Class Action Defense

July 29, 2026July 29, 2026 by Gerald L. Maatman, Jr.

“Calling” Out Fraud: Florida Federal Court Allows Counterclaim To Proceed Against TCPA Plaintiff

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

Duane Morris Takeaways: On July 21, 2026, in Smith v. GetMeHealthCare, LLC, No. 25-CV-00568, 2026 WL 2089044 (M.D. Fla. July 21, 2026), Judge Sheri Polster Chappell, writing for the U.S. District Court for the Middle District of Florida denied a Telephone Consumer Protection Act (“TCPA”) plaintiff’s motion to dismiss a common law fraud claim brought by the defendant. Although TCPA claims can prove difficult to win on a motion to dismiss, this decision provides TCPA defendants with another powerful tool at the pleadings stage and helps create opportunities for companies to educate courts on a plaintiff’s fraudulent activity early in the proceedings.

Case Background

In 2025, Plaintiff Keneisha Smith (“Plaintiff” or “Smith”) filed a TCPA lawsuit against GetMeHealthCare, LLC (“GMHC”), alleging she received 31 unwanted telemarketing calls over a 10-day period. She claims these calls were made without her consent and even though she registered her telephone number on the national do-not-call registry.

Nonetheless, on June 12, 2025, Smith answered one of these alleged telemarketing calls. She provided her name, phone number, address, date of birth, and current insurance information. The agent then transferred Smith to a GMHC employee, who helped Smith complete the enrollment process, and signed her up for an insurance plan. Even though Smith willingly signed up for insurance, she sued GMHC claiming it violated Section 227(c)(5) of the TCPA, and its implementing regulations, for calling her telephone number despite its registration on the national do-not-call registry.

But GMHC decided to put these facts in front of the Court right away. Instead of simply moving to dismiss the claims, GMHC answered the complaint and filed counterclaims for fraudulent misrepresentation and fraudulent inducement. It argued that “Smith’s willingness to participate in the June 12, 2025, call is inconsistent with her wish not to be contacted.” Id. at *1. Smith also allegedly lied about her age, her actual willingness to obtain health insurance, and her desire to be contacted in the future. In support of its counterclaims, “GMHC sent a recording of the June 12, 2025 call and attached transcript of the call” to its pleadings. Id. at *1, n.1.

In response, Smith moved to dismiss the counterclaims.

The Court’s Decision

In a well-reasoned order, Judge Chappell denied Smith’s motion to dismiss in its entirety, finding “all of Smith’s arguments to be meritless.” Id. Although Smith asserted various arguments regarding the Court’s jurisdiction and GMHC’s requested relief, the majority of the opinion focused on the actual allegations of GMHC’s counterclaim, which were sufficiently pled to survive a motion to dismiss.

In federal court, fraud claims must be pled with a heightened degree of particularity. See Fed. R. Civ. P. 9(b). Under this standard, “claims of fraud must proffer ‘the who, what, when, where, and how of the fraud alleged.’” Smith, 2026 WL 2089044, at *2 (quoting Omnipol, a.S. v. Worrell, 421 F. Supp. 3d 1321, 1343 (M.D. Fla. 2019), aff’d sub nom., 32 F.4th 1298 (11th Cir. 2022))

Here, Judge Chappell found that GMHC pled all of these details and the misrepresentations could be actionable. Judge Chappell found that Smith’s alleged conduct before the call where she “consent[ed] to be contacted,” when coupled with her misrepresentations about her “age” and desire to complete “enrollment,” could plausibly constitute fraud. Smith, 2026 WL 2089044, at *3. Judge Chappell also accepted GMHC’s plausible allegations that Smith’s “motivation [was] to commit fraud” and the communication was orchestrated to form the basis of “a lawsuit against GMHC to get money.” Id. Judge Chappell also independently concluded that the recording and transcript of the call supported “most, if not all, of GMHC’s allegations.” Id.

Thus, Judge Chappel rejected “Smith’s Rule 9(b) argument” and declined to dismiss the claim. Id.

Implications For Companies

The litigation strategy in Smith is significant for companies facing TCPA lawsuits.

As many companies know, it is common for a consenting customer to invite telemarketing calls, and then “deceptively play[] along” upon receipt of those calls, only to turn around and sue the caller in a TCPA class action. Abramson v. Oasis Power LLC, No. 18-CV-00479, 2018 WL 4101857, at *5 (W.D. Pa. July 31, 2018). When companies try to explain these tactics to courts at the pleadings stage, the concerns are often brushed away as “unpersuasive.” Id. The reason that strategy is ineffective is because “[p]rior express consent is an affirmative defense to a claim under the TCPA” and typically must be resolved after discovery. Murphy v. DCI Biologicals Orlando, LLC, No. 12-CV-1459, 2013 WL 6865772., at *4 (M.D. Fla. Dec. 31, 2013) (quotations omitted).

With the benefit of discovery, companies can often demonstrate the “Plaintiff invited the initial call . . . [and] further calls by playing along on the first call” as a basis why a class should not be certified because it is a unique defense that “will distract from the claim to the Class’s detriment.” Sapan v. Fed. Sav. Bank, No. 23-CV-00075, 2025 WL 3050064, at *8 (C.D. Cal. Sept. 30, 2025) (denying class certification based on typicality); see also Sapan v. Veritas Funding, LLC, No. 23-CV-00468, 2023 WL 6370223, at (C.D. Cal. July 28, 2023) (same). But it requires a significant investment to litigate a claim through class certification, and many companies are looking for an exit opportunity prior to that stage in the proceedings.

Smith provides companies with a tool to get these facts in front of courts at the earliest stages of the litigation and shape the judge’s impression of the case. It also provides companies with additional recourse as common law fraud opens up the door to tort damages that are traditionally off the table in TCPA cases. For example, in Illinois, there is an argument that “actions at common law fraud provide for the award of attorney fees and costs, as well as punitive damages.” Father & Sons, Inc. v. Taylor, 703 N.E.2d 532, 547 (Ill. App. Ct. 1998).

Further, even if the counterclaim cannot result in the entire action being dismissed at the outset of a case, it can create leverage for the company to negotiate a favorable exit from the litigation early on. And, if the case proceeds to discovery regardless, the counterclaim can prove useful given that “a defense or counterclaim defeats typicality if it is likely to become the litigation’s focus.” Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 133 (N.D. Tex. 2020).

Thus, corporate counsel facing TCPA actions should be carefully considering the facts in their cases to determine whether they support the use of a similar counterclaim or other creative procedural defenses.

July 23, 2026July 23, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 157: $10 Million Settlement Proposed To Resolve Right Of Publicity Class Action

Duane Morris Takeaway: This week’s episode features Duane Morris partner Jerry Maatman and special counsel Justin Donoho with their analysis of a $10 million preliminary settlement between a data aggregator and a group of plaintiffs from nine states alleging violations of their right to publicity.

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

Episode Transcript

Jerry Maatman: Thank you for being here again for our next episode of the weekly podcast, the Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today is my colleague Justin Donoho, who knows all things privacy. Thanks so much for being on the podcast today.

Justin Donoho: Great to be here, Jerry. Thanks for having me.

Jerry: Today, we’re discussing for our listeners a significant class action settlement involving data privacy, the right to publicity, and the use of personal information on online marketing purposes. The case is called Kellman v. Spokeo. There’s been a lot of interest in this case by our clients, and the parties have now reached a proposed settlement. So, we’re going to talk about what the case raises for companies, what the proposed settlement actually provides, and more importantly, what are the key takeaways for companies. Justin, let’s start with the basics – what’s the case about?

Justin: Yes, this case concerns Spokeo’s use of personal information in what the plaintiffs called “teaser profiles.” So, Spokeo operates a people search website. Users can search for information about individuals, and Spokeo provides information about those individuals through its website. Now, some of that information is available through a free search, while additional information is behind a paywall or requires a subscription. So, the plaintiffs allege that Spokeo used their personal information, including their names and home addresses in teaser profiles to market and sell subscriptions to the Spokeo website. The theory was that Spokeo wasn’t simply providing information about individuals. According to the plaintiffs, it was using individuals’ identities to promote a commercial service without obtaining their consent, and that distinction was important because the plaintiffs brought claims under a right of publicity laws in various states.

Jerry: So, as things go, this was not a traditional data breach case, right?

Justin: Correct. There was no allegation that Spokeo suffered a data breach that exposed information to any cybercriminals or anything like that. Instead, this case involved the commercial use of personal information, alleged commercial use. That’s an important distinction for companies because privacy risk isn’t limited to cybersecurity incidents. A company can face potential liability based on what it does with information that it lawfully possesses. Here, the plaintiffs alleged that Spokeo’s use of their identities in connection with marketing paid subscriptions violated state right of publicity laws.

Jerry: So, as I understand it, those laws can be particularly significant, and may provide pretty weighty statutory damages, even without proof of a pocketbook injury or actual economic loss.

Justin: Exactly. The proposed settlement filing explains that the relevant laws in Alabama and a lot of other states – California, Illinois, Indiana, Louisiana, Nevada, Ohio, South Dakota, and Washington – generally prohibit the unauthorized commercial use of an individual’s identity. The statutes differ from state to state, but they do provide statutory minimum damages. So, it ranged from $750,000 to $5,000 – in our home state of Illinois, I think it’s $1,000 – everything within that range among those states. So, that creates a potentially significant litigation risk when a company allegedly applies the same practice to large numbers of people.

Jerry: Let’s talk about the history of the case in terms of how the settlement occurred. As I understand it, the case had been ongoing for several years.

Justin: Yes, the original lawsuit was filed in November of 2021 by three plaintiffs asserting claims under California, Ohio, and Indiana law. Spokeo moved to dismiss, arguing, among other things, a lack of standing had not stated valid claims. In April of 2022, the court denied the motion to dismiss. There was permission sought for an interlocutory appeal, extensive discovery. According to the settlement filing, that included written discovery, document production, depositions, discovery disputes, expert work, motion practice. So, this was not a case that settled at the very beginning of the litigation.

Jerry: And as we have discussed many times on this podcast, pursuit and successful victory in the class certification context is all about gaining and obtaining class certification. That’s the holy grail that enables plaintiffs’ counsel to negotiate favorable settlements. In this case, was class certification a major pivot point in the case?

Justin: Absolutely, yes. The plaintiffs moved for class certification in 2023. Ultimately, they withdrew their request for a nationwide damages class, but the court certified California and Ohio classes with modifications to the proposed class definitions. Spokeo petitioned the Ninth Circuit for permission to appeal that order. The Ninth Circuit denied the petition, so that was an important point in the litigation because class certification significantly increased the stakes.

Jerry: If the settlement is ultimately approved by the court under Rule 23, let’s talk about the numbers in the settlement. The proposed settlement has the headline number of $10 million, is that correct?

Justin: Yes, that’s right. Spokeo would establish nine state-specific settlement funds totaling that $10 million, right? The funds are described as non-reversionary, also. That means the money if it’s not initially distributed to class members, it doesn’t simply go back to Spokeo. Instead, the settlement provides mechanisms for the remaining funds to be redistributed to claiming class members where practicable or otherwise handled as directed by the court. The actual amount each person receives will depend on a number of factors, including the number of valid claims submitted in that state and deductions for settlement administration expenses attorneys’ fees and costs, and any incentive awards approved by the court. So, the plaintiffs’ filing estimates that, assuming a 10% claims rate, individual recoveries could range from tens of dollars to more than $1,000, depending on the state.

Jerry: Was there any class-wide injunctive relief in the proposed settlement?

Justin: Yes, also a very important aspect of this settlement from a business perspective. Under the proposed settlement or agreement, when a user conducts a search that Spokeo’s algorithms interpret as a name search, Spokeo will modify the relevant purchase and payment pages so that the full name and home address of individuals in the injunction classes will no longer be displayed in that portion of the website flow. So, the proposed change is to be implemented within 30 days after entry of an order granting final approval. Gotta change all those business processes within 30 days.

Jerry: I think those aspects of the settlement tend to be more relevant to companies in terms of lessons learned. In terms of lessons learned, what are the takeaways for companies about the commercial use of data, and not just collection or security of that data?

Justin: Well, I think it means that a company might lawfully obtain information from public records or third-party data providers, but what this case teaches is that that doesn’t necessarily answer whether the company can use that information in every conceivable way. The question becomes, what is the company doing with this information? Is it displaying it, selling access to it, using it to generate leads? Using it to target advertising, using someone else’s name or likeness to promote a product, Incorporating somebody’s identity? Most importantly, is any of that violating any laws? So those are different uses, and they can present different legal risks.

Jerry: Let’s dig into that a little bit. What should a company do if it’s operating a business model involving the use of personal information like that?

Justin: Oh, boy, so many different uses of personal information. So, the first thing to do is to map the data lifecycle. Companies should know what personal information they collect, where it comes from, how it’s stored, who has access to it, how it’s ultimately used kind of a complex process there for many companies with a lot of personal information. Second, companies should specifically identify any uses of personal information that are commercial or promotional. Third, companies should conduct a state-by-state legal analysis where appropriate. Nationwide businesses shouldn’t assume that because a practice is permissible under one state’s law, it’s necessarily permissible everywhere. Fourth, companies should review their marketing and product design practices together. Sometimes legal risk is created not by a single marketing campaign, but by the design of the whole customer journey. And fifth, companies should think about class action exposure. If a company has a practice that is applied uniformly to thousands or millions of people, the aggregate litigation risk can be much greater than the potential exposure associated with any one individual claim.

Jerry: So, from a company’s perspective, I take it this means that a potential privacy or right of privacy issue should be evaluated early on before the business practice becomes the subject, obviously, of class action litigation.

Justin: Absolutely, and that’s particularly important as companies increasingly rely on data aggregation, AI, personalization, targeted advertising, automated marketing, all of that.

Jerry: So, the practical takeaway on the checklist should be know your data, know where it comes from, know how you’re using it, and understanding what laws apply to those uses.

Justin: Yes, absolutely. And also review practices that have become embedded in your products over time. Sometimes a feature was created years ago, when the legal environment was different, and no one’s revisited.

Jerry: Well, Justin, this has been a great tour of the privacy world, a super discussion. Thank you for your detailed analysis of the settlement and thank you for being here today. And thank you to our listeners for being here today, we’re glad you tuned in for another edition of the Class Action Weekly Wire.

Justin: Thanks, Jerry, and thank you to the listeners. It was a great time to be here. Appreciate it.

July 17, 2026July 17, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 156: Mid-Year Class Certification Review & Analysis

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman and Jennifer Riley with their analysis of class certification data in the first six months of 2026 and their prognostications for trends shaping the remainder of the year.

Read our full mid-year settlement review here and class certification data here.

Episode Transcript

Jerry Maatman: Hello, everyone, and welcome to the next episode of the Class Action Weekly Wire. I’m Jerry Maatman, and with me today for a special mid-year review of class certification numbers is Jen Riley. Jen, welcome back to the show.

Jennifer Riley: Thanks, Jerry, it’s great to be here, especially with so much going on in the class action space this year.

Jerry: Well, here we are, halfway through 2026. Let’s start with the big picture. Courts ruled on more than 155 class certification motions in just the first half of the year, and plaintiffs were successful in 63% of those situations. That’s quite a difference from the year before, isn’t it?

Jennifer: It is. Last year, the success rate was 68%, so we’re seeing a notable downtick. An even bigger change that we saw in 2024, 2023, and 2022, when certification success rates hit 69%, 72%, and 74%, respectively. So, the trajectory so far this year suggests that plaintiffs might not be as successful as they have been in the past.

Jerry: Seems to me what’s interesting, behind the numbers is the downturn isn’t across the board, it really depends on the subject matter area at issue in the class action.

Jennifer: Exactly. So, certification rates are all over the place. FCRA, TCPA, RICO, and WARN class certification decisions have all been small in number, with only one or two rulings in each of those areas, but all of them have been granted. So, 80% of class certification motions and securities fraud cases have been granted. Then on the flip side, less than half of certification motions and privacy were granted, and the one ruling on a class certification and products liability was denied.

Jerry: That really does run the gamut, and its very statute-oriented or subject matter oriented. Let’s talk about wage and hour or Fair Labor Standards Act conditional certification. Does that continue to be the most active area litigation in this space?

Jennifer: It does. From January through June, courts issued 69 rulings in FLSA matters. 67 of those were first stage motions for conditional certification, and plaintiffs won 39. So, that’s a success rate of only 58%, which is way down from the 76% in 2025 and the 79% we saw in 2024.

Jerry: When I look at those numbers and look at the locations, it’s striking how those rulings are congregated in certain geographic areas. A large chunk came from the Second and Ninth Circuits – places like New York City and San Francisco and Los Angeles, which tend to be more favorable to the plaintiffs’ bar.

Jennifer: That’s absolutely right. And at the decertification stage, the usual trend where defendants succeed more often hasn’t really been playing out this year. We’ve seen only two decertification rulings so far, and plaintiffs won one of those. So, it’s 50-50 so far this year.

Jerry: One of the key takeaways for me from this mid-year data analytics analysis is how much locations impact where cases get filed. We’re seeing very few rulings, for instance, from the Fifth, Sixth, and Seventh Circuits: only five in total. Any thoughts on why this is going on?

Jennifer: Great question. So, I think it’s likely a strategic move by the plaintiffs. Those circuits have adopted stricter standards for conditional certification, really making them less appealing venues. So, plaintiffs may be shifting, shifting their filings toward more lenient circuits to give them a better chance of success.

Jerry: If more circuits would follow the lead of the Fifth, Sixth, and Seventh Circuits, and start abandoning the traditional two-step certification process established in the Lusardi case out of New Jersey in 1987, that could have a big impact on where cases are brought and how they’re treated by the courts.

Jennifer: Absolutely. The mid-year numbers show us that venue selection, subject matter, and timing are all very critical in class action strategy. And with the FLSA continuing to dominate, we’ll be watching closely to see how courts respond in the second half of the year.

Jerry: Well, we’ll have the final data and full analysis in the Duane Morris Class Action Review for 2027 coming out in the first week of January of next year, so stay tuned. We’ll be back with more insights then. Jen, thanks as always for being here and for giving us your analysis of these trends on class certification.

Jennifer: Thank you, Jerry, and thanks to our listeners for tuning in.

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

Seventh Circuit Holds That The TCPA’s Do-Not-Call Provision Does Not Cover Text Message

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

Duane Morris Takeaways: On July 14, 2026, in Steidinger, et al. v. Blackstone Medical Services, No. 25-2398, 2026 WL 2028517 (7th Cir. July 14, 2026), Judge Thomas Kirsch, writing for the U.S. Court of Appeals for the Seventh Circuit, affirmed the dismissal of a putative class action complaint and held that 47 U.S.C. § 227(c)(5) of the Telephone Consumer Protection Act (“TCPA”) does not create a private right of action for the receipt of unwanted text messages.

The decision is significant because it represents the first federal appellate decision squarely holding that text messages are not “telephone calls” within the meaning of Section 227(c)(5) and significantly reduces potential TCPA-related liability for companies operating in the Seventh Circuit.

Case Background

The plaintiffs in this case are a group of individuals (“Plaintiffs”) who received text messages and calls from Blackstone Medical Services (“Blackstone”) promoting the company’s home sleep tests. Plaintiffs alleged that they received these communications even though they were either registered on the national do-not-call registry or after they communicated to Blackstone that they did not want to be contacted. As a result, Plaintiffs filed a putative class action complaint against Blackstone, alleging violations of the TCPA and Florida’s mini-TCPA law, seeking statutory damages, an injunction, and declaratory relief. Specifically, Plaintiffs sued under Section 227(c)(5) of the TCPA which provides plaintiffs with a private right of action for certain “violation[s] of the regulations prescribed under this subsection.” 47 U.S.C. §227(c)(5)(a).

Blackstone moved to dismiss Plaintiffs’ TCPA claims. It argued that because the private right of action in Section 227(c)(5) is limited to any “person who has received more than one telephone call,” the provision only applies to “telephone calls” and not text messages. The U.S. District Court for the Central District of Illinois agreed with Blackstone. Jones v. Blackstone Med. Servs., LLC, 792 F. Supp. 3d 894, 902 (C.D. Ill. 2025).The district court concluded “based on a plain reading of the TCPA and its implementing regulations, Section 227(c)(5) does not apply to text messages.” Id. The district court also declined to exercise supplemental jurisdiction over Plaintiffs’ state law claim and dismissed the lawsuit. Plaintiffs appealed.

The Seventh Circuit’s Ruling

In a 13-page opinion, Judge Thomas Kirsch, writing for the Seventh Circuit, succinctly concluded “that § 227(c)(5) does not permit plaintiffs to sue for the receipt of unwanted texts.” Steidinger, 2026 WL 2028517, at *1.

The Seventh Circuit explained that Section 227(c)(5) creates a private right of action for any individual “who has received more than one telephone call within any 12-month period” in violation of the regulations implementing that subjection. Id. at *2(quoting 47 U.S.C. § 227(c)(5)). Thus, the dispute hinged on the meaning of the term “telephone call” when the statute was passed in 1991. Id.

As Judge Kirsch explained, in 1991, a “telephone” was defined as “[a]n instrument for reproducing sounds at a distance” and a “call” was defined as “to get or try to get into communication by telephone.” Id. Therefore, a “telephone call” would have “referred to communication via sound.” Id. But “[t]ext messages do not reproduce sounds” and would not have been thought of as calls (especially given that the first text message was not sent till 1992). Id.

After observing other structural elements of the TCPA which would suggest narrower reading of the term “telephone call,” the Seventh Circuit also rejected Plaintiffs’ argument that the Federal Communications Commission’s (“FCC”) interpretation of “call,” which included text messages, was entitled to deference. In McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, 606 U.S. 146, 168 (2025), the U.S. Supreme Court had already determined that courts are “not bound by the FCC’s interpretation of the TCPA.” Thus, the Seventh Circuit determined that it would not afford deference to the FCC’s interpretation.

Finally, the Seventh Circuit opined on the public policy concerns remedied by the TCPA. The Seventh Circuit explained that, when Congress passed the TCPA, it “specifically found that telemarketing calls create a public safety risk when they seize telephone lines needed for emergency or medical assistance.” Steidinger, 2026 WL 2028517, at *5. But “[s]pam text messages don’t pose this risk, making it unsurprising, or at the very least reasonable, that § 227(c)(5)’s private right of action would cover telephone calls but not messages.” Id.

In short, “[r]epeated, unwanted text messages are undoubtedly a nuisance. But they do not fall within the private right of action created by § 227(c)(5).” Id.

Implications For Companies

The Steidinger decision is likely the single most important decision in the post-McKesson era.

For TCPA cases filed in Illinois, Indiana, and Wisconsin, a company cannot be sued based on text messages that were allegedly made in violation of the TCPA’s implementing regulations. As a result, the typical claims that are often brought under Section 227(c)(5) will no longer be available to plaintiffs where the communications in question were text messages. These claims include situations where a company allegedly violated the national do-not-call registry’s requirements, their own internal do-not-call registry’s requirements, where texts were made without caller identification information, where texts were made during “quiet hours,” and other claims typically brought under Section 227(c)(5). Steidinger should take each of these claims off the table within these jurisdictions.

Steininger, however, is not the end of this fight. In Howard v. Republican National Committee, 164 F.4th 1119, 1123-24 (9th Cir. 2026), the Ninth Circuit determined (albeit while considering a Section 227(b)(3) claim) that text messages were covered by the broad definition of the phrase “any call” as applicable in that case. Although there may theoretically be some daylight between the phrase “any call” as interpreted in Howard, and the phrase “telephone call” as interpreted in Steidinger, this decision certainly signals a growing methodological division between these two circuits.

While Steininger is undoubtably beneficial for companies, corporate counsel should be mindful that this case does not mean their texts are unregulated for at least three reasons. First, even in the Seventh Circuit, private plaintiffs can still theoretically bring claims under Section 227(b)(3) if the texts are made using an “automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). Second, there are also other federal, state, and local jurisdictions which prohibit the conduct previously protected by the TCPA in the Seventh Circuit. And third, Steininger only removes the risk of a federal class action lawsuit under Section 227(c)(5), it does not eliminate the risk of an FCC enforcement action related to a company’s text messaging programs.

We will be monitoring any developments in this space and corporate counsel should continue to check in regularly as the TCPA landscape continues to shift.

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

Seventh Circuit Undoes Novel Privacy Class Settlement Due To Lack Of Separate Representatives For Nationwide Class And State Sub-Classes

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

Duane Morris Takeaways: On July 13, 2026, in the case captioned as In Re Clearview AI, Inc. Consumer Privacy Litigation, No. 25-1673, 2026 U.S. App. LEXIS 20406 (7th Cir. July 13, 2026), the U.S. Court of Appeals for the Seventh Circuit vacated a district court’s approval of a novel class action settlement between Clearview and individuals alleging that Clearview violated privacy laws by “scraping” their public photos from the internet to improve the company’s facial recognition technology. The Seventh Circuit held that the absence of separate class representatives for the nationwide class and the state-specific subclasses was a “key procedural problem” requiring vacatur of the settlement.

This decision is an important reminder that courts evaluating class settlements will closely scrutinize whether all classes and subclasses have adequate structural protections, including separate class representatives with separate counsel in cases where class members may have divergent interests.

Background

Clearview operates “a search engine for faces,” whereby the company scrapes photographs of individuals from public websites and analyzes them using artificial intelligence to generate “facial vectors” reflecting the geometry of a person’s facial features. Id. at *3. A search of Clearview’s database using a photograph of a person returns other photographs of that same person, together with links to the websites where the photographs were located.

The case arose from 11 putative class actions filed in federal district courts against Clearview and related defendants, which were ultimately transferred to the Northern District of Illinois for coordinated pretrial proceedings.

After the appointment of interim lead class counsel, Plaintiffs filed a consolidated complaint asserting claims for declaratory judgment and unjust enrichment on behalf of a Nationwide Class comprised of all individuals in the United States whose biometric data was or is contained in Clearview’s database. Plaintiffs also asserted claims under the Illinois Biometric Information Privacy Act (“BIPA”) on behalf of an Illinois Subclass; claims under various California laws on behalf of a California Subclass; claims under New York’s civil rights code on behalf of a New York Subclass; and claims under the Virginia Computer Crimes Act and for statutory commercial misappropriation of identity on behalf of a Virginia Sub-class.

The parties first engaged in settlement discussions in 2022, which failed because Clearview lacked the financial ability to make the substantial immediate payments sought by Plaintiffs. But after mediating the case in 2023, the parties agreed to a settlement structure under which class members would acquire equity stake in Clearview. Specifically, the settlement provided that upon an initial public offering or a merger, consolidation, or sale of Clearview, the Class would receive a payment equivalent to a 23% equity stake in Clearview as of September 6, 2023. Alternatively, in lieu of that payment, the court-appointed settlement master could either (i) sell the settlement stake to a third party for a “commercially reasonable price” or (ii) make a cash demand equal to 17% of Clearview’s revenue from the date of final approval of the settlement until the date of such demand. Id. at *7.

The settlement stake itself would be divided unevenly among Class members based on the specific forms of relief available under the relevant state laws: ten shares to each member of the Illinois Subclass; five shares to each member of the California, New York, and Virginia Subclasses; and just one share to each member of the Nationwide Class. Notably, none of the eight original class representatives agreed to the settlement, so lead class counsel replaced them with four new representatives, each of whom belonged to one of the “favored” state-specific sub-classes.

After the District Court granted final approval, Objectors Robert Weissman and Rick Claypool, both members of the Nationwide Class, appealed. They argued that the settlement was not “fair, reasonable, and adequate” because (i) it did not provide injunctive relief, (ii) the future equity-stake and cash-demand fallback made the settlement’s value too uncertain, and (iii) the Nationwide Class lacked separate representation during the settlement negotiations.

The Seventh Circuit’s Decision

The Seventh Circuit vacated the District Court’s approval of the settlement and remanded the case for further proceedings.

The Seventh Circuit rejected the Objectors’ two substantive challenges to the settlement, concluding that a fair settlement did not necessarily require injunctive relief and that the uncertainty associated with the equity-based structure was not disqualifying because “uncertainty is inherent” in such settlements. Id. at *11, 16.

The Seventh Circuit, however, agreed with the Objectors’ third argument regarding the settlement being deficient due to the absence of a separate Nationwide class representative with separate counsel. The Seventh Circuit explained that class action litigation relies on “structural assurance of fair and adequate representation for the diverse groups and individuals affected.” Id. at *23 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 627 (1997)). One such “important structural feature” is the requirement that class representatives, who owe a fiduciary duty to absent class members, approve any proposed settlement. Id.

The Seventh Circuit emphasized that “[n]ot just any representative will do” and that the critical question is whether “the court can be confident that absent class members have been represented fairly.” Id. at *24-25. The Seventh Circuit concluded that the Nationwide Class lacked adequate representation because “none of the named class representatives was in a position to represent solely the interests of the Nationwide Class in allocating the settlement.” Id. at *29; see id. at *31 (“Appointment of separately counseled class representatives for identifiable, significantly different groups of claimants with fundamentally conflicting interests is Rule 23’s primary mechanism for such protection.”).

On this basis, the Seventh Circuit vacated the District Court’s approval of the settlement and remanded the case.

Implications For Companies

The Seventh Circuit’s decision in In Re Clearview AI, Inc. Consumer Privacy Litigation is a cautionary tale for companies structuring, or defending, class action settlements involving multiple classes or subclasses with potentially divergent interests. Where claimants fall into distinct groups with conflicting stakes in how settlement proceeds are allocated, courts will expect each group to have its own class representative with its own counsel at the negotiating table. A settlement that may be fair and reasonable on its face can be vacated if it lacks these structural safeguards, as without such protections a reviewing court cannot confirm that each class’s interests was independently considered during negotiations. Companies should keep this principle in mind at the outset of class settlement negotiations to avoid the possibility of a proposed class settlement failing on appeal due to the lack of necessary structural safeguards.

July 13, 2026July 13, 2026 by Gerald L. Maatman, Jr.

Ninth Circuit Revives Dishwasher Warranty Class Action Against Whirlpool, Reversing Dismissal Of Washington Consumer Protection Act Claim

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Elizabeth G. Underwood

Duane Morris Takeaways: On July 6, 2026, in Shellenberger v. AIG WarrantyGuard, Inc., et al., No. 25-1448 (9th Cir. July 6, 2026), Judges Christen, Hurwitz, and Bade of the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of a putative class action alleging that AIG WarrantyGuard, Inc. and Whirlpool Corporation violated the Washington Consumer Protection Act (“CPA”) in connection with a KitchenAid service plan. The Ninth Circuit held that the named Plaintiff plausibly alleged that the Defendants’ offer letter and service contract, taken together, had the capacity to deceive a reasonable consumer, and that the district court erred in resolving that fact-intensive question at the motion to dismiss stage.

This ruling serves as a cautionary tale for companies that market service plans, particularly where buyout provisions or qualifiers in the fine print may be read as cutting against the offerings set out in consumer offer letters.

Case Background

Plaintiff Hadassah Shellenberger (“Plaintiff”) filed a putative class action against AIG WarrantyGuard, Inc. and Whirlpool Corporation (collectively, “Defendants”), asserting a claim under the CPA, Wash. Rev. Code §§ 19.86.020, 19.86.093. Id. at 1. Plaintiff alleged that Defendants’ offer letter created the impression “that the KitchenAid Service Plan would provide repairs or replacements for covered malfunctions, with repairs performed by KitchenAid-certified technicians, at no out-of-pocket expense to her.” Id. at 3. Plaintiff further alleged that this impression was inconsistent with the terms of the service contract, which included a buyout option, exercisable at Defendants’ sole discretion, allowing Defendants to technically satisfy all obligations under the contract without ever providing a repair or replacement. Id.

The district court dismissed Plaintiff’s CPA claim, finding that she had failed to plausibly allege the first element of a CPA claim, namely, “whether the defendant has engaged in an unfair or deceptive act or practice.” Id. at 2. Plaintiff appealed the ruling to the Ninth Circuit. Id. at 1.

The Ninth Circuit’s Decision

The Ninth Circuit reversed and remanded, finding that the district court erred in dismissing Plaintiff’s CPA claim. Id. at 7. The Ninth Circuit determined that Plaintiff’s interpretation of the offer letter was “facially plausible” because the offer letter mentioned only repairs and replacements as modes of performance, while the buyout option in the service contract provided an alternative manner of performance that was “inconsistent with the advertised benefits.” Id. at 3.

The Ninth Circuit rejected Defendants’ arguments that caveats in the offer letter and a fine-print disclaimer made Plaintiff’s interpretation implausible, finding the disclaimer language “insufficiently clear to change the apparent meaning of the offer letter’s representations.” Id. at 4 (internal quotation marks omitted). In addition, the Ninth Circuit similarly rejected the argument that qualifiers, such as “covered” and “where applicable”, defeated Plaintiff’s reading, concluding that those terms plausibly limited only the specific representations immediately next to them. Id. at 5.

Finally, the Ninth Circuit highlighted that whether a representation is misleading to a reasonable consumer is “a fact-intensive question not typically susceptible to resolution at the motion to dismiss stage.” Id. at 7.

Implications For Companies

This decision underscores that companies cannot avoid liability at the motion to dismiss stage under the CPA and other similar consumer protection statutes by simply pointing to fine-print disclaimers or qualifying words like “covered” or “where applicable.” Instead, courts will look to whether that fine print is clear enough to actually change the overall impression created by a company’s offer letter.

Overall, companies should audit consumer-facing offer letters and relevant marketing materials against discretionary provisions in service contracts to ensure consistency and compliance, especially where materials promise specific modes of performance, such as repair or replacement by certified technicians as seen in this case, that could be undercut by a seller’s discretion to satisfy its obligations through a different mechanism.

July 9, 2026July 9, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 155: Mid-Year Class Action Settlement Review & Analysis

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman and Jennifer Riley with their analysis of class action settlement data in the first six months of 2026 and their prognostications for trends shaping the remainder of the year.

Read the full mid-year settlement review in our previous blog post.

Episode Transcript

Jerry Maatman: Hello, everyone, and welcome to the next episode of the Class Action Weekly Wire. I’m Jerry Maatman, and with me today for the special mid-year review of class action settlements is Jen Riley. Jen, welcome back. Here we are halfway through 2026. What’s the big picture look like in the class action settlement space?

Jennifer Riley: Thanks, Jerry. Well, it’s been quite a ride. The data confirms essentially what we’ve been tracking since 2022. We are in a new era for class action litigation. Corporate defendants have been facing unprecedented settlement exposures. The total value of class action in government enforcement settlements hit $79 billion in 2025 that follows $66 billion in 2022, $51.4 billion in 2023, and $42 billion in 2024. As of mid-2026, we have already reached over $53 billion.

Jerry: That’s an enormous number. So, what we’re talking about is over $200 billion in just the last few years.

Jennifer: That’s exactly right. It is the largest multi-year span of settlements in U.S. legal history, and if current trends hold up, 2027 may end up ahead of the prior four years.

Jerry: Where are we seeing the biggest dollar amounts generated in these class action settlements?

Jennifer: Well, antitrust has historically had high settlements, and it is leading the charge this year with over $34 billion in settlements. Products liability and mass torts also have had big settlements this year, and has been no different in that area either, with almost $9 billion so far. Securities fraud settlements are also on track with last year’s numbers, and they’ve reached almost $2 billion so far.

Jerry: I know you track this space on a daily basis, 24-7. Any standout billion-dollar settlement cases come to mind?

Jennifer: So, there have been a few major ones. I would say the In Re College Athlete NIL Litigation is a big one. That one hit $2.78 billion alone. It finally gave athletes retroactive compensation for missed name, image, and likeness opportunities. So, that’s a historic shift in the landscape there. Also, worth noting that Purdue Pharma’s $7.4 billion opioid-related settlement. Just last week, Purdue announced that it is preparing to send an updated bankruptcy plan and proposed settlement to a vote following broad sign-on by all U.S. states and territories.

Jerry: These seem to be landmark figures. Are we seeing any high numbers of billion-dollar cases in and of themselves?

Jennifer: We are. So, there have been three billion-dollar settlements so far in 2026. That brings us to 45 total settlements over a billion dollars since 2022. That is the most in any four-and-a-half-year period ever.

Jerry: By your examination and analysis, are there any particular industries or sectors that are showing either surprising or emerging exposures in this area?

Jennifer: Great question. Data breach and privacy settlements have become increasingly prominent. Apple agreed to a $250 million settlement in a class action to resolve claims alleging that it misled millions of iPhone buyers by falsely touting AI capabilities for its Siri Voice Assistant 2024. Also, government enforcement settlements are on the rise. One of the billion-dollar settlements so far this year is an agreement with the New Jersey Department of Environmental Protection and EI DuPont to resolve the state’s claims over contamination caused by the manufacture and discharge of forever chemicals.

Jerry: Let’s talk antitrust. You referred to that before. What’s the headline here?

Jennifer: So, the antitrust sector is very active, with notable cases against the NCAA, as I mentioned earlier, as well as Visa, MasterCard, and RealPage. There is a sustained focus on wage suppression and market manipulation. Those have been key areas of concern for regulators, as well as for plaintiffs.

Jerry: Are you seeing the same sort of similar energy from the Planum sparred compared to past years?

Jennifer: Absolutely. In fact, the size and pace of these settlements suggests that plaintiffs’ attorneys are pushing harder than ever, likely encouraged by that sheer size of recent wins.

Jerry: When you look at the trends and the data analytics, do you see any areas that are cooling off in 2026?

Jennifer: Great question. So, civil rights settlements have been fairly low this year. We’re also seeing some slowdown in TCPA-related cases, although final settlement approval for $28 million was granted in a case against SiriusXM Radio to resolve claims alleging that it made telephone calls to people on the Do Not Call Registry, or Sirius’ internal Do Not Call Registry. But overall, most sectors are either holding steady or are growing.

Jerry: Any closing thoughts to what should be uppermost on the mind of corporate counsel in this area?

Jennifer: Yeah, so I would say the bottom line is that corporate defendants are operating in a legal environment where large-scale class actions, whether driven by consumers, employees, investors, or regulars, are pretty much a constant and a very costly risk. We’re in a high-stakes phase of class action litigation, and there’s really no indication that it’s slowing down or going to slow down in the foreseeable future.

Jerry: Well, Jen, thanks as always for your insights, and thanks to our listeners for tuning in. We will be sure to keep you updated with new developments on these settlement numbers. It sounds like for the upcoming Duane Morris Class Action Review – 2027 edition, is going to be a must-read.

Jennifer: I think it definitely will be. Thanks, Jerry, and thank you to our listeners.

July 7, 2026July 7, 2026 by Gerald L. Maatman, Jr.

FAA Exemptions Now Incorporated Into California Law

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

Duane Morris Takeaways: On June 30, 2026, Governor Newsom signed Assembly Bill 2155 (AB 2155), which amends California Code of Civil Procedure section 1281 to provide that any arbitration agreement deemed unenforceable under the Federal Arbitration Act (FAA) is likewise unenforceable under the California Arbitration Act (CAA). The amendment is designed to align California law with federal law by ensuring that the same limitations, exceptions, and exemptions governing the enforceability of arbitration agreements under the FAA also apply under the CAA.

Overview

AB 2155 expressly incorporates two significant FAA exemptions into the CAA, including: (1) the “transportation worker” exemption, which applies to contracts of employment for seamen, railroad employees, and other classes of workers engaged in foreign or interstate commerce; and (2) the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which renders predispute arbitration agreements unenforceable with respect to claims involving sexual assault or sexual harassment disputes.

AB 2155 becomes effective on January 1, 2027, and the legislation contains no indication that it applies retroactively. Prior to this amendment, employers frequently argued that even if the FAA did not govern an arbitration agreement, the agreement remained enforceable under the CAA because California law did not recognize the FAA’s transportation worker exemption. AB 2155 eliminates that argument. Beginning January 1, 2027, if an arbitration agreement is unenforceable under the FAA due to the transportation worker exemption, it will likewise be unenforceable under the CAA.

Implications for Employers

Employers, particularly those whose operations involve interstate commerce, should review their arbitration agreements and dispute resolution strategies in anticipation of AB 2155’s effective date. The amendment is likely to increase litigation challenging the enforceability of arbitration agreements, including class and representative actions brought by transportation workers and claims falling within the scope of the EFAA.

July 7, 2026July 7, 2026 by Gerald L. Maatman, Jr.

DMCAR Mid-Year Review – 2026/2027: FLSA Conditional Certification Rate Drops, And So Far In 2026 Courts Are Granting Less Class Certification Motions Overall Compared To 2025

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

Duane Morris Takeaway: In the first half of 2026, across all major types of class actions, courts issued rulings on more than 155 motions to grant or deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 97 rulings, with an overall success rate of 63%. In contrast, comparing apples to apples, in the first half of 2025, courts issued rulings on more than 211 motions to grant or deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 145 rulings, with an overall success rate of 69%.

Percentages for year over year rulings for 2022 to 2025 are below. Across all major areas of class action litigation in 2025, courts issued rulings on 435 motions for class certification. Courts granted 297 motions for class certification in whole or in part, a rate of approximately 68%. In 2024, courts issued rulings on 432 motions to grant or to deny class certification. Of these, plaintiffs succeeded in obtaining or maintaining certification in 272 rulings, for an overall success rate of 63%. In 2023, by comparison, courts issued rulings on 451 motions to grant or to deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 324 rulings, an overall success rate of nearly 72%. In 2022, courts issued rulings on 335 motions to grant or to deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 247 rulings, an overall success rate of nearly 74%.

2022 – 74%
2023 – 72%
2024 – 63%
2025 – 68%
2026 – 63% (Mid-Year)

In 2026, the number of motions that courts considered varied significantly by subject matter area, and the number of rulings varied across substantive area:

The following list summarizes the results in each of ten key areas of class action litigation.

FCRA – 100% granted / 0% denied (2 of 2 granted / 0 of 2 denied)
TCPA – 100% granted / 0% denied (2 of 2 granted / 0 of 2 denied)
RICO – 100% granted / 0% denied (1 of 1 granted / 0 of 1 denied)
WARN Act – 100% granted / 0% denied (1 of 1 granted / 0 of 1 denied)A
Security Fraud – 80% granted / 20% denied (8 of 10 granted / 2 of 10 denied)
Antitrust – 71% granted / 29% denied (5 of 7 granted / 2 of 7 denied)
Consumer Fraud – 71% granted / 29% denied (10 of 14 granted / 4 of 14 denied)
Civil Rights – 65% granted / 35% denied (13 of 20 granted / 7 of 20 denied)
ERISA – 64% granted / 36% denied (9 of 14 granted / 5 of 14 denied)
FLSA / Wage & Hour (Conditional Certification) – 58% granted / 42% denied (39 of 67 granted / 28 of 67 denied)
Discrimination – 50% granted / 50% denied (2 of 4 granted / 2 of 4 denied)
FLSA / Wage & Hour (Decertification) – 50% granted / 50% denied (1 of 2 granted / 1 of 2 denied)
Privacy – 44% granted / 56% denied (4 of 9 granted / 5 of 9 denied)
Products Liability / Mass Torts – 0% granted / 100% denied (0 of 1 granted / 1 of 1 denied)
Data Breach – 0% granted / 0% denied (no class certification rulings in 2026)

The plaintiffs’ class action bar obtained 100% success rates in four areas, FCRA, TCPA, RICO, and WARN. There have only been two FCRA and TCPA certification rulings in 2026, and one each for RICO and WARN, which were all granted by the court for a 100% success rate. In cases alleging securities fraud violations, plaintiffs succeeded in obtaining orders certifying classes in 8 of 10 rulings, for a success rate of 80%. In cases alleging antitrust violations, plaintiffs managed to obtain class certification rulings in 5 of 7 rulings issued during the first half of 2026, a success rate of 71%. And in wage & hour litigation, plaintiffs were not nearly as successful as in previous years. They succeeded in obtaining orders certifying classes and/or collective actions in 39 of 67 rulings issued during 2026, a success rate of only 58%.

Courts Issued More Rulings In FLSA Collective Actions and Wage & Hour Class Actions Than In Any Other Areas Of Law

For the first half of calendar year 2026, courts issued more certification rulings in FLSA collective actions and wage & hour class actions than in other types of cases. Plaintiffs historically have been able to obtain conditional certification of FLSA collective actions at a high rate, which surely has contributed to the number of filings in this area. Of the 67 rulings addressing first-stage motions for conditional certification, the court granted 39, for a success rate of a much lower than typical 58%

In contrast, from January 1 to July 1, 2025, issued 74 rulings. Of these, 71 addressed first-stage motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 3 addressed second-stage motions for decertification of collective actions. Of the 71 rulings that courts issued on motions for conditional certification, 58 rulings favored plaintiffs, for a success rate of 82%.

At the decertification stage, courts generally have conducted a closer examination of the evidence and, as a result, defendants historically have enjoyed an equal if not higher rate of success on these second-stage motions as compared to plaintiffs. The results so far in 2026 have not supported that typical success. There have only been 2 rulings thus far that courts issued on motions for decertification of collective actions, and only 1 ruling favored defendants, for a success rate of 50%.

An analysis of the rulings demonstrates that a disproportionate number emanated from traditionally pro-plaintiff jurisdictions, including the judicial districts within the Second Circuit (16 decisions) and Ninth Circuit (14 decisions), which include New York and California, respectively.

Takeaways From Certification Statistics Midway Through 2026

Notable thus far at the halfway point of the year, there have been a very small number of rulings emanating from the Fifth and Sixth Circuits (2 and 1 decisions, respectfully), which was true in 2025 as well. There have overall been less rulings issued by the courts, and at a lower success rate than previous years.

We will continue to track class certification trends in 2026 and will report on final numbers in the Duane Morris Class Action Review – 2027, which will be published in the first week of January. Stay tuned!

July 6, 2026July 6, 2026 by Gerald L. Maatman, Jr.

Key Insights Into The EEOC’s Draft Strategic Plan For FY 2026-2030

By Gerald L. Maatman, Jr., Jamar D. Davis, and Olga A. Romadin

Duane Morris Takeaways: On July 1, 2026, the U.S. Equal Employment Opportunity Commission released a preliminary draft of its 2026-2030 Strategic Plan. The draft sets forth the EEOC plans to prevent and address employment discrimination via improved procedures and key performance metrics, expand outreach and training activities, and improve internal processes via talent retention and use of technology that improves efficiency. The four-year plan was published on the regulations.gov webpage and is open for comment until July 19, 2026. Even if employers do not submit comments, they would be well-advised to review the draft and final Strategic Plan once it is announced because it provides a window into the EEOC Commissioners’ thinking for how the agency will use its resources to redress and deter workplace discrimination.

Introduction

Every four years, the EEOC prepares a Strategic Plan that guides its anti-discrimination enforcement priorities. The 2026-2030 Strategic Plan newly published on the regulations.gov webpage gives significant insight into specific goals and metrics that the agency will measure its performance by in the next several years. The three goals of the draft Strategic Plan and their significance are critical information for employers to understand in navigating interpretations and compliance with EEOC regulations and guidelines.

Operational Improvements And Performance Metrics Sought By The EEOC

The 2026-2030 Strategic Plan draft signals that the EEOC will focus its operations on three key areas. First, the EEOC aims to increase the number of favorable outcomes and to seek non-monetary relief where appropriate. For its matter outcomes, the EEOC aims to obtain at least one million dollars in monetary relief for select systematic investigations, to favorably resolve at least ninety percent of its enforcement lawsuits, and ensure its hearings, investigations, and appears meet or exceed unspecified metrics. (Draft Strategic Plan at 14-16.) On this point, the draft Strategic Plan explains that the EEOC will use its prosecutorial discretion to focus on prioritizing the investigation, litigation, and resolution of complex cases. (Id.) In addition to seeking monetary relief, the EEOC aims to also seek non-monetary relief. The draft Plan explains the EEOC’s view that this type of relief could encompass hands-on training for employers and workers, implementing discrimination deterrence practices, and monitoring. (Id.)

The EEOC additionally aims to “achieve[] targeted equitable relief and at least $1 million in monetary relief” at a rate of 80% of its systemic investigations where cause is found. (Id.) The draft Strategic Plan states that the emphasis here is on cases with broad overall impact and relief for employees impacted by systemic discriminatory patterns, practices, or policies. (Id.)

Further, “the EEOC will make significant progress toward enhanced monitoring of conciliation agreements,” with the goal of publishing developments of its achievements for each year. (Id.) The Strategic Plan explains that improved training, enhanced tracking, and streamlined reporting are crucial aspects of this point. (Id.)

With regards to employees of the federal government, the draft Strategic Plan outlines a baseline measurement for cabinet-level agency compliance with Equal Employment Opportunities. (Id. at 16.) This includes improvements in processing complaints, approving affirmative action plans, and establishing compliance with the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020 through timeliness. (Id.) Reasoning that the federal government is the largest employer in the country, the draft Strategic Plan notes that “reducing unlawful employment discrimination in the federal sector is an integral part of combatting employment discrimination in the nation’s workplaces,” and thus will have a great impact on private sector employers. (Id.)

The EEOC aims to have “at least 90% of completed investigations and conciliations, hearings, and federal appeals meet or exceed criteria” implemented in the Quality Practices Plan (“QEP”) for each program. (Id.) Building on the EEOC’s prior Strategic Plan’s QEP, the Commission states that the quality targets for resolving cases without litigation paved a way to success when implemented rigorously. (Id. at 17.) Further, the EEOC will seek to assess the current status of its previous goals and update them as needed in FY 2027-2030. (Id.)

Next, the EEOC plans to broaden its outreach and training activities to ensure that employees know their rights, and that employers are equipped with the tools necessary to preclude discrimination. (Id. at 18-20.) The action items for this goal include use of social media engagement, the implementation of three innovative means to conduct outreach, updating training materials to be user-friendly, and tracking the effectiveness of each outreach effort. (Id. at 19, 22.)

The EEOC additionally seeks to improve its accessibility through updating its technological capabilities. (Id. at 17.) The priority outlined in its seventh measure highlights reducing processing time and looks to speed up the charge filing process following intake, with the ultimate goal of reducing pending cases in the long-term. (Id.)

Finally, the EEOC will strive to improve its overall operations via three distinct areas of focus, which include (1) personnel, (2) services, and (3) financial efficiency. The EEOC would like to improve its operations with regards to its employees by maintaining staffing levels at or greater to 95% of the FTE baseline, invest in in-person trainings, and allow for select employees to participate in leadership development programs. (Id. at 25-26.) For its services, the EEOC will issue feedback surveys to assess areas of growth for the intake process, outreach and training, and mediation services offered, then implement process improvements to targeted areas. (Id. at 27.) For budget concerns, each program area will strive to meet operating constraints and meet all submission deadlines. (Id.)

Implications For Employers

The EEOC’s FY 2026-2030 draft Strategic Plan is a document that provides insight into the direction the agency will take to improve how it functions, and where it will focus the majority of its resources. Knowing what to expect from the Commission over the next four years places employers at an advantage when it comes to contingency planning and updating workplace discrimination policies.