Category: Duane Morris Class Action Review

Duane Morris Takeaway: Duane Morris proudly invites you to the Duane Morris Class Action Review – 2026 Book Launch Event on Thursday, February 5, 2026, from 3:30 p.m. to 6:00 p.m. at the Northwestern Pritzker School of Law.  Click here to register and attend! In-person and virtual options available. 

About the Program

Featuring authors Gerald L. Maatman, Jr. and Jennifer A. Riley with Hon. Wayne R. Andersen (Ret.), JAMS Neutral and former U.S. District Judge for the Northern District of Illinois, in a discussion of the key class action trends and rulings in 2025 and what companies can expect in 2026.

Speakers

Gerald L. Maatman, Jr.

Jennifer A. Riley

Hon. Wayne R. Andersen (Ret.)

Matthew A. Taylor

Thomas G. Servodidio

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

Duane Morris Takeaways:  On October 15, 2025, in Eli Lilly & Co., et. al. v. Richards, et al., No. 25-476 (U.S. Oct. 17, 2025), Eli Lilly & Co. filed a Petition For Writ Of Certiorari after a decision by the U.S. Court of Appeals for the Seventh Circuit which created a four-way circuit split as to the proper interpretation of 29 U.S.C. § 216(b).  This petition drew briefing from several amici curiae, including the U.S. Chamber of Commerce and the CHRO Association.

Similarly, when the U.S. Court of Appeals for the Ninth Circuit decision widened that circuit split to include five different methodical approaches in Cracker Barrel Old Country Store, Inc. v. Andrew Harrington, et al., No. 25-559 (U.S. Nov. 5, 2025), Cracker Barrel also filed a Petition For A Writ of Certiorari.

Significant for readers of this blog, both petitioners and amici also cited the Duane Morris Class Action Review as the authoritative source on FLSA certification statistics and the widening circuit split regarding when it is appropriate to send notice to would-be plaintiffs, under 29 U.S.C. § 216(b) in a Fair Labor Standards Act (“FLSA”) collective action.

In its review of our practice group’s resource, Employment Practices Liability Consultant Magazine (“EPLiC”) said, “The Duane Morris Class Action Review is ‘the Bible’ on class action litigation and an essential desk reference for business executives, corporate counsel, and human resources professionals.” EPLiC continued, “The review is a must-have resource for in-depth analysis of class actions in general and workplace litigation in particular.

With the submission of our analysis to the U.S. Supreme Court, we are humbled and proud to be cited as the authoritative source in the class action space.

The Briefing In Richards And Harrington

Both Cracker Barrel and Eli Lilly correctly argued in their petitions that “the circuits are split five ways in how to interpret” Section 216(b) and the case law in this area “is in total disarray.”  Both petitions ask the U.S. Supreme Court to help organize this “disarray.”  As such, a brief guide through these disjointed methodological approaches is included below.

First, there is the familiar and lenient two-step standard in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), which was expressly adopted by the U.S. Court of Appeals for the Second Circuit, Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 515 (2d Cir. 2020), and “acquiesced to . . . without express adoption” by the First, Third, Tenth, and Eleventh Circuits.  Kwoka v. Enterprise Rent-A-Car Company of Boston, LLC, 141 F.4th 10, 22 (1st. Cir. 2025); Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 534 (3d Cir. 2012); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)

Under the Lusardi approach, at step one, a plaintiff moves for conditional certification, relying solely on his or her allegations, and not competing evidence submitted by the employer. If the employee’s motion is granted, would-be plaintiffs receive notice of the lawsuit and then have the ability to opt-in as party plaintiffs to the case and participate in discovery.  At the close of discovery, the employer can then move to decertify the conditionally certified collective action, and prove the employees are not similarly situated with the benefit of discovery and evidence.

Second, in Campbell v. City of Los Angeles, 903 F.3d 1090, 1114 (9th Cir. 2018),the Ninth Circuit adopted a variation of the Lusardi two-step approach but also required the plaintiff to show he or she is similarly situated to his or her fellow employees in “some material aspect of their litigation” and not just similar in some sort of irrelevant way, but the plaintiff may rely on mere allegations to make that showing.

Third, the Fifth Circuit in Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430, 443 (5th Cir. 2021), rejected Lusardi’s two-step approach outright, and required its district courts to “rigorously enforce” the FLSA’s similarity requirement at the outset of the litigation in a one-step approach.  “[T]he district court needs to consider all of the available evidence” at the time the motion is filed and decide whether the plaintiff has “met [his or her] burden of establishing similarity.”  Id. at 442-43.

Fourth, the Sixth Circuit in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023), adopted a comparable standard to Swales requiring the employee to show a “strong likelihood” that others are similarly situated to him or her before the district court can send notice, but leaving open the possibility of the employer filing a motion for decertification down the line. Clark, 68 F.4th at 1011.

Fifth, the Seventh Circuit in Richards, et al. v. Eli Lilly & Co, et al., 149 F.4th 901 (7th Cir. 2025), rejected the Lusardi framework but declined to go as far as Clark or Swales.  Instead, the Seventh Circuit approach requires “a plaintiff must first make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated” to secure notice and an employer “must be permitted to submit rebuttal evidence” for the court to consider.  Richards, 149 F.4th at 913.  But, there is not a bright line rule as to whether the court should decide the similarly situated question in a one or two step approach as the analysis is not an “all-or-nothing determination.”  Id. at 913-914.

Sixth, as correctly noted by counsel for Cracker Barrel, the U.S. Courts of Appeal for the D.C., Fourth, and Eighth Circuits have not yet opined on the proper interpretive method, leaving their district courts free to choose among the available options.

Duane Morris Class Action Review Citations

It should go without saying that these issues are complicated, and employers are looking to experienced practitioners to help them navigate this procedural morass.  For that reason, both petitioners and the amici curiae turned to the Duane Morris Class Action Review, and its authors, as the authoritative source in support of their petitions.

The first citation is found in Eli Lilly’s petition for writ of certiorari, which cites Avalon Zoppo, Circuit Split Widens on Judicial Approach to Sending FLSA Collective Action Notices, Nat. L. J. (Aug. 11, 2025), regarding the proper interpretation of Richards, following the Seventh Circuit’s decision in that case.  In that article, Gerald L. Maatman, Jr., Chair of the Duane Morris Class Action Defense Group, stated “[t]he [Seventh Circuit’s] holding is going to reverberate and have a huge impact on wage and hour litigation throughout the United States.”

The second citation can be found in Cracker Barrel’s petition, following the Ninth Circuit’s holding in Harrington, which cites directly to the Duane Morris Class Action Review for varying conditional certification rates under this patchwork quilt of legal standards. Indeed, in the 2024 and 2025 editions of the Duane Morris Class Action Review, our analysis showed that:  (1) the federal circuit courts that follow or acquiesce to Lusardi grant conditional certification at rates of 84%; (2) the Ninth Circuit grants conditional certification at rates of approximately 71% under the lenient-plus approach; and (3) the remaining Fifth, Sixth, and Seventh Circuits, with varied stricter standards, granted certification at rates approximating 67%.  The petition further noted our finding that only approximately 10% of conditionally certified FLSA collective actions reach the decertification stage.

The third citation is found in the U.S. Chamber of Commerce and the CHRO Association’s amicus brief which relies on the Duane Morris Class Action Review for the proposition that “motions for conditional certification . . . are granted in a large majority of [FLSA] cases.”  Looking at the statistics, the amici highlight “[i]n 2024, district courts granted 80% of motions seeking court-ordered notice” with “Plaintiffs enjoy[ing] similar success in past years”

These U.S. Supreme Court practitioners and defense counsel are not alone as others refer to the Duane Morris Class Action Review as “the Bible” on class action litigation.  It is also relied on by some of the world’s largest plaintiffs’ firms and federal judges, see, e.g., Laverenz v. Pioneer Metal Finishing, LLC, 746 F. Supp. 3d 602, 614 (E.D. Wis. 2024).  The Duane Morris Class Action Review is the “one stop shop” and authoritative source on collective action certification rates, collective action trends and analysis, and the implications, pressures, and contours that parties face when engaged in FLSA collective action litigation.

Implications For Employers

Although the petitioners are still briefing their petitions, it is clear that the myriad approaches adopted by the federal circuit courts are ripe for some clarity from the U.S. Supreme Court, which would hopefully provide a roadmap for district courts to assess collective actions uniformly.

Further, the framework for when and how to send notice under Section 216(b) are not the only issues presented by these petitions.  Eli Lilly expressly invited the U.S. Supreme Court to overturn Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989) and plaintiff-appellee in Harrington would also have the high court decide whether Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., 582 U.S. 255 (2017) applies to collective actions, which we blogged about here.

Because these questions, and many others, remain in flux and unanswered, employers should monitor this blog for updates as it is a trusted source for companies, defense counsel, plaintiffs’ firms, federal judges, and U.S. Supreme Court practitioners alike.  We will be following these petitions as they unfold.

A recent article in The Wall Street Journal profiled the rise in data breach litigation, citing the Duane Morris Class Action Review’s statistics on data breach class action filings. We tracked 1,488 new lawsuits filed in 2024; 1,320 in 2023; and 604 in 2022.

For more insights on trends in the data breach class action space, bookmark or download our Data Breach Class Action Review, follow our weekly podcast, and subscribe to our blog.

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

Duane Morris Takeaways: Corporate defendants saw unprecedented settlement numbers across all areas of class action litigation in 2022, 2023, and 2024, and halfway through 2025, settlement numbers remain robust. The cumulative value of the top ten settlements across all substantive areas of class action litigation hit near record highs in 2024, following the highest levels ever in 2022, and the second highest total in 2023. When the numbers for 2022, 2023, and 2024 are combined, the total signals that corporate defendants have entered a new era of heightened risks and higher stakes in the valuation of class actions.

On an aggregate basis, across all areas of litigation, class actions and government enforcement lawsuits garnered more than $42 billion in 2024, $51.4 billion in settlements in 2023, and a record-setting $66 billion in 2022. When combined, the three-year settlement total eclipses any other three-year period in the history of American jurisprudence.

As a prelude to the Duane Morris Class Action Review – 2026, this blog post reports on our analysis of class action settlements through the first half of 2025. The data shows that for the period of January 1 to June 30, 2025, the current year is on pace with the numbers of the previous three years. As of the end of the first half of 2025, the aggregate settlement total across all areas of class action litigation and government enforcement lawsuits is $21.77 billion (in accounting for the top 5 settlements in the various substantive areas of law). By comparision, in 2024 at the half-way mark, the aggregate settlement total was $22.5 billion.

It is anticipated that these numbers will increase across the board by the end of the year and when measured by the top 10 settlements in each category.

More Billion Dollar Class Action Settlements

At the mid-way point of 2025, there are three settlements over the billion-dollar mark. The 10 individual billion-dollar settlements in 2024 surpassed the number in 2023, and only fell short of the number of billion-dollar settlements in 2022. In 2023, parties resolved nine class actions for $1 billion or more. In 2022, parties resolved 15 class actions for $1 billion or more in settlement dollars. Together with the three thus far in 2025, corporations have seen 37 settlements of one billion dollars or more in three and a half years. This string of settlements marks the most extensive set of billion-dollar class action settlements in the history of the American court system.

Class action settlements totaled $66 billion in 2022, $51.4 billion in 2023, $42 billion in 2024, and $21.77 billion in 2025 so far.

The Scorecard On Leading Class Actions Settlements Halfway Through 2025

The plaintiffs’ class action bar has scored rich settlements thus far in 2025 in virtually every area of class action litigation.

The top 5 class action settlement totals in each practice area. [Click to enlarge]

The following list shows the totals of the top 5 settlements at the mid-year point in 2025 in key areas of class action litigation:

$13.09 Billion – Products liability/mass tort class actions
$4.36 Billion – Antitrust class actions
$2.03 Billion – Securities fraud class actions
$712 Million – Consumer fraud class actions
$300.8 Million – Data breach class actions
$293.75 Million – Privacy class actions
$279.7 Million – Civil rights class actions
$222 Million – Discrimination class actions
$178 Million – ERISA class actions
$86.9 Million – Wage & hour class and collective actions
$77.05 Million – Government enforcement actions
$54.5 Million – Fair Credit Reporting Act class actions
$54.4 Million – Labor class actions
$34.77 Million – TCPA class actions

The high dollar settlements of the past three years suggested that the plaintiffs’ bar would continue to be equally, if not more aggressive, with their case filings and settlement positions. From the 2025 data, it certainly looks to be the case as we end the first half of the year.

The data points in each category are set out in the following charts.

Top Class & Collective Action Litigation Settlements In 2025

Top Antitrust Class Action Settlements In 2025

The top 10 antitrust class action settlements totaled $8.412 billion in 2024, $11.74 billion in 2023, and $3.72 billion in 2022.

1. $2.78 billion – In Re College Athlete NIL Litigation, Case No. 20-CV-3919 (N.D. Cal. June 6, 2025) (final settlement approval granted in a class action requiring the NCAA and its Power Five conference members to pay approximately $2.8 billion in damages, characterized as “back pay,” to compensate student-athletes for the denial of name, image, and likeness (NIL) opportunities under prior NCAA eligibility rules).
2. $630 million – Loop LLC, et al. v. CDK Global LLC, Case No. 24-CV-571 (W.D. Wis. June 10, 2025) (preliminary settlement approval sought in a class action to resolve claims by automotive technology vendors who alleged the company colluded with Reynolds & Reynolds Co. to inflate prices for data integration services).
3. $398 million – Jien, et al. v. Perdue Farms Inc., Case No. 19-CV-2521 (D. Md. June 5, 2025) (final settlement approval granted in a class action to resolve claims by workers alleging the poultry firms violated the Sherman Act by conspiring to drive down their hourly wages and salaries at poultry processing operations).
4. $375 million – Le, et al. v. Zuffa LLC, Case No. 15-CV-1045 and Johnson, et al. v. Zuffa LLC, Case No. 21-CV-1189 (D. Nev. Feb. 6, 2025) (final settlement approval granted to resolve claims in a more than a decade-long class action in which fighters accused UFC of suppressing their wages).
5. $275 million – In Re Generic Pharmaceuticals Pricing Antitrust Litigation, Case No. 16-MD-2724 (E.D. Penn. Feb. 19, 2025) (preliminary settlement approval granted in a class action to resolve claims brought by consumers, insurers and other end payer plaintiffs alleging that drugmaker Sandoz conspired with other companies to fix the price of certain generic drugs).

Top Civil Rights Class Action Settlements In 2024

The top 10 civil rights class action settlements totaled $313.8 million in 2024, $643.15 million in 2023, and $1.31 billion in 2022.

1. $140 million – Nnebe, et al. v. Daus, Case No. 06 Civ. 4991 (S.D.N.Y. May 7, 2025) (preliminary settlement approval granted in a class action to resolve claims from over 19,000 taxi drivers challenging the city’s practice of suspending the license of any driver who was arrested for a felony or misdemeanor).
2. $92.5 million – Onadia, et al. v. City Of New York, Case No. 300940/2010 (N.Y. Oct. 6, 2025) (final settlement approval hearing scheduled in a class action to resolve claims by individuals who were unlawfully detained by the NYC Department of Correction).
3. $28 million – Doe, et al. v. Johnson City, Case No. 23-CV-71 (E.D. Tenn. May 5, 2025) (preliminary settlement approval sought in a class action to resolve claims alleging that Johnson City businessman Sean Williams drugged and raped more than 50 women in his downtown condo in incidents he captured on video).
4. $17 million – Allen, et al. v. Global Tel*Link Corporation d/b/a ViaPath Technologies, Case No. 24-CV-827 (E.D. Va. Feb. 21, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company charged incarcerated individuals and their families excessive fees for communications services).
5. $2.2 million – Vigil, et al. v. 2801 Fifteenth Street NW LLC, Case No. 2022 CA 001459 (D.C. Super. Ct. Mar. 27, 2025) (final settlement approval granted in a class action to resolve claims alleging that the apartment complex charged illegal fees and failed to provide habitable living conditions for tenants).

Top Consumer Fraud Class Action Settlements In 2025

The top 10 consumer fraud class action settlements totaled $2.44 billion in 2024, $3.29 billion in 2023, and $8.596 billion in 2022.

1. $425 million – In Re Capital One 360 Savings Account Interest Rate Litigation, Case No. 24-MD-3111 (E.D. Va. June 16, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company deceptively advertised its 360 Savings accounts as high-interest savings products).
2. $145 million – In Re Xyrem (Sodium Oxybate) Antitrust Litigation, Case No. 20-MD-2966 (N.D. Cal. May 16, 2025) (preliminary settlement approval granted in a class action to resolve claims by direct and indirect Xyrem purchasers, alleging that the company’s actions leading up to, and entering into, patent litigation settlement agreements with generic drug manufacturers who had filed abbreviated new drug applications violated U.S. state and federal antitrust, consumer protection and unfair competition laws).
3. $100 million – Cabrera, et al. v. Google LLC, Case No. 11-CV-1263 (N.D. Cal. Apr. 16, 2025) (preliminary settlement approval granted in a class action to resolve claims from advertisers alleging the defendant overcharged for advertisements through its AdWords service).
4. $25 million – Anderson, et al. v. Boyne USA, Inc., Case No. 21-CV-95 (D. Mont. June 25, 2025) (final settlement approval granted in a class action to resolve claims from condo property owners alleging that the exclusive rental management requirement of condominium-hotel units violated state and federal law).
5. $20 million – Smith, et al. v. Apple, Inc., Case No. 21-CV-9527 (N.D. Cal. May 1, 2025) (final settlement approval granted in a class action to resolve claims alleging a battery swelling defect with early-model Apple Watches in some cases caused watch screens to detach or shatter).

Top Data Breach Class Action Settlements In 2025

The top 10 data breach class action settlements totaled $593.2 million in 2024, $515.75 million in 2023, and $719.21 million in 2022.

1. $177 million – In Re AT&T Inc. Customer Data Security Breach Litigation, Case No. 24-CV-757 (N.D. Tex. June 20, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendant released customer information on the dark web).
2. $45 million – In Re MGM Resorts International Data Breach Litigation, Case No. 20-CV-376 (D. Nev. June 18, 2025) (final settlement approval granted in a class action to resolve claims alleging that MGM failed to protect 37 million customers’ personal information from multiple data breaches in and 2023).
3. $32.8 million – Baker, et al. v. ParkMobile, LLC, Case No. 21-CV-2182 (N.D. Ga. Mar. 13, 2025) (final settlement approval granted in a class action to resolve claims alleging that the company harmed consumers by failing to secure their data and therefore exposed them to identity theft, fraud, and the need to spend time securing related accounts).
4. $25 million – In Re LoanDepot Data Breach Litigation, Case No. 24-CV-136 (C.D. Cal. Jan. 13, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company negligently failed to protect the personal information of nearly 17 million people).
5. $21 million – In Re Arthur J. Gallagher Data Breach Litigation, Case No. 22-CV-137 (N.D. Ill. Feb. 27, 2025) (final settlement approval granted in a class action to resolve claims the company failed to prevent a 2020 data breach that compromised sensitive employee and client information).

Top Discrimination Class Action Settlements In 2025

The top 10 discrimination class action settlements totaled $356.8 million in 2024, $762.2 million in 2023, and $597 million in 2022

1. $70 million – Ferris, et al. v. Wynn Resorts Ltd., Case No. 18-CV-479 (D. Nev. Feb. 3, 2025) (final settlement approval granted to resolve claims in a class action alleging sexual misconduct allegations against founder Steve Wynn).
2. $50 million – Curley, et al. v. Google LLC, Case No. 22-CV-1735 (N.D. Cal. May 8, 2025) (preliminary settlement approval sought in a class action to resolve claims alleging that the company discriminated against Black employees).
3. $43 million – Rasmussen, et al. v. The Walt Disney Co., Case No. 19-STCV-10974 (Cal. Super. Ct. May 13, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendant systematically paid female employees in California less than men for substantially similar jobs; regularly passed women over for promotion; and loaded them with extra work without providing additional pay).
4. $31 million – In Re Norwich Roman Catholic Diocesan Corp., Case No. 21-BK-20687 (D. Conn. Feb. 14, 2025) (settlement entered following Norwich Diocese filing for bankruptcy in July 2021 following lawsuits by survivors of clergy abuse at its Academy at Mount Saint John boarding school).
5. $28 million – Cantu, et al. v. Google LLC, Case No. 21-CV-392049 (Cal. Super. Ct. Mar. 11, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that workers identifying as Latino, Native American, and other ethnicities were paid less than white, Asian, and Asian American employees for substantially similar work).

Top EEOC / Government Enforcement Class Action Settlements In 2025

The top 10 EEOC / government enforcement class action settlements totaled $335.9 million in 2024, $263.58 million in 2023, and $404.5 million in 2022

1. $20.25 million – U.S. Department Of Labor v. UMR, Inc., Case No. 23-CV-513 (W.D. Wis. Mar. 19, 2025) (consent order entered in an enforcement action that challenged adverse benefit determinations regarding hospital emergency services claims and urinary drug screening claims).
2. $20 million – Federal Trade Commission v. Cognosphere LLC, Case No. 25-CV-447 (C.D. Cal. Jan. 17, 2025) (consent order entered in an enforcement action to resolve claims against a video game maker by the FTC alleged that the company misled children and other users about the actual costs of purchases and illegally collected children’s personal information).
3. $16.8 million – In The Matter Of The Investigation Of Letitia James, Attorney General Of The State Of New York Of DoorDash Inc., No. 25-007 (N.Y. Feb. 24, 2025) (assurance order effective following an investigation by the Attorney General for New York that found the company cheated about 63,000 food delivery workers out of their full tips in order to subsidize their pay). 
4. $15 million – U.S. Department Of Labor v. Americare Healthcare Services, LLC, Case No. 21-CV-5076 (S.D. Ohio Jan. 9, 2025) (consent order entered in an enforcement action to resolve claims alleging that the third-party home care agency failed to pay employees overtime compensation).
5. $5 million – In The Matter Of The National Women’s Soccer League, No. 25-002 (N.Y. Feb. 1, 2025) (assurance order effective following an investigation by the attorneys general for New York, Illinois, and the District of Columbia found that the NWSL was “permeated by a culture of inappropriate and abusive behavior, including sexual harassment and harassment and discrimination based upon gender, race, and sexual orientation”).

Top ERISA Class Action Settlements In 2025

The top 10 ERISA class action settlements totaled $413.3 million in 2024, $580.5 million in 2023, and $399.6 million in 2022.

1. $69 million – Snyder, et al. v. UnitedHealth Group, Inc., Case No. 21-CV-1049 (D. Minn. June 12, 2025) (final settlement approval granted in a class action to resolve claims alleging that the defendant engaged in imprudence, disloyalty, prohibited transactions and failure to monitor in violation of the ERISA).
2. $60 million – In Re AME Church Employee Retirement Fund Litigation, Case No. 22-MD-3035 (W.D. Tenn. Mar. 24, 2025) (preliminary settlement approval granted in a class action to resolve claims that the church plan was mismanaged leading to participants losing significant money from the plan in violation of the ERISA).
3. $20.5 million – Baker, et al. v. Save Mart Supermarkets, Case No. 22-CV-4645 (N.D. Cal. June 11, 2025) (preliminary settlement approval granted in a class action alleging that the defendant failed to honor its promise to provide them with lifetime retiree medical benefits).
4. $14.5 million – Burnett, et al. v. Prudent Fiduciary Services, LLC, Case No. 22-CV-270 (D. Del. Jan. 14, 2025) (final settlement approval granted in a pair of class actions to resolve claims alleging that the resolving claims pilots were forced to overpay for their stake in the company through its employee stock ownership plan).
5. $14 million – Coleman, et al. v. Brozen, Case No. 20-CV-1358 (N.D. Tex. Jan. 30, 2025) (preliminary settlement approval granted in a class action brought by participants in All My Sons Moving & Storage’s employee stock ownership plan that when the plan was terminated they received losses).

Top FCRA, FDPCA, And FACTA Class Action Settlements In 2025

The top 10 FCRA, FDPCA, and FACTA class action settlements totaled $42.43 million in 2024, $100.15 million in 2023, and $210.11 million in 2022.

1. $23 million – Norman, Sr., et al. v. TransUnion LLC, Case No. 18-CV-5225 (E.D. Penn. Feb. 24, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendant did not conduct a reasonable investigation of disputes of hard inquiries in credit files, or in the alternative, did not remove the disputed hard inquiries from credit files in violation of the FCRA).
2. $15 million – In The Matter Of Equifax Inc. And Equifax Information Services LLC, File No. 2025-CFPB-0002 (CFPB Jan. 17, 2025) (consent order entered to resolve claims alleging that the company violated the FCRA by failing to thoroughly investigate consumer disputes, putting previously deleted errors back on credit reports, failing to block information that resulted from identity theft, and sharing inaccurate credit scores and data about consumers to lenders).
3. $12.8 million – In The Matter Of American Honda Finance Corp., File No. 2025-CFPB-0003 (CFPB Jan. 17, 2025) (consent order entered to resolve claims alleging that the company violated the FCRA by furnishing false and harmful information that ended up on borrowers’ credit reports, continuing doing so after determining that several types of information were inaccurate, failing to investigate disputes about information it provided to credit reporting companies, and failing to send the results of investigations to those companies and consumers, when required).
4. $2.2 million – Magallon, et al. v. Robert Half International, Inc., Case No. 13-CV-1478 (D. Ore. May 7, 2025) (final settlement approval granted in a class action to resolve claims alleging that the defendant failed to notify applicants when it saw negative “red” or “yellow” flags in consumer reports provided by third-party credit reporting agencies in violation of the FCRA).
5. $1.3 million – Wickham, et al. v. Schenker Inc., Case No. 23-CV-946 (N.D. Cal. Jan. 29, 2025) (settlement agreement reached in a class action to resolve claims alleging that the defendant failed to provide proper disclosure under the FCRA that it was conducting background checks on workers during hiring).

Top FLSA / Wage & Hour Class And Collective Settlements In 2025

The top 10 FLSA / wage & hour class and collective action settlements totaled $614.55 million in 2024, $742.5 million in 2023, and $574.55 million in 2022.

1. $21 million – Wilder, et al. v. The Kroger Co., Case No. 22-CV-681 (S.D. Ohio Feb. 20, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company missed paychecks and made inaccurate deductions to employee wages after it switched payroll systems).
2. $19.9 million – Morgan, et al. v. Rohr Inc., Case No. 20-CV-574 (S.D. Cal. May 1, 2025) (preliminary settlement approval granted in a class and collective action to resolve claims alleging that the company failed to pay proper overtime, minimum wage, and for meal and rest breaks).
3. $16 million –Taylor et al. v. Seattle Children’s Hospital, Case No. 22-2-15300-8 (Wash. Super. Ct. Apr. 21, 2025) (preliminary settlement approval sought in a class action to resolve claims from hospital workers alleging they were denied required meal breaks in violation of Washington wage and hour laws).
4. $15.5 million – Abrishamcar, et al. v. Oracle America Inc., Case No. CIV 535490 (Cal. Super. Ct. Apr. 9, 2025) (preliminary settlement approval sought in a class action to resolve claims from sales employees who alleged that the technology company violated the state’s wage laws for commissioned sales workers).
5. $14.5 million – Hunter, et al. v. Legacy Health, Case No. 18-CV-2219 (D. Or. Jan. 23, 2025) (final settlement approval granted in a class action to resolve claims alleging that nurses were denied overtime compensation).

Top Labor Class Action Settlements In 2025

The top 10 labor class action settlements totaled $237.0 million in 2024 and $129.67 million in 2023.

1. $55 million – Saunders, et al. v. State Of Michigan Unemployment Insurance Agency, Case No. 22-000007-MM (Mich. Ct. Claims May 13, 2025) (final settlement approval granted in a class action to resolve claims between the Michigan Unemployment Insurance Agency and individuals who alleged their benefits were improperly clawed back without notice during the COVID-19 pandemic).
2. $34 million – Borozny, et al. v. RTX Corp., Pratt & Whitney Division, Case No. 21-CV-1657 (D. Conn. May 14, 2025) (final settlement approval granted in a class action to resolve claims alleging that the company engaged in an agreement among contractors not to hire one another’s aerospace engineers).
3. $6 million – Carmen, et al. v. Health Carousel LLC, Case No. 20-CV-313 (S.D. Ohio Mar. 24, 2025) (final settlement approval granted in a class action to resolve claims from about 5,600 workers accusing the defendant of imposing strict employment contracts, not paying overtime compensation, and mandating a gossip ban).
4. $4.95 million – Ruiz, et al. v. Bass Pro Group LLC, Case No. 24-CV-3122 (W.D. Mo. May 29, 2025) (final settlement approval granted in a class action to resolve claims alleging that the retailer unlawfully charged employees who use tobacco an extra $2,000 per year for health insurance without properly telling them how to avoid the charge).
5. $4.75 million – Clarkson, et al. v. v. Alaska Airlines, Inc., Case No. 19-CV-5 (E.D. Wash. Jan. 15, 2025) (final settlement approval granted in a class action to resolve claims that the company failed to provide paid leave for time spent performing military service).

Top Privacy Class Action Settlements In 2025

The top 10 privacy class action settlements totaled $2.01 billion in 2024, $1.32 billion in 2023, and $896.7 million in 2022.

1. $100 million – Cabrera, et al. v. Google LLC, Case No. 11-CV-1263 (N.D. Cal. Apr. 16, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendant overcharged them for advertisements).
2. $95 million – Lopez, et al. v. Apple, Inc., Case No. 19-CV-4577 (N.D. Cal. Feb. 10, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company made unauthorized recordings of Apple device users via its digital assistant Siri).
3. $51.75 million – In Re Clearview AI Inc. Consumer Privacy Litigation, Case No. 21-CV-135 (N.D. Ill. Mar. 20, 2025) (final settlement approval granted in a multidistrict litigation challenging the company’s practice of automatically collecting biometric facial data online in violation of the BIPA).
4. $27.5 million – Brooks, et al. v. Thomson Reuters Corp., Case No. 21-CV-1418 (N.D. Cal. Feb. 21, 2025) (final settlement approval granted in a class action to resolve claims alleging that the company collected and sold publicly available information about consumers without their knowledge or consent in violation of California privacy laws).
5. $19.5 million – Aguilar Auto Repair, et al. v. Wells Fargo Bank NA, Case No. 23-CV-6265 (N.D. Cal. June 3, 2025) (final settlement approval granted in a class action to resolve claims alleging that the defendants recorded phone calls to California businesses without informing the recipients that the calls were being recorded in violation of the California Invasion of Privacy Act (CIPA)).

Top Products Liability And Mass Tort Class Action Settlements In 2025

The top 10 products liability / mass tort class action settlements totaled $23.40 billion in 2024, $25.83 billion in 2023, and $50.32 billion in 2022.

1. $7.4 billion – In Re Purdue Pharma LP, Case No. 19-BK-23649 (N.Y. Bankr. Ct. Jan. 22, 2025) (settlement agreement in principle reached with the Sackler family and their company Purdue Pharma to resolve claims between 15 states alleging that Purdue, under the Sacklers’ leadership, invented, manufactured, and aggressively marketed opioid products for decades, fueling waves of addiction and overdose deaths across the country).
2. $4 billion – Doe 1, et al. v. County Of Los Angeles, Case No. 21-STCV-20949 (Cal. Super. Ct. Apr. 29, 2025) (final settlement approval granted to resolve nearly 7,000 claims of sexual abuse at juvenile detention facilities and foster homes).
3. $750 million – Doe 16, et al. v. Columbia University, Case No. 20 Civ. 1791 (S.D.N.Y. May 5, 2025) (settlement reached to resolve claims from hundreds of patients who say they were sexually abused by a former Columbia University obstetrician-gynecologist). 
4. $651 million – San Miguel Hospital Corp., et al. v. Publix Supermarket, Case No. 23-CV-903 (D.N.M. Mar. 4, 2025) (final settlement approval granted to resolve claims between various Acute Care Hospitals against certain opioid manufacturers and distributors)
5. $285 million – New Jersey Department Of Environmental Protection, et al. v. E.I. DuPont de Nemours And Co., Case No. 19-CV-14766 (D.N.J. May 12, 2025) (settlement reached in an action to resolve environmental claims brought by New Jersey officials over purported PFAS contamination at the Chamber Works manufacturing facility in Salem County as well as future statewide claims).

Top Securities Fraud Class Action Settlements In 2025

The top 10 securities fraud class action settlements totaled $2.55 billion in 2024, $5.4 billion in 2023, and $3.25 billion in 2022.

1. $919 million – Tornetta, et al. v. Musk, Case No. 2018-0408 (Del. Chanc. Ct. Jan. 8, 2025) (final settlement approval granted in a class action to resolve shareholder claims that board members overpaid themselves from 2017 to 2020, a period when Tesla’s market capitalization rose dramatically).
2. $433.5 million – In Re Alibaba Group Holding Ltd. Securities Litigation, Case No. 20 Civ. 9568 (S.D.N.Y. Mar. 27, 2025) (final settlement approval granted in a class action to resolve claims from investors regarding alleged misstatements about the company’s exclusivity practices and its planned initial public offering of a fintech affiliate).
3. $362.5 million – Ap-Fonden, et al. v. General Electric, Case No. 17 Civ. 8457 (S.D.N.Y Apr. 24, 2025) (final settlement approval granted in a class action to resolve claims from investors alleging that General Electric Co. operated a cash shortfall in its power unit).
4. $167.5 million – In Re EQT Corp. Securities Litigation, Case No. 19-CV-754 (W.D. Penn. June 26, 2025) (preliminary settlement approval sought in a class action to resolve claims from investors alleging the company overstated the benefits of its $6.7 billion merger with Rice Energy).
5. $146 million – In Re Alta Mesa Resources, Inc. Securities Litigation, Case No. 19-CV-957 (S.D. Tex. May 6, 2025) (final settlement approval granted in a class action to resolve stemming from the $3.8 billion oil and gas company’s financial collapse in which investors alleged Alta Mesa secretly used unconventional drilling methods to inflate financial estimates before and after its merger with the SPAC).

Top TCPA Class Action Settlements In 2025

The top 10 TCPA class action settlements totaled $84.73 million in 2024, $103.45 million in 2023, and $134.13 million in 2022.

1. $20 million – Bumpus, et al. v. Realogy Holdings Corp., Case No. 19-CV-3309 (N.D. Cal. Mar. 10, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the company made harassing phone calls from real estate agents in violation of federal telemarketing restrictions).
2. $6.5 million – Williams, et al. v. PillPack LLC, Case No. 19-CV-5282 (W.D. Wash. Apr. 18, 2025) (final settlement approval granted in a class action to resolve claims alleging Amazon.com affiliate PillPack LLC was responsible for unsolicited telemarketing calls that violated a federal consumer law restricting robocalls and texts).
3. $4.1 million – Truong, et al. v. Truist Bank, Case No. 23-CV-79 (W.D.N.C. Apr. 30, 2025) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendant placed robocalls to cellphone numbers regarding unrelated accounts in violation of the TCPA).
4. $3.49 million – Johnson, et al. v. United HealthCare Services Inc., Case No. 23-CV-522 (M.D. Fla. July 10, 2025) (final settlement approval granted in a class action to resolve claims alleging the company violated the TCPA by placing calls to consumers about its Optum HouseCalls program).
5. $2.5 million – Samson, et al. v. United HealthCare Services, Inc., Case No. 19-CV-175 (W.D. Wash. June 20, 2025) (final settlement approval granted in a class action to resolve claims alleging that the company made telemarketing calls to non-members in violation of the TCPA).

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

Duane Morris Takeaway: Of all defenses, a defendant’s ability to enforce an arbitration agreement containing a class or collective action waiver may have had the single greatest impact in terms of shifting the pendulum of class action litigation. With its decision in Epic Systems Corp. v. Lewis, et al., 138 S. Ct. 1612 (2018), the U.S. Supreme Court cleared the last hurdle to widespread adoption of such agreements. In response, more companies of all types and sizes updated their onboarding materials, terms of use, and other types of agreements to require that employees and consumers resolve any disputes in arbitration on an individual basis. To date, companies have enjoyed a high rate of success enforcing those agreements and using them to thwart class actions out of the gate.

Watch below as Duane Morris partner Jerry Maatman discusses the arbitration defense and how it impacted class action litigation in 2023.

Statistically, corporate defendants fared well in asserting the defense. Across various areas of class action litigation, the defense won approximately 66% of motions to compel arbitration (approximately 123 motions across 187 cases) over the past year. Such numbers are similar to the numbers we saw in 2022, where defendants succeeded on 67% of motions to compel arbitration (roughly 64 motions granted in 96 cases).

The following graph shows this trend:

Despite a tumultuous year in 2022, the arbitration defense in 2023 remained one of the most powerful weapons in the defense toolkit in terms of avoid class and collective actions.

In 2022, the U.S. Supreme Court limited application of the FAA to workers who participate in interstate transportation and, perhaps more significantly, on the legislative front, Congress significantly limited the availability of arbitration for cases alleging sexual harassment or sexual assault. Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act or EFAA), and President Biden signed the Act into law on March 3, 2022.

The EFAA amended the FAA and provided plaintiffs the discretion to enforce pre-dispute arbitration provisions in cases where they allege conduct constituting “a sexual harassment dispute or a sexual assault dispute” or are the named representatives in “a class or in a collective action alleging such conduct.” In other words, the Act did not render such agreements invalid, but allowed the party bringing the sexual assault or sexual harassment claims to elect to enforce them or to avoid them.

It is likely that defendants have not yet felt the impact of either development.

1. The Impact Of The EFAA

Despite this setback for the arbitration defense in 2022, companies continued to enjoy a high rate of success enforcing these agreements and using them to thwart class actions in 2023. Since the EFAA became effective on March 3, 2022, courts have issued only 34 published decisions on plaintiffs’ attempts to use the EFAA to avoid arbitration. Plaintiffs succeeded in enforcing the EFAA and keeping claims in court, in whole or in part, in only about 9 of those rulings.

Many of the decisions denying enforcement of the EFAA turned on the fact that the EFAA is not retroactive. Congress provided that the provisions of the Ending Forced Arbitration Act would “apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act [March 3, 2022].” Thus, although courts have disagreed as to when disputes or claims “arise or accrue” for purposes of the EFAA, in many cases, all potential dates pre-dated March 3, 2022, and, therefore, courts concluded that the Act did not apply.

Many courts recognized an exception in cases where plaintiffs were able to allege a “continuing violation” that extended past March 3, 2022, generally finding that the EFAA allowed such claims to remain in court. In Betancourt, et al. v. Rivian Automotive, No. 22-CV-1299, 2023 WL 5352892, at *1 (C.D. Ill. Aug. 21, 2023), for example, plaintiff filed a class action lawsuit alleging that she was regularly subjected to unwanted sexual advances during her employment from December 6, 2021, through “about June 1, 2022,” and, despite making reports to several supervisory level employees, defendant failed to remedy the conduct. The defendant invoked its arbitration agreement with the plaintiff, which included a class and collective action waiver, and the plaintiff claimed that the agreement was unenforceable due to the EFAA. Id. at *2. Acknowledging that the EFFA does not apply retroactively, the court considered whether the action accrued before March 3, 2022, and held that it did not. The court reasoned that the plaintiff alleged a continuing violation, which was ongoing on the date the EFAA was enacted, and, therefore, the arbitration agreement and class action waiver were unenforceable. Id. at *5.

Approximately 12 of the decisions turned on court interpretations regarding the scope of the EFAA, and we observed the beginnings of a patchwork quilt of interpretations as to the scope of the claims subject to the EFFA. In Johnson, et al. v. Everyrealm, Inc., 657 F. Supp. 3d 535 (S.D.N.Y. 2023), for instance, the plaintiff brought claims for race discrimination, pay discrimination, sexual harassment, retaliation, and intentional infliction of emotional distress, among other things, and the defendant moved to dismiss the sexual harassment claim and to compel arbitration of the remainder. The court denied the motion. It noted that, in its operative language, the EFAA makes a pre-dispute arbitration agreement invalid and unenforceable “with respect to a case which is filed under Federal, Tribal, or State law and relates to the . . . sexual harassment dispute.” Id. at 558 (quoting 9 U.S.C. § 402(a) (emphasis added)). It found such text “clear, unambiguous, and decisive as to the issue.” Id. As a result, the district court concluded that plaintiff pled a plausible claim of sexual harassment in violation of New York law and “construe[d] the EFAA to render an arbitration clause unenforceable as to the entire case involving a viably pled sexual harassment dispute, as opposed to merely the claims in the case that pertain to the alleged sexual harassment.” Id. at 541.

In Mera, et al. v. SA Hospitality Group, LLC, No. 1:23 Civ. 03492 (S.D.N.Y. June 3, 2023), by contrast, plaintiff brought claims for unpaid wages under the FLSA and the New York Labor Law (NYLL), as well as claims for sexual orientation discrimination and hostile work environment. The employer moved to compel arbitration, and the court found the agreement unenforceable as to his hostile work environment claims but enforceable as to his FLSA and NYLL claims. The plaintiff argued that, under the EFAA, the arbitration agreement was unenforceable as to his entire “case,” including his unrelated wage and hour claims under the FLSA and the NYLL, which he brought on behalf of a broad group of individuals. Id. at *3. The court disagreed. It held that, under the EFAA, an arbitration agreement executed by an individual alleging sexual harassment is unenforceable only with respect to the claims in the case that relate to the sexual harassment dispute, since “[t]o hold otherwise would permit a plaintiff to elude a binding arbitration agreement with respect to wholly unrelated claims affecting a broad group of individuals having nothing to do with the particular sexual harassment affecting the plaintiff alone.” Id.

2. The Impact Of The Transportation Worker Exemption

Despite the U.S. Supreme Court’s clarification of the transportation worker exemption to the FAA in 2022, lower courts continue to grapple and disagree about its scope, effectively holding a potential wave of workplace litigation against transportation, logistics, and delivery companies in check.

In the first and arguably the largest door-opener to the courthouse for the plaintiffs’ class action bar during 2022, the Supreme Court narrowed the application of the Federal Arbitration Act by expanding its so-called “transportation worker exemption” in Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022). The plaintiff, a ramp supervisor, brought a collective action lawsuit against Southwest for alleged failure to pay overtime. Id. at 1787. Southwest moved to enforce its workplace arbitration agreement under the FAA. In response, the plaintiff claimed that she belonged to a class of workers engaged in foreign or interstate commerce and, therefore, fell within §1 of the FAA, which exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Id. The Supreme Court granted review and went on to hold that “any class of workers” directly involved in transporting goods across state or international borders falls within the exemption. Id. at 1789. It had no problem finding the plaintiff part of such a class: “We have said that it is ‘too plain to require discussion that the loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically a part of it.’ . . . We think it equally plan that airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods.” Id. (citation omitted).

Despite this decision clarifying the exemption, lower courts remained steeped in disputes, often generating irreconcilable differences of opinion over which workers signed arbitration agreements enforceable under the FAA and which did not. In Fraga v. Premium Retail Services, Inc., No. 1:21-CV-10751, 2023 WL 8435180 (D. Mass. Dec. 5, 2023), for example, after the parties litigated the enforceability of the arbitration agreement for more than two years, and the dispute resulted in three full scale judicial opinions, a two-day evidentiary hearing with 6 witnesses, and hundreds of pages of exhibits, the court determined that the plaintiff’s work, which involved sorting, loading, and transporting materials to retailers located within or outside Massachusetts “was not performed frequently and was not closely related to interstate transportation” so as to bring him within the exemption. Id. at *6.

Similarly, in Nunes, et al. v. LaserShip, Inc., No. 1:22-CV-2953, 2023 WL 6326615 (N.D. Ga. Sept. 28, 2023), the plaintiffs opposed a motion to compel arbitration contending that last-mile delivery drivers are engaged in interstate commerce because the goods they transport have traveled interstate and remain in the stream of commerce until delivered. The court disagreed. Whereas it found “no doubt” that the plaintiffs belong to a “class of workers employed in the transportation industry” because they locally transported packages from a warehouse to commercial and residential buildings, it concluded that plaintiffs “do not actually engage in interstate commerce.” Rather, their job entailed sorting and loading packages from the local warehouse and delivering the goods locally. Thus, the court determined that the plaintiffs were “too far removed from interstate activity,” and did not fall within § 1’s exemption.

By contrast, in Webb, et al. v. Rejoice Delivers, 2023 WL 8438577 (N.D. Cal. Dec. 5, 2023), the court found the opposite. The plaintiff picked up packages from local Amazon facilities and delivered the packages locally. The court, however, noted that, before reaching the local Amazon facilities, the goods had been ordered from Amazon’s website and taken to the local facilities by shipping trucks. As a result, the court held that, because plaintiff “pick[ed] up packages that ha[d] been distributed to Amazon warehouses, certainly across state lines, and transport[ed] them for the last leg of the shipment to their destination,” his work was “a part of a continuous interstate transportation” of goods, so that he was engaged in interstate commerce for the purposes of the FAA § 1 exemption. Id. at *7.

The U.S. Supreme Court is poised to offer more clarity as to this issue in Bissonnette, et al. v. LePage Bakeries Park St., LLC, No. 23-51 (U.S. Sept. 29, 2023). On September 29, 2023, the U.S. Supreme Court granted certiorari in to address the exemption. In Bissonnette, two workers who delivered breads and cakes sued a bakery claiming that it misclassified them as independent contractors and, therefore, denied them minimum wage and overtime. The workers asserted that the transportation worker exemption applied because they handled goods traveling in interstate commerce, but the Second Circuit affirmed the district court’s ruling granting defendant’s motion to compel arbitration.

The question presented to the U.S. Supreme Court involves whether, to be exempt from the FAA, a class of workers actively engaged in interstate transportation also must be employed by a company in the transportation industry. Thus, the Supreme Court’s ruling could provide additional clarity in narrowing or expanding the scope of the exemption, potentially opening the doors to additional class claims.

Given the impact of the arbitration defense, in 2024, companies are apt face additional hurdles, on the judicial or the legislative front, as the plaintiffs’ bar continues to look for workarounds. In particular, as more plaintiffs can assert claims that post-date the EFAA, we expect to see additional litigation and more decisions over the interpretation of the EFAA, including whether the Act’s use of the word “case” renders the statute applicable to all claims in the case, including claims other than sexual harassment and sexual assault, and whether the statute, therefore, will allow for a broader shield to the arbitration defense.

That said, the future viability of the arbitration defense remains an open question, as advocacy groups, government regulators, and political figures push for a ban on class action waivers in arbitration.

By Gerald L. Maatman and Jennifer A. Riley

Duane Morris Takeaway: During the past year, the label “ESG” became “mainstream,” and discussion of its impact became a recurring topic of conversation in boardrooms across the country. ESG refers to broadly to “environmental, social, and governance,” which many companies have embraced as part of their business plans and corporate missions.

Watch the video below as Duane Morris partner Jerry Maatman discusses the impact of ESG on class action litigation and how this trend will evolve in 2024.

DMCAR Trend #9 – ESG Class Action Litigation Hit Its Stride

ESG was not immune to lawsuits, and we saw a steady influx of class action litigation in two particular ESI spheres – (i) product advertising and (ii) employment and DEI-related lawsuits.

The former focused on product advertising and, in particular, on allegations that marketing campaigns touting products as “green” or “sustainable” or “carbon neutral,” among other things, are false, misleading, and deceptive. Commonly called “greenwashing,” these claims generally refer to false or misleading statements about the environmental benefits or about the performance of particular products or operations and, in particular, tend to target statements touting the “green” or “sustainable” or “eco-friendly” characteristics of such products or operations.

Most often, plaintiffs’ class action attorneys file greenwashing lawsuits as class actions. These lawsuits largely focus on claims that defendants marketed products as “environmentally responsible,” “sustainably sourced,” or “humanely raised,” arguing that such misleading claims induce purchasers to pay a premium for “greener” products.

In Smith, et al. v. Keurig Green Mountain, Inc., No. 4:18-CV-06690 (N.D. Cal.), for example, the plaintiffs filed a class action lawsuit asserting various claims, including breach of warranty, misrepresentation, and violation of the California Unfair Competition Law, targeting Keurig’s representations regarding its K-cup coffee pods. In particular, Keurig marketed its K-cups as recyclable with labeling that consumers could “[h]ave [their] cup and recycle it, too.” The plaintiffs claimed that, in fact, the K-cups were not recyclable. In 2019, the court denied Keurig’s motion to dismiss, and, in 2020, the court granted the plaintiff’s motion for class certification. In February 2023, the court granted final approval of class action settlement for $10 million.

In Dwyer, et al. v. Allbirds, 598 F. Supp. 3d 137 (S.D.N.Y. 2022), the plaintiff filed a similar greenwashing class action alleging that defendant marketed its shoes, in part, based on their sustainability using statements like “Sustainability Meets Style” and “Environmentally Friendly.” The plaintiff brought claims for breach of express warranty, fraud, and unjust enrichment and asserted violations of §§ 349-350 of the New York General Business Law. Allbirds maintained a website showing the carbon footprint associated with its products based on a life-cycle analysis (LCA), and showing the environmental impact of its materials based on the third-party Higg Material Sustainability Index (Higg MSI). The plaintiff attacked the LCA tool and the Higg MSI standard as incomplete measurements of product sustainability. The court granted Allbirds’ motion to dismiss for failure to state a claim.

In Lizama, et al. v. H&M Hennes & Mauritz LP, No. 4:22-CV-1170 (E.D. Mo. 2023), the plaintiffs filed a class action complaint alleging that the retailer deceptively attempted to “greenwash” its allegedly environmentally damaging practices. H&M’s “Conscious Choice” collection included items made from recycled and organic materials that H&M marketed as “more sustainable.” The plaintiffs alleged that, in fact, H&M’s clothing was not sustainable because the synthetic materials in the collection had a negative environmental impact. The plaintiffs asserted claims for violation of various California and Missouri statutes and sought to certify various sub-classes. On May 12, 2023, the court granted the defendant’s motion to dismiss the California claims for lack of personal jurisdiction and dismissed the Missouri claims because it found the alleged statements not misleading as a matter of law.

Relative to employment and DEI-related lawsuits, the plaintiffs’ class action bar focused numerous claims based on allegations that companies failed to live up to their representations regarding diversity, equity, and inclusion or breached their DEI commitments.

Plaintiffs anchored many of their class claims on board-related DEI commitments, employment discrimination, and workplace safety issues. In the corporate DEI cases, plaintiffs asserted claims that companies allegedly failed to live up to their DEI commitments or failed to abide by their DEI policies or practices. In many of the ESG-related employment discrimination cases, plaintiffs focused on claims that corporate officers or directors breached their fiduciary duties by failing to address employment discrimination, by adopting policies that discriminate, or by failing to address safety concerns.

In Bucks County Employees Retirement System v. Norfolk Southern Corp., No. 2:23-CV-982 (N.D. Ga. 2023), for instance, the plaintiff filed a securities class action against the defendant and three of its managers alleging that they misrepresented the corporation’s worker safety practices prior to a chemical train derailment, leading investors to purchase company stock at inflated levels. The plaintiff alleged that the defendants committed to safety as a “core value” in their public statements and SEC filings but, in reality prioritized more lucrative practices at the expense of safety, such as longer and heavier trains and lower headcounts. The plaintiff asserted that such culture of “increased risk-taking” made the company more vulnerable to derailments.

As companies continue to add statements regarding their environmental impact or social responsibility to enhance their marketing efforts, communicate their company values, and/or attempt to appeal to consumers and shareholders attuned to ESG considerations, we expect to see ESG class actions continue their growth trajectory.

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

Duane Morris Takeaway: Generative AI hit mainstream in 2023 and quickly become one of the most talked-about and debated subjects among corporate legal counsel across the country, as numerous companies jumped to incorporate AI while attempting to manage its risks. In 2023, we saw the tip of the iceberg relative to the ways that generative AI is poised to transform class action litigation.

In the video below, Duane Morris partner Jennifer Riley discusses the latest AI class action rulings, and what companies can expect to see in AI litigation in 2024.

DMCAR Trend #8 – Generative AI Began Transforming Class Action Litigation

1. Opportunities For Enhanced Efficiency

As the COVID 19 pandemic brought video-conferencing tools into the mainstream, such tools enabled more litigants to conduct and to attend more hearings, more depositions, and more mediations in less time. While the debate continues as to their effectiveness, generative AI is poised to enable lawyers to far surpass those gains in efficiency, potentially enabling the plaintiffs’ class action bar to do “more with less” like never before, leading to more lawsuits that can be handled by fewer lawyers in less time and a potential surge of class actions on the horizon.

Less than a year into the generative AI movement, we have seen the technology influence various aspects of the legal process, including by assisting legal professionals in analyzing vast amounts of data; automating the review of documents, contracts, and communications; increasing the speed and potentially enhancing the accuracy of e-discovery; and automating and enhancing the dissemination of information in the class action settlement administration process.

Legal research, for example, traditionally required a time-consuming undertaking that involved sifting through dozens of decisions and secondary authorities. AI tools are enhancing this process through natural language search capabilities and machine learning algorithms that streamline the process and enhance the results. Document review similarly traditionally required a time-consuming and painstaking process. AI tools are using machine learning and text analytics, for example, to sort and categorize large datasets with increasing accuracy. By quickly analyzing extensive document sets, AI tools can expedite the discovery process, making litigation more efficient and cost-effective.

Likewise, AI has the potential to revolutionize the process of administering class action settlements. The participation in claims-made settlements, for instance, often falls within the range of 15% to 35%, depending upon various factors such as the type and method of notice. AI can be used in a variety of ways, including to find potential class members and thereby raise claim rates, while reducing administrative costs, increasing the amount available for distribution as well as the ultimate settlement payout.

In sum, the legal industry is poised to leverage this transformative technology to make leaps in enhancing the efficiency and effectiveness of the class action litigation process.

2. Risk Of Class Claims

While improving the efficiency with which the plaintiffs’ class action bar can litigate class actions, generative AI is providing an ocean of raw material for potential claims. Upon hitting the mainstream, AI promptly became the subject of class claims, which span multiple theories and areas of law.

While generative AI might improve the speed of interactions, for instance, users have the ability to exploit AI to generate massive amounts of false information or to simply inadvertently rely upon errors in AI-generated communications, giving rise to claims. Similarly, the SEC has warned businesses against “AI washing,” or making false claims regarding their AI capabilities, likening it to the greenwashing phenomenon that has been the target of an agency crackdown. The plaintiffs’ class action bar is using such representations about AI to fuel class claims for consumer fraud based on allegedly misleading or deceptive representations about the efficacy of AI technology. In Matsko, et al. v. Tesla, Case No. 22-CV-5240 (N.D. Cal. Sept. 14, 2022), for instance, a plaintiff filed a class action alleging that Tesla exaggerated the capabilities of its software and asserting various causes of action for breach of warranty and violation of California consumer protection laws, among others.

Companies that incorporate AI to streamline their decision-making processes likewise face the prospect of class action suits. Plaintiffs have filed suits against insurers that used algorithms to adjudicate claims, for example, as well as against agencies that used programs to deny or reduce government benefits. In Kisting-Leung, et al. v. Cigna Corp., Case No. 23-CV-01477 (E.D. Cal. 2023), for instance, a group of California consumers filed a class action complaint against a national health insurance company alleging that its use of an algorithm to deny certain medical claims constituted breach of the implied covenant of good faith and fair dealing, unjust enrichment, intentionally interfered with contractual relations, and violated California’s Unfair Competition Law.

The developers of generative AI products have not remained immune. Such companies have faced a slew of class action lawsuits alleging privacy violations. In a series of lawsuits beginning in June and July 2023, the plaintiffs’ class action bar has alleged that, by collecting publicly-available data to develop and train their software, developers of generative AI products stole private and personal information from millions of individuals. In P.M., et al. v. OpenAI LP, No. 3:2023-CV-03199 (N.D. Cal. 2023), a group of plaintiffs filed a class action suit against OpenAI LP and Microsoft, Inc. alleging that by collecting publicly-available information from the internet to develop and train its generative AI tools, including ChatGPT, Dall-E, and Vall-E, OpenAI stole private information from millions of people, violating their privacy and property rights, among other claims. In J.L., et al. v. Alphabet Inc., No. 3:23-CV-03440 (N.D. Cal. 2023), the same plaintiffs’ firm filed a class action lawsuit against Google, similarly alleging that, by collecting internet data to train its tools like Bard, Imagen and Gemini, Google infringed privacy rights and violated the Copyright Act.

Developers of generative AI tools similarly have faced claims. Plaintiffs have filed class action lawsuits claiming that, by collecting and using internet data to train generative AI models, developers violated copyright laws. In Andersen, et al. v. Stability AI, Ltd., Case No. 23-CV-00201 (N.D. Cal. Oct. 20, 2023), for example, plaintiffs filed a class action on behalf of artists alleging that Stability AI, Ltd. and Stability AI, Inc. “scraped” billions of copyrighted images from online sources, without permission, to train their models to generate new images without ascribing credit to the original artists. In Doe v. GitHub, Inc., 22-CV-06823 (N.D. Cal. May 11, 2023), the plaintiffs, a group of developers who allegedly published licensed code on GitHub’s website, filed a class action lawsuit against GitHub, the online code repository, as well as Microsoft and OpenAI claiming that GitHub improperly used that code to train its AI-powered coding assistant, Copilot, without appropriate attribution in violation of copyright management laws.

As technology continues to grow and change, and the plaintiffs’ class action bar continues to flex its creativity, the number and types of claims are likely to expand and evolve during the upcoming year.