Bush on February 18, 2005, and it’s a key statute that expanded federal jurisdiction over large class actions and mass actions. And essentially, it just shifted most of these lawsuits from state courts to the federal courts, which has had major implications for both plaintiffs and for defendants.

Jerry: So how does CAFA function in practice for corporations?

Zev: So, functionally, CAFA provides a tool for defendants, especially big businesses, big employers, to remove class actions from state court to federal court, and that’s a big deal, because federal courts are often viewed as more neutral forums for corporate defendants. And so, this ability to forum shop, if you will, has influenced how both plaintiffs’ lawyers and defense attorneys plan their litigation strategies.

Jerry: I’ve always thought that CAFA underscores the notion that location is everything, just like buying real estate – location, location, location. And those who have defended class actions know it sometimes can be very different in state court as compared to federal court. How easy is it, after CAFA, for a plaintiff to keep a class action in state court as opposed to resisting removal to federal court?

Zev: Well, post-CAFA, it’s gotten very difficult, or at least more difficult. But before CAFA it was pretty easy, actually, for plaintiffs to keep cases in state court. Federal jurisdiction requires that every plaintiff meet a $75,000 amount in controversy threshold, and for complete diversity to exist between the plaintiffs and the defendants. So, that meant that plaintiffs’ lawyers before CAFA could often craft cases to stay in state court, especially in jurisdictions with elected judges who might be less sympathetic to out-of-state corporate defendants.

Jerry: So how did CAFA change that dynamic?

Zev: Well, it changed it fairly significantly. So, under CAFA, just one class member being from a different state than a defendant is enough to create diversity. In addition, the total amount in controversy only needs to exceed $5 million, and the class must have at least 100 members. So, this lower threshold made it much easier for corporate defendants to move cases into federal court.

Jerry: Well, we all know that California, New York, and states of that ilk are epicenters for class action litigation, and their defendants invoke CAFA more often than in other areas of the country, and therefore the jurisprudence on the interpretation of CAFA is probably more advanced in the Second and Ninth Circuit, and especially in the Ninth Circuit, than in other areas of the country. In terms of the last 12 months, what, in your opinion, would be the key decisions that have interpreted CAFA?

Zev: Yeah, and you’re absolutely right with the comment you make about the Ninth Circuit. But, as you point out, it’s not the only circuit that comes out with key decisions. So just this past January, the D.C. Circuit issued a rare CAFA ruling in National Consumers League v. Starbucks. So, the National Consumers League, which is a nonprofit focused on consumer protection, they filed a lawsuit in D.C. Superior Court against Starbucks, alleging that the company had misled customers by claiming to ethically source its coffee and tea, when in reality they were actually sourcing allegedly from farms that were involved in labor abuses and that violated the D.C.’s Consumer Protection Procedures Act, or the CPPA. And they filed this lawsuit on behalf of both NCL and the general public. Now, Starbucks attempted to remove the case to federal court under the CAFA. NCL opposed that removal, arguing that the case didn’t meet the criteria for federal jurisdiction, and then, as it turns out, the court agreed with them. They held that the CAFA did not apply because NCL’s lawsuit was not a class action under Rule 23 or any similar rule. So, although the complaint referenced damages and public interest, NCL explicitly stated that it was not seeking representative damages on behalf of the public which undermined Starbucks’ claim that the amount in controversy exceeded the $5 million threshold. And the court also found that diversity jurisdiction failed, because, even though the parties were from different states, the damages NCL sought amounted to just about $34, more or less, few cups of coffee, and that fell short far short of the $75,000 threshold. So, in the end Starbucks’ argument that potential attorneys’ fees could push the amount over the limit was deemed to be far too speculative, and courts have repeatedly held such fees cannot be aggravated in CPPA cases. So, at the end of the day, the court remanded the action back to the state court.

Jerry: That’s a great analysis. I’ve always thought that CAFA is like a mini trial within a trial in terms of figuring out what procedurally ought to be the venue where a class action is litigated. Well, thanks so much for giving us your insights and thought leadership on CAFA litigation, and how it impacts corporate defendants over 2024 and what we can expect in 2025. Thanks so much for joining us on our 100th podcast.

Zev: Happy to be here, Jerry. Thanks.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, Alex Karasik, and Greg Tsonis discussing the upcoming Duane Morris webinar that will provide analysis of key developments in the first six months of the EEOC’s fiscal year 2025 and the 2025 edition of the EEOC Litigation Review.

Join us on Monday, May 5 at 12 p.m. Central. Learn more and register here: Mid-Year Review of EEOC Enforcement Litigation and Strategy. Stay tuned for the new edition of Duane Morris’ EEOC Litigation Review launching on our blog this Thursday, May 1.

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

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris and joining me today on the podcast are my partners Jen Riley, Alex Karasik, and Greg Tsonis. Thanks so much all of you for being here on the podcast.

Jennifer Riley: Thank you, Jerry, happy to be part of today’s podcast.

Alex Karasik: Thanks, Jerry. Glad to be here.

Greg Tsonis: Great to be here, Jerry.

Jerry: Today we have a message about a great webinar coming up, Duane Morris’ mid-year review of the EEOC enforcement litigation and strategy. The host will be the four of us, and we wanted to personally invite all of our listeners and readers to sign up and attend this 30-minute event. Jen, do you want to share with our listeners a little bit about the content of this webinar?

Jennifer: Sure, Jerry. The webinar will be a quick 30-minute panel discussion where the four of us will review the EEOC’s latest strategic priorities and lawsuit filings. We’ll take a look at the first six months of the Commission’s fiscal year 2025. We’ve analyzed the strategic priorities, the lawsuit filings, and other activity for fiscal year 2025 to date, and we’ll provide our listeners that analysis in a short half-hour segment.

Jerry: This virtual program is in response to many phone calls we’ve been receiving from general counsel, HR professionals, and the like in terms of what in the world is going on with the EEOC. So, we’ve designed this webinar for corporate counsel, human resource professionals, and business leaders to provide insights into the EEOC’s latest enforcement initiatives, and just what is going on in Washington, D.C. in terms of all things involving the EEOC. Alex, what are the webinar details?

Alex: The webinar is scheduled for Monday, May 5, from 12 p.m. to 12:30 p.m. Central time. We will provide the sign-up link in the episode transcript on the Class Action Defense Blog. This webinar is really great information-packed 30 minutes and it’s well worth your time – especially to get insights into the EEOC’s activities on the first half of its fiscal year.

Jerry: This webinar will prove to be very informative, and we hope all of our listeners for our weekly podcast series can tune in for it.

Greg: We also want to remind listeners that we are publishing our primer on EEOC litigation, the EEOC Litigation Review 2025 edition this coming Thursday, May 1. Given the importance of compliance with workplace anti-discrimination laws for our clients, the Review is a great resource for corporate counsel and human resources professionals. It’ll be available on the Class Action Defense Blog in e-book format.

Jerry: Well, thanks, Jen, Greg, and Alex for being here today. We’re looking forward to our webinar next week, and to sharing our insights in terms of all things EEOC and what is going on in Washington, D.C. And we’ll continue to share those details in updated blog postings and sharing further thoughts and analysis regarding what employers can do to get ready.

Jennifer: Thanks, Jerry, and, thanks to our audience. Hope to have everyone at the webinar next week.

Greg: Thanks for having me, Jerry, and thank you to all the listeners.

Alex: Thank you, everyone.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Sean McConnell and senior associate Daniel Selznick with their discussion of the key trends analyzed in the 2025 edition of the Antitrust Class Action Review, including the rise of pricing algorithm claims and notable class certification rulings.  

Bookmark or download the Antitrust Class Action Review – 2025, which is fully searchable and viewable from any device.

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

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here today for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today are Sean McConnell, the chair of the Duane Morris Antitrust and Competition Group, and senior associate Daniel Selznick, who are both from our Philadelphia office. Gentlemen, thank you for being on the podcast today.

Sean McConnell: Thank you, Jerry, happy to be part of the podcast.

Daniel Selznick: Yeah, thanks, Jerry. Glad to be here.

Jerry: Today on the podcast we’re discussing the recent publication of this year’s edition of the Duane Morris Antitrust Class Action Review. Listeners can find this e-book publication on our blog, the Duane Morris Class Action Defense Blog. Sean, can you tell our listeners a little bit about this desk reference publication?

Sean: Absolutely, Jerry. In 2024, class action litigation involving antitrust claims had several key developments. Most antitrust class actions are settled before trial, and one of the most crucial phases in the cases is class certification. Thus, the order granting or denying a motion to certify a class in these cases is critical. To assist with understanding what this means for employers facing antitrust claims, Duane Morris has released the Antitrust Class Action Review for 2025, which analyzes the key rulings and litigation developments from 2024, and the significant trends that are apt to impact these types of actions in 2025. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.

Jerry: I’ve always thought and viewed class certification decisions as the Holy Grail in these sorts of cases. Daniel, what in your mind are the takeaways from the publication with regard to litigation in this space over the past year?

Daniel: Sure. So, one of the most notable shifts we’ve seen is the rise in cases involving pricing algorithms, information sharing, and data management. This trend really mirrors the technological evolution within organizations. So as businesses rely more heavily on automated pricing and complex data systems, plaintiffs’ lawyers are adapting their strategies to challenge those tools under antitrust laws.

Jerry: Sean, in your experience, how are these new strategies playing out in the courts? How did the plaintiffs do this past year?

Sean: Great question, Jerry. We saw a major development in the Gibson v. Cendyn Group case in the Ninth Circuit, where the Department of Justice actually stepped in. They argued that certain types of information sharing can be illegal even if there’s no explicit agreement on prices. That’s a pretty aggressive position. And while it’s yet to be clear if courts will accept it, I’d expect that stance to influence the plaintiffs’ bar going forward. And despite the change in administration, we’ve seen consistent positions from both DOJ and FTC with respect to information sharing going forward in 2025.

Jerry: Very interesting in terms of how that theory evolved. Daniel, what about labor market cases that in the year before had been very, very hot – how did those turn out over the last 12 months?

Daniel: So, in contrast to recent years, 2024 actually saw fewer challenges related to labor market restraints. And one possible reason is the DOJ’s limited success in prosecuting those cases which might be giving plaintiffs pause before jumping into that area.

Jerry: Let’s pivot to the issue of class certification, that Holy Grail of the plaintiffs’ bar. Sean, I understand there was quite a bit of activity this year in the pharmaceutical space.

Sean: Yes, absolutely, Jerry. Once again, Big Pharma and life sciences remained a core focus for antitrust class actions. A big factor is the structure of the pharmaceutical industry – when the supply chain and harm mechanism are relatively straightforward, courts are more likely to certify a class. For example, In Re Lipitor and In Re Actos, both cases from mid-to-late 2024, we saw the courts granting class certification based on those clearer market structures.

Jerry: Daniel, one of the things we’ve seen in other spaces is a huge battle over predominance, and how defendants latch onto that particular defense to sometimes prevent class certification. How did that play out in this space over the past 12 months?

Daniel: Yeah. So, Jerry, that’s still a major battleground courts are doing deep dives into whether plaintiffs can provide class wide evidence that shows that common issues predominate. So it’s not just a box-checking exercises – judges are really scrutinizing the proposed evidence, and that was a recurring theme in 2024.

Jerry: How about on the issue of numerosity under Rule 23(a)(1) in terms of how that’s played out in the antitrust sector?

Daniel: Sure. So you know, the numerosity requirement provides that plaintiffs must show that it’s impractical to join all members individually. And in antitrust cases, courts tend to say that fewer than 20 members likely won’t cut it, but over 40 usually will. So, for classes in that 20-to-40 range, courts look at other factors. A great example from this past year is the In Re EpiPen Direct Purchaser Litigation. And in that case, even where there was a proposed class of over 40 members, all of which, whom you know, had pretty large claims, the court said that joinder was not impractical, and therefore denied certification, so it shows how fact-specific the analysis can be.

Jerry: We, of course, studied class certification rates across the board in all spaces of litigation, and the plaintiffs’ bar did pretty well, and certified cases at a range of about 65 to 66% across the board. How did things go for the plaintiffs’ bar in the antitrust sector?

Sean: In 2024, Jerry, it was pretty consistent with respect to antitrust cases where class certification was granted in 68% of those actions, a total of 15 out of 22 motions from the past year. So, while a majority of plaintiffs were successful, there’s still a significant portion facing uphill battles, especially where the evidence class structure and damages and market dynamics are quite complex.

Jerry: That’s an interesting look at inside baseball statistics. I’ve always thought that the business model of the plaintiffs’ bar in this area is identify and file the case, certify the case, and then monetize the case. In terms of the study of class action settlements in the antitrust area, how did the plaintiffs’ bar do in 2024?

Sean: Plaintiffs were hugely successful in 2024, although not quite as successful as 2023. The top 10 antitrust class action settlements totaled just over $8.42 billion in 2024, compared to $11.74 billion in 2023, which had been a nearly threefold increase over the 2022 amount.

Jerry: Those are certainly eye-popping numbers in terms of settlements. My sense is 2025 is apt to see even bigger, if not consistent numbers, in terms of those top 10 antitrust settlements. Well, thank you, Sean and Daniel, for being here today, and thank you listeners for tuning into this week’s Class Action Weekly Wire.

Daniel: Thanks, Jerry. Glad to be on. And thank you, listeners.

Sean: Thanks so much, everyone.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Shireen Wetmore and special counsel Shannon Noelle with their discussion of the key trends analyzed in the 2025 edition of the FCRA Class Action Review, including notable Third and Eleventh Circuit rulings shaping related litigation in 2025.

Bookmark or download the FCRA Class Action Review – 2025, which is fully searchable and viewable from any device.

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

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner with Duane Morris, and joining me today are Shireen Wetmore and Shannon Noelle. Thanks so much for being here on our podcast.

Shireen Wetmore: Thanks, Jerry, happy to be part of the podcast.

Shannon Noelle: Thanks for having me, Jerry.

Jerry: Today on the podcast we’re discussing the first-ever publication of the Duane Morris Fair Credit Reporting Act, or FCRA, Class Action Review. Listeners can find our new e-book publication on our blog, the Duane Morris Class Action Defense Blog. Shireen, can you tell our listeners about this new publication and desk reference?

Shireen: Absolutely, Jerry. This Review is brand new, and it dives deep into the world of consumer protection laws. Specifically, the Fair Credit Reporting Act (FCRA), the Fair and Accurate Credit Transactions Act (FACTA or the FACT Act), which amends FCRA, and the Fair Debt Collection Practices Act (FDCPA). A lot of alphabet soup here. These statutes have long been fodder for significant litigation, particularly for class actions. So, Duane Morris created this Review to analyze the key rulings and developments in these areas in 2024 and the significant legal decisions and trends that will be impacting this type of class action litigation for 2025. We hope that companies will benefit from this resource in their compliance with these evolving laws and standards.

Jerry: Great. Let’s start a little bit with the basics. The FCRA, as enacted by Congress, aims to ensure that consumer reporting agencies act responsibly and fairly, but at the same time it’s been an engine for class action litigation. Shannon, can you give us a quick overview of what our listeners need to know about the FCRA?

Shannon: Absolutely. The FCRA is focused on ensuring that consumer reporting agencies, CRAs, maintain accuracy, fairness, and respect for consumers’ privacy rights. It mandates that CRAs follow reasonable procedures to ensure that consumer reports are as accurate as possible. The law also requires employers to disclose when they’re obtaining a consumer report on an applicant for a job and to follow specific procedures if they decide to take adverse action based on the report. FCRA violations often come down to technicalities – things like failure to provide proper disclosures or obtaining consent incorrectly – and the penalties can be significant, ranging from $100 to $1,000 per violation, with punitive damages up to $2,500. If the violation is deemed willful, because of the way the law is structured, it’s relatively easy for plaintiffs to bring class action lawsuits, especially when there are clear procedural missteps that affect many people. Even if actual damages aren’t proven, these technical violations can still lead to successful lawsuits.

Jerry: Thank you. By contrast, Shireen, what about the FACTA? What are the issues in that particular space of litigation?

Shireen: So, the FACTA amended the FCRA, and it was aimed at enhancing consumer protections. It requires consumer reporting agencies, just as Shannon mentioned, to present information in a clear, more understandable manner. And the FACTA really emphasizes the need for better protections against identity theft under the FCRA and the FACT Act. There are significant penalties, nuanced protections that can lead to very large lawsuits with what may seem like only informational injuries. However, there have been some significant Supreme Court rulings over the years that have limited the scope of these lawsuits, and especially when it comes to proving actual harm or injury in fact.

Jerry: Thanks, and then let’s address the last one in Chapter 12 – the alphabet soup statutes – the FDCPA. The statute governs debt collection practices, and while it doesn’t address credit reporting directly, it’s closely related, because debt collectors obviously rely upon credit reports when they pursue collection. The FDCPA regulates how they can communicate with individuals, the information they must disclose, and their conduct during the collection process. In essence, it’s a companion statute that protects consumers in the broader context of credit and debt. What were the notable trends under these statutes over the last 12 months?

Shannon: One major trend we’ve seen in 2024 is a reduction in class certification success rates. Courts granted class certification in only 38% of FCRA, FACTA, and FDCPA cases, which is down from 75% in 2023. This could be partly due to the 2021 TransUnion decision and the increasing complexity of FCRA violations. Employers and consumer reporting agencies are now more careful about complying with technical requirements and plaintiffs are facing higher hurdles improving harm.

Shireen: Yeah, and another thing we’re seeing is the rise of state level laws that track the FCRA, but they impose even stricter standards. I’m sitting here in California – we definitely have some states like California, New York, and Texas, they have their own consumer credit reporting laws – and companies need to stay on top of both the federal and the state regulations to avoid potentially very significant liability.

Jerry: As our clients see in many spaces, there’s quite a patchwork quilt of laws and the legal environment is under constant change and flux. Were there important rulings in this space in 2024 that our listeners need to keep in mind?

Shannon: There certainly were. The Third Circuit issued a significant ruling in favor of the defendant in Barclift, et al. v. Keystone Credit Services, LLC. The defendant was a debt collector there, and engaged RevSpring, a third-party vendor, to print and mail debt collection notices to individuals, including the plaintiff. The plaintiff alleged defendant shared her personal information with RevSpring without her consent in violation of the FDCPA. The district court dismissed the plaintiff’s allegations without prejudice, ruling that she lacked standing because her alleged injuries were not sufficiently concrete, and thus she failed to allege a concrete injury under Article III standing requirements. On appeal, the Third Circuit affirmed the district court’s ruling. The Third Circuit determined that the plaintiff’s intangible harms must have a close relationship to alleged recognized harms for standing purposes, and the Third Circuit concluded that the plaintiff failed to establish standing because she could not show a close relationship between the harm she alleged, which was disclosure of personal information to the mailing vendor, and harms traditionally recognized by disclosure of personal information, including humiliation or embarrassment due to the public disclosure of sensitive information, and the Third Circuit opined that harm from internal disclosures such as that alleged by the plaintiff did not align with harms traditionally recognized in privacy torts that depend on public disclosure, unless there’s a sufficient likelihood of external dissemination.

Jerry: That’s a really interesting ruling, and certainly shows the range and kinds of information that are protected and what goes beyond just the mere scope of the information. Are there any other appellate rulings, Shireen, that you think our listeners ought to keep uppermost in mind for the coming year?

Shireen: Yeah, the Eleventh Circuit ruled on standing issues in Santos, et al. v.Healthcare Revenue Recovery Group, LLC. You know, these standing issues have been getting ironed out, up and down to the Supremes and back, quite a bit over the last 10 or so years. Here, the plaintiffs allege that the defendant provided inaccurate credit reports. The district court initially denied class certification, reasoning that consumers seeking statutory damages for willful FCRA violations needed to prove actual damages. The plaintiffs argued that they could recover statutory damages without proving actual damages and the case focused on interpreting 15 U.S.C. § 1681n(a)(1)(A), which allows consumers to seek statutory damages ranging from again $100 to $1,000 for willful violations. And on appeal, the Eleventh Circuit clarified that under statute, consumers do not need to prove actual damages to obtain statutory damages. The court noted that the statute distinguishes between the actual damages required under one provision and the damages available under the second, which does not require proof. So, the Eleventh Circuit’s interpretation aligned with decisions from other circuits, and furthermore, the court ruled that the district court’s denial of class certification was based on incorrect interpretation of the damages provision, and remanded the case for further proceedings. So, we’ll be keeping an eye on that as well.

Jerry: In terms of settlement dollars overall in 2024, how successful was the plaintiffs’ bar in monetizing their class claims.

Shireen: So, there was actually a big drop in the numbers recovered in the top 10 cases in 2024 over 2023. In2024, the top 10 FCRA FACT Act, and FDCPA. Settlements totaled $42.43 million, and in 2023, that was a $100 million. So, more than double. Alittle bit surprising, but we’ll look to see what happens in 2025.

Jerry: Yeah, my prediction is in 2025 – my sense is those numbers are going to double, if not triple. and that’ll be an area that we’ll be tracking with interest in the Duane Morris Class Action Review for 2026. Well, thank you both for being here and for sharing your thought leadership with respect to class action litigation in this space. Listeners, please stop by our blog for a free copy of the FCRA Class Action Review e-book.

Shannon: Thanks so much for the opportunity, Jerry.

Shireen: Thanks, Jerry. Thanks, listeners.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Katelynn Gray and associate Ryan Garippo with their discussion of the key trends analyzed in the 2025 edition of the TCPA Class Action Review, including notable rulings in the Eleventh and Second Circuits shaping related litigation in 2025.

Bookmark or download the TCPA Class Action Review – 2025, which is fully searchable and viewable from any device.

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

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are Katelynn Gray and Ryan Garippo. Welcome to the podcast.

Katelynn Gray: Thanks, Jerry, happy to be a part of the podcast.

Ryan Garippo: Thanks for having me, Jerry

Jerry: Today on the podcast we’re discussing the desk reference and publication of the Duane Morris Class Action Defense Group that was launched on the Telephone Consumer Protection Act, known as the TCPA. It’s a guide for corporate counsel on the ins and outs of the statute and what’s happened over the past year, and what we see coming in the future. Katelynn, can you tell our listeners about this publication?

Katelynn: Absolutely, Jerry. So, the TCPA has been a long focus of litigation, particularly for class actions. The class action team of Duane Morris released the second edition of the TCPA Class Action Review earlier this week. This publication analyzes the key TCPA-related rulings and developments in 2024, and the significant legal decisions and trends impacting this type of class actions for 2025. We hope that companies will benefit from this resource in their compliance with these ever-evolving laws and standards. As someone that’s worked on this chapter for the last couple of years, I can tell you there’s been a lot of updates.

Jerry: Interestingly, in 2024 I would characterize what occurred as a mixed bag – victories for plaintiffs, victories for defendants. Ryan, how are the classes treated by federal courts in terms of certification rulings over the past year?

Ryan: There are wins on both sides, Jerry, but defendants came out way ahead in terms of getting classes certified – courts granted motions for class certification only 37% of the time, they denied class certification motions 63% of the time. So that’s way lower that last year when plaintiffs’ bar was much more successful in obtaining class certification, with courts granting 70% of certifications, so we saw a big swing from last year to this.

Jerry: That’s quite an interesting turn of events from 2023 to 2024. Katelynn, were there any notable appellate court rulings that deciphered the contours of TCPA claims?

Katelynn: There was, actually. So, the Eleventh Circuit issued 123-page opinion that offered a treasure trove of insights regarding the need for constant vigilance when it comes to TCPA compliance – particularly for employers involved in these types of class actions. This was in a case that had been ongoing and that we discussed last year within the framework of Article III standing in the TCPA class actions. The case was called Drazen, et al. v. Pinto. In the most recent ruling, the Eleventh Circuit vacated the district court’s final approval of a settlement of a class action alleging GoDaddy.com, Inc. violated the TCPA by sending unwanted marketing texts and phone calls through a prohibited automatic telephone dialing system. The Eleventh Circuit held the district court abused its discretion by approving the class-wide settlement, which would have provided up to $35 million to pay in class members’ claims and up to $10.5 million to class counsel and attorneys’ fees. The Eleventh Circuit concluded that the district court inappropriately certified the class and shouldn’t have approved the proposed settlement agreement and granted class counsel’s motion for attorneys’ fees. The Eleventh Circuit held that the district court overlooked evidence of collusion between class counsel and GoDaddy’s attorneys, treated the settlement as a common fund instead of a claims-made resolution, and improperly calculated attorneys’ fees after erroneously concluding it was not a coupon settlement. In this instance, the Eleventh Circuit remanded the case back to the district court for further proceedings.

Jerry: Gosh, at 123 pages that’s a virtual war and peace novel for a federal appellate court, and certainly a key takeaway for corporate counsel to realize that even multimillion-dollar TCPA class action settlements can be vaporized on appeal if the i’s are not dotted and the t’s are not crossed in the appropriate way as required by Rule 23. Ryan, I know there was another significant ruling by the Second Circuit in this space last year in the Soliman case. Can you tell our listeners about that decision?

Ryan: Yeah, the ruling was a win for companies that have pre-existing lists of numbers that they use to make calls. In Soliman, the plaintiff filed a class action alleging that the defendant violated the TCPA by sending unsolicited text messages, using an ATDS and an artificial or pre-recorded voice. The plaintiff asserted the defendant had sent several automated marketing text messages to her cell phone using a system that employed a pre-existing list of telephone numbers. Although the plaintiff had previously consented to receive such messages from the defendant, she opted out by texting “STOP.” The plaintiff then contended that she subsequently received another automated message. So, the district court ruled that the defendant’s system did not violate the TCPA because it used a pre-existing list of numbers rather than generating the numbers randomly or sequentially, as the Supreme Court found in Duguid. So, the district court also found that the TCPA’s prohibition against artificial or pre-recorded voice messages does not apply to text messages. The Second Circuit agreed with the District Court. It held that the defendant’s text messaging system did not violate the TCPA and explained that the TCPA prohibits systems that generate random numbers, not those that use pre-existing lists, and that these text messages are not covered by the prohibition on artificial or pre-reported voices. The Second Circuit therefore affirmed the dismissal of the claims.

Jerry: I know this is a hotly contested issue in the circuit, so I would predict in 2025 we’re going to see more rulings on this issue from the other circuits. Maybe even a circuit split that finds its way to the U.S. Supreme Court. I’ve always thought the mantra of the plaintiffs’ bar is file the case, certify the case, monetize the case, and to knock down significant settlements. How did the plaintiffs’ bar do in 2024 when it came to this space in terms of monetizing their cases and pulling down class action settlements?

Katelynn: They did very well in securing high-dollar settlements. In 2024, the top 10 TCPA class actions totaled $84.73 million, which was actually down from the 2023 total of $103 million.

Jerry: That’s a lot of money for a few errant phone calls, and certainly we’ll be tracking these settlements in the coming year in our Duane Morris Class Action Review. Well, thank you both for joining us today and lending your expertise and describing our new desk reference, the TCPA Class Action Review. Thanks so much for being here.

Ryan: Thanks so much for the opportunity, Jerry. Appreciate it.

Katelynn: Thanks for having us, Jerry. Thank you to all the listeners, we appreciate your time.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and senior associates Anne Gruner and Betty Luu with their discussion of the key trends analyzed in the 2025 edition of the Products Liability & Mass Torts Class Action Review, including notable developments in the areas of opioid and PFAS litigation in the products liability and mass tort context.

Bookmark or download the Products Liability & Mass Torts Class Action Review – 2025, which is fully searchable and viewable from any device.

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

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Anne and Betty – and Betty, in this instance who is joining us for the first time – thanks for being here in our podcast. This is Episode 94 of the Class Action Weekly Wire, and we’re excited to have you here while we deliver noteworthy class action content to our loyal blog listeners.

Anne Gruner: Thank you, Jerry, happy to be here and happy to be a part of this podcast.

Betty Luu: Thanks for having me, Jerry.

Jerry: So, today we’re discussing the publication of the Duane Morris Products Liability & Mass Torts Class Action Review, which we published recently on the Duane Morris Class Action Defense Blog. Anne, can you tell our listeners a bit about this desk reference?

Anne: Yes, absolutely, Jerry. Thanks. So, the Duane Morris Products Liability & Mass Torts Class Action Review for 2025 analyzes the key rulings and developments in these areas for 2024, and then also the significant legal decisions and trends impacting this type of class action litigation looking forward for 2025. We hope that companies will benefit from this resource in their compliance with the evolving laws and standards in this area.

Jerry: So, as a general rule, products liability litigation, I think, can be categorized into two types of principal claims. First are products liability class actions alleging that a product itself causes injuries to an individual or group of people in the class, and these are typically physical injury claims, like someone being harmed by an allegedly defective product. The second category involves mass tort claims that are typically an aggregation of many individual lawsuits that are managed by a judge in an MDL that feels very much like a class action. Betty, in 2024, how did the plaintiffs’ bar do in certifying products liability and mass tort class actions?

Betty: In 2024, plaintiffs had a mixed record with class certification in product liability and mass tort actions. Of the motions for class certification, 50% were granted and 50% were denied. It’s always a balancing act in these types of cases. The unique facts of each case really influence the outcome. For example, labeling-related cases might fare better for certification, because everyone involved often has the same injury – say, a health condition caused by undisclosed ingredients in a product. However, even in these cases, the individual’s medical history can play a role.

Jerry: That’s interesting. And that’s a really big change from the year before, because both in 2022 and in 2023, courts were granting motions for class certification at a rate close to 70%. And I’ve always thought the mantra of the plaintiffs’ bar is file the case, certify it, and then monetize it. So, a diminished class certification conversion rate for plaintiffs is very telling for defendants in these sorts of cases.

Let’s shift gears a little bit – one of the biggest examples of mass tort litigation in recent years has been opioid litigation. What happened in that space over the last 12 months?

Anne: Well, sure, Jerry, this is a very interesting area, as you pointed out. So, the opioid litigation is massive, and it really is an ongoing saga. It’s been consolidated since 2017, and it involves thousands of lawsuits filed by governments and individuals against manufacturers, distributors, and pharmacies. The central issue is the manufacturers allegedly downplaying the addictive nature of the opioids contributing to a public health crisis. They’ve led to billions of dollars in settlements, though some of those are still being contested. The Sixth Circuit currently, for example, is deciding whether to enforce a $650 million judgment against the pharmacies in two different Ohio counties, and has asked Ohio Supreme Court to weigh in and determine whether state law permits the public nuisance claim – a type of claim that’s asserted to address public problems such as chemical spills.

Betty: And of course, the bankruptcy proceedings for Purdue Pharma have also been a major part of ongoing opioid litigation. The U.S. Supreme Court ruled in 2024 that Purdue’s bankruptcy plan couldn’t shield the Sackler family, the owners of Purdue, from future litigation. The Sacklers were accused of personally profiting from Purdue’s aggressive marketing strategies that helped fuel the opioid epidemic. However, as part of the bankruptcy settlement, the Sacklers were seeking protection from further litigation, which would shield them from being held personally liable for the company’s role in the opioid crisis. The Supreme Court concluded that the bankruptcy code does not authorize a release or injunction as part of a Chapter 11 reorganization plan that seeks to discharge claims against a non-debtor, such as the Sacklers, without the consent of the affected claimants.

Jerry: That’s a huge, significant decision, and certainly shows the complexity of mass torts superimposed in the class action space, and how they intersect with many issues involving bankruptcy, public health issues, and settlements. As I understand it, our clients are also facing PFAS litigation, which is another huge, growing area of potential risk and liability.

Anne: Yes, absolutely. So, PFAS, or “forever chemicals” as they’re more commonly known, have become a major issue due to their environmental impact. These chemicals, which are found in products like firefighting foam, have contaminated water supplies leading to health concerns. Over 300 different lawsuits have been filed, with many consolidated into an MDL in South Carolina.

Betty: The EPA has started setting limits on PFAS in drinking water, and several states have enacted new regulations. In April 2024, the EPA finalized the ruling setting the first-ever limits for PFAS in drinking water, and is already subject to multiple legal challenges. In October of 2024, the White House Office of Science and Technology Policy said in a report that it will continue to look for new technologies to remove so-called forever chemicals from the environment in five s  tates and find safe alternatives for the substances.

Jerry: Well, certainly the plaintiffs’ bar on the class action side is attracted by the potential money in these areas and our Review appropriately focuses on the leading class action settlements in this space over the past 12 months. How did plaintiffs do in terms of a scorecard of garnering large settlements in this area over the past 12 months?

Anne: Well, Jerry, plaintiffs did very well in securing high dollar settlements in 2024 – the top 10 totaled $23.396 billion. That was just a slight drop from 2023, when the top 10 settlements in the space totaled $25.83 billion. One of the top settlements of the year was for $10.3 billion to resolve claims with 3M by utilities that maintain it is liable for damage they have, and will incur, due to its signature PFAS that were used for decades in specialized fire suppressants and that were sprayed directly into the environment and reached drinking water.

Jerry: Wow, well, I guess that’s a sign of the times. We used to talk about $1 million settlements being large, and in this space, now we’re talking about $1 billion settlements. Well, thanks, Anne, and thanks, Betty, for being here today and for lending your thought leadership for our loyal listeners who tuned in to hear about our Products Liability & Mass Torts Class Action Review. Thanks so much for being here.

Anne: Absolutely. Thank you, Jerry, and thank you to all the listeners.

Betty: Thank you, Jerry, and thanks to all for tuning in to the Weekly Wire.

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman, senior associate Alessandra Mungioli, and associate Ryan Garippo with their discussion of the key trends analyzed in the 2025 edition of the Consumer Fraud Class Action Review.

Bookmark or download the Consumer Fraud Class Action Review e-book here, which is fully searchable and accessible from any device.

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

Episode Transcript

Jerry Maatman: Welcome listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Ryan and Alessandra. Thanks so much for being on the podcast today.

Alessandra Mungioli: Thank you, Jerry, happy to be part of the podcast.

Ryan Garippo: Thanks, Jerry. Glad to be here.

Jerry: So, today we are discussing the recent publication of the second edition of the Duane Morris Consumer Fraud Class Action Review. Listeners can find that book in e-book form on our blog, the Duane Morris Class Action Defense Blog. Alessandra, can you tell our listeners a little bit about the publication and desk reference?

Alessandra: Absolutely, Jerry. Class action litigation in the consumer fraud space remains an area of key focus for skilled class action litigators in the plaintiffs’ bar. As a result, compliance with consumer fraud laws and the myriad of ways that companies, customers, and third parties interact is a corporate imperative. To that end, the class action team here at Duane Morris is pleased to present the Consumer Fraud Class Action Review for 2025. This publication analyzes the key consumer fraud-related rulings and developments from 2024, and the significant legal decisions and trends impacting this type of class action litigation for 2025. We hope that companies will benefit from this resource in their compliance with these ever-evolving laws and standards.

Jerry: For those using a scorecard, in 2024 there was a mixed bag of results which led to major victories for both plaintiffs and defendants in this space. Ryan, what were some of the key takeaways from the publication in regard to litigation in this particular area?

Ryan: Well, Jerry, like many areas, obtaining class certification is still one of the most effective procedural tools to vindicate the rights of consumers. In 2024, plaintiffs were successful in receiving class certification in 57% of the motions that were filed, which was down from the number in 2023 when courts granted 66% of those motions.

Jerry: Well, that overall number and the tracking of the statistics is certainly telling and interesting. What would you anticipate 2025 will bring for companies that are facing consumer fraud class actions?

Ryan: Well, as the class action landscape continues to develop so, too, are the playbooks for the plaintiffs and defense bars. Counsel on both sides are becoming more sophisticated and creative in their approaches to prosecuting and defending class actions. There’s a wide variety of conducts that gives rise to consumer fraud class actions in every industry susceptible, so at least in 2024, consumer fraud class actions ran the gamut of false advertising and false labeling claims from everything to cannabis to nuts. So, we anticipate this is continue going to continue to be the case in 2025.

Jerry: Well, the plaintiffs’ bar is nothing if not innovative. I had a data breach incident that came across my desk last night that involved allegations under the Illinois Consumer Fraud Act. So, the plaintiffs’ bar is pushing the envelope for sure in this particular space. In terms of companies that are trying to comply with consumer fraud statutes, the Review also talks about the top consumer fraud settlements in 2024. How did plaintiffs do in securing settlement funds this past year?

Alessandra: They did very well in securing high dollar settlements. In 2024, the top 10 consumer fraud settlements totaled a staggering $2.4 billion. However, although this is a huge dollar amount, it was a significant difference since 2023, when the top 10 consumer fraud class action settlements totaled $3.29 billion dollars. But really, this just shows the massive amount of money involved in some of these class actions where thousands to millions of consumers could potentially be involved.

Jerry: Well, gosh, the stakes are quite high then, and we’ll continue to track those settlement numbers in 2025. If you just look at your iPhone and scroll through things like Twitter, you see plaintiffs’ bar advertising and then publicizing these big settlements. So, it may well be this year is another record-breaking year when it comes to settlement amounts. Well, thanks so much for being here today, and thank you to our loyal listeners for tuning in. Please stop by our blog and download a free copy of the Consumer Fraud Class Action Review e-book.

Ryan: Thanks, Jerry, for having me, and thanks to all the listeners.

Alessandra: Thanks, so much, everyone.

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.

Bookmark or download the Privacy Class Action Review e-book here, which is fully searchable and accessible from any device.

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

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.