Class Action Defense

April 3, 2025April 3, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 95: Key Trends In TCPA Class Actions

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

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

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

Episode Transcript

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

Ryan Garippo: Thanks for having me, Jerry

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

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

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

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

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

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

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

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

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

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

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

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

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

April 1, 2025 by Class Action Defense

Announcing The Second Edition Of The Duane Morris TCPA Class Action Review!

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

Duane Morris Takeaway: The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., has long been a focus of class action litigation. Since the TCPA was enacted 30 years ago, the methods and technology that businesses use to engage and interact with customers has evolved and changed. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.

To that end, the class action team at Duane Morris is pleased to present the 2025 edition of the TCPA Class Action Review. We hope it will demystify some of the complexities of TCPA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with TCPA class action litigation.

Click here to bookmark or download a copy of the TCPA Class Action Review – 2025 e-book.

Stay tuned for more TCPA class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

March 28, 2025 by Gerald L. Maatman, Jr.

No Shot at Class Certification – Pennsylvania Federal Court Rules that Company Review of COVID-19 Vaccine Exemption Requests Requires Individualized Inquiries Not Suitable For Class Treatment

By Gerald L. Maatman, Jr., Shannon Noelle, and Anna Sheridan

Duane Morris Takeaways: In Meinert et al. v. Port Authority of Allegheny County, Case No. 2:22-CV-01736 (W.D. Pa. 2025), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania denied class certification for a class of former transit company employees that were allegedly denied medical and religious exemptions to an employer-mandated COVID-19 vaccination policy. In so doing, the Court highlighted opportunities for defendants to defeat class certification by offering proof that the proposed class is amenable to ordinary joinder and that individualized inquiries predominate over common ones in terms of the qualified disabilities, sincerely held religious beliefs, and undue hardship. The ruling is a required read for corporate counsel facing workplace-related class actions.

Background

Former bus drivers and maintenance workers of Pittsburgh Regional Transit filed a class action complaint against the transit company in December 2022 alleging that a company policy issued in early 2022 requiring COVID-19 vaccinations for employees resulted in class members being denied a medical or religious exemption in violation of federal and state law prohibiting discrimination based on a disability or sincerely held religious belief. In total, the transit company received 350 accommodation requests related to its COVID-19 vaccination policy — 54 of which were for medical exemptions and 296 of which were for religious exemptions. The Company formed an Accommodation Review Committee that ultimately granted 13 medical exemption and 30 religious exemption requests to its vaccination policy.

The plaintiffs argued that the exemption review process was a “sham.” As it regards the medical exemption review process, the plaintiffs argued all proposed class members (the “medical exemption class”) were denied a medical exemption because their pre-existing conditions or disabilities did not show a contraindication to the CDC guidelines and the Company did not factor whether the conditions were a recognized disability under the ADA. As it regards its religious exemption review process, the plaintiffs maintained that the Company did not engage in any individualized analysis to determine undue hardship (the “religious exemption class”).

The Court’s Decision

In its Rule 23 analysis, the Court ruled that the medical exemption class failed to meet the numerosity and commonality prerequisites and that the religious exemption class failed to satisfy the commonality and predominance requirements for class certification. The Court found that as the plaintiffs presented no evidence to contradict the Company’s proof that only 12 individuals fell into the proposed medical exemption class, the Court opined that the plaintiffs failed to establish numerosity and demonstrate that joinder of all members was impracticable, particularly given that all class members were employees of the Company in Pittsburgh.

The Court also rejected plaintiffs’ generic arguments that class certification would promote consistent results and judicial economy. The Court further addressed the lack of commonality of the medical exemption class in dicta (as the lack of numerosity was sufficient to dismiss the proposed class) but nevertheless found that determining whether each member of the class had a cognizable disability would be an individualized inquiry that could not be considered on a class wide basis.

With respect to the religious exemption class, the Court found a lack of commonality given that the sincerity of a class member’s religious beliefs and the undue hardship to the Company are both individualized inquiries not suitable for class treatment. The Court rejected plaintiffs’ contention that the Company did not engage in any individual analysis to determine undue hardship, crediting an affidavit submitted by the Company detailing the Accommodation Review Committee’s process and attaching denial letters, which it reasoned illustrated that the Company considered undue hardship on an individual-by-individual basis. For the same reasons, the Court also reasoned that predominance was lacking as to the religious exemption class given that the sincerity of class members’ religious beliefs and undue hardship to the Company would both turn on individualized proof rather than evidence common to all class members.

Implications of the Decision

The Court’s decision underscores the opportunity for defendants to defeat certification by submitting evidence that proposed members of the class are limited and could be easily joined through ordinary joinder procedures and that the proposed class-wide proceeding is not apt to generate common answers as to whether class members are entitled to relief, as opposed to common questions.

Employers implementing similar review processes for exemption requests to company policies are well-advised to document and evidence an individualized process in evaluating and responding to such requests to defend against class action exposure.

March 28, 2025March 28, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 94: Key Trends In Products Liability & Mass Torts Class Actions

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

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

Episode Transcript

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

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

Betty Luu: Thanks for having me, Jerry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 27, 2025 by Justin Donoho

Pennsylvania Federal Court Disposes Of Adtech Class Action Due To Consent By Browsewrap

By Justin Donoho and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On March 24, 2025, in Popa v. Harriet Carter Gifts, Inc., 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), Judge William S. Stickman IV of the U.S. District Court for the Western District of Pennsylvania granted summary judgment for a retailer on a claim that the retailer’s use of website advertising technology violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”). The ruling is significant as it shows that in the hundreds of adtech class actions across the nation seeking millions or billions of dollars in statutory damages under various federal and state wiretap acts, implied consent may be found as a matter of law, thus disposing of the wiretap claim, where the defendant has posted a clearly labeled privacy statement at the bottom of the relevant webpage that discloses the use of adtech.

Background

This case is one of a legion of class actions that plaintiffs have filed nationwide alleging that Meta Pixel, Google Analytics, and other similar software embedded in defendants’ websites secretly captured plaintiffs’ web browsing data and sent it to Meta, Google, and other online advertising agencies.

This software, often called website advertising technologies or “adtech,” is a common feature on millions of corporate, governmental, and other websites in operation today. In adtech class actions, the key issue is often a claim brought under a federal or state wiretap act, a consumer fraud act, or the Video Privacy Protection Act, because plaintiffs often seek millions (and sometimes even billions) of dollars, even from midsize companies, on the theory that hundreds of thousands of website visitors, times $10,000 per claimant in statutory damages under the Federal Wiretap Act, for example, equals a huge amount of damages. Plaintiffs have filed the bulk of these types of lawsuits to date against healthcare providers, but they have filed suits against companies that span nearly every industry including retailers, consumer products, and universities. Several of these cases have resulted in multimillion-dollar settlements, several have been dismissed, and the vast majority remain undecided.

In Popa, the plaintiff brought suit against a retailer. According to the plaintiff, the retailer installed adtech called NaviStone OneTag on its public-facing website, thereby transmitting to Navistone, allegedly without the plaintiff’s consent, data about her visit to the retailer’s website where she added a set of pet stairs to her shopping cart. See id., 52 F.4th 121, 124-25 (3d Cir. 2022) (referenced in id., 2025 WL 896938). Based on these allegations, the plaintiff claimed that the retailer aided Navistone to intercept her communications in violation of the WESCA. Id., 2025 WL 896938, at *1.

The retailer moved for summary judgment, arguing that the plaintiff consented because of the nature of the internet or, alternatively, due to the retailer’s “Privacy Statement” linked at the bottom of the retailer’s webpage in a color contrasting with the website’s background, as is common on many websites, and which disclosed the retailer’s use of adtech. Id. at *2.

The Court’s Decision

The Court agreed with the retailer and held that the plaintiff impliedly consented to the retailer’s privacy policy, thereby defeating the plaintiffs’ WESCA claim.

Central to the Court’s holding was the WESCA’s statutory exception rendering it inapplicable “where all parties to the communication have given prior consent to such interception.” Id. at *5 (quoting 18 Pa. C.S. § 5704(4)). As the Court explained, “actual knowledge is not required under the mutual consent provisions of WESCA” and “‘prior consent’ can be demonstrated when the person being recorded knew or should have known, that the conversation was being recorded. This standard is one of a reasonable person, and not proof of the subjective knowledge of the person being recorded.” Id. at **5-6. In short, the Court reasoned that “the WESCA mutual consent exception focuses on a reasonable person standard.” Id. at *6.

To determine the reasonable person standard under the WESCA, the Court rejected the retailer’s first argument that any reasonable person using the internet impliedly consents to the use of adtech because of the nature of the internet. As the Court found, “the nature of the internet does not confer blanket implied consent to interception under WESCA.” Id. at *7. However, as the Court further found that “a reasonably prudent person has a lower expectation of privacy on the internet than on, for example, a telephone, which lacks the entire system of trackers, cookies, and algorithms commonly, if not ubiquitously, implicated in the use of a website.” Id. at *7.

Having found that WESCA’s reasonable person standard involves a lower expectation of privacy on the internet than on the telephone, the Court applied this standard to the relevant facts of the case. In doing so, the Court found that although the plaintiff did not actually read the Privacy Statement and therefore did not actually consent, if she were a reasonable person using the internet as the Court deemed her to be, then she had constructive knowledge as a matter of law due to a “browsewrap” agreement and therefore impliedly consented. As the Court explained, “Contracts formed on the Internet [include] ‘browsewrap’ agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen. Unlike a clickwrap agreement, a browsewrap agreement does not require the user to manifest assent to the terms and conditions expressly a party instead gives his assent simply by using the website.” Id. at *9.

In conclusion, the Court found a browsewrap agreement as a matter of law and ordered entry of a judgment in the retailer’s favor based on the following facts: (1) the privacy statement “was specifically labeled ‘Privacy Statement.’ [The plaintiff], or any other user could have easily seen the link and understood exactly what it contained”; and (2) the retailer’s placement of a link to the privacy statement on the bottom of the relevant webpage was “in line with common usage”; and (3) “The hyperlink to the Privacy Statement was reasonably conspicuous. It was displayed in a white contrasting font against a blue background on the bottom of every page of the website.” Id. at *11.

In sum, the Court found that “these factors compel a finding that a reasonable person in [the plaintiff]’s position had constructive notice of the terms of the Privacy Statement as a matter of law.” Id.

Implications For Companies

Popa provides powerful precedent for any company opposing adtech class action claims brought not only under the WESCA but also under any state or federal wiretap act, provided the company has a privacy policy sufficiently disclosing the use of adtech via a clearly labeled link on the bottom of the applicable webpage. Consider, for example, the numerous adtech class actions featuring a claim under the Federal Wiretap Act and seeking millions or billions of dollars in statutory damages. Although some courts have dismissed these claims on other grounds such as the lack of an interception or lack of criminal or tortious purpose (as discussed in our previous blog entry about a recent win for adtech defendants, here), other courts have refused to dismiss adtech claims brought under the Federal Wiretap Act, allowing them to proceed to costly merits, class certification, and expert discovery.

Popa provides an alternative path to victory in these cases, where applicable, which is to show that the plaintiff implied consented to the adtech via browsewrap.

March 25, 2025March 25, 2025 by Class Action Defense

Announcing The Duane Morris ERISA Class Action Review – 2025!

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

Duane Morris Takeaway: The surge of class action litigation filed under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq., over the last several years persisted in 2024, with class action litigators in the plaintiffs’ bar continuing to focus on challenges ERISA fiduciaries’ management of 401(k) and other retirement plans. Plaintiffs continue to assert that ERISA fiduciaries breached their fiduciary duties of prudence and loyalty by, among other things, offering expensive or underperforming investment options and charging participants excessive recordkeeping and administrative fees. Hundreds of fee and expense class actions have been filed since 2020, driven by a number of familiar plaintiffs’ class action law firms alongside some new entrants into the space.

To that end, the class action team at Duane Morris is pleased to present the 2025 edition of the ERISA Class Action Review. We hope it will demystify some of the complexities of ERISA class action litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with consumer fraud class action litigation.

Click here to bookmark or download a copy of the ERISA Class Action Review – 2025 e-book.

Check out our recent Class Action Weekly Wire podcast episode here on ERISA class action trends.

March 21, 2025March 21, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 93: Key Trends In ERISA Class Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associates Jesse Stavis and Anshul Agrawal with their discussion of the key trends analyzed in the 2025 edition of the ERISA Class Action Review, including analysis of two major rulings and their significant impact on ERISA litigation in 2025.

Stay tuned for the publication of the ERISA Class Action Review on Tuesday, March 25.

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here on our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner with Duane Morris, and joining me today are my colleagues, Jesse and Anshul, and we’re here to talk about Episode 93 on class action issues involving ERISA. Welcome, gentlemen.

Jesse Stavis: Thanks, Jerry, always happy to be part of the podcast.

Anshul Agrawal: Yeah, thank you so much, Jerry.

Jerry: Today on our podcast we’re going to highlight our publication of the second edition of the Duane Morris ERISA Class Action Review. Jesse, can you share with our listeners a little bit about this publication?

Jesse: Absolutely. The surge of class action litigation filed under the Employee Retirement Income Security Act, or ERISA, over the last several years definitely persisted in 2024. Class action litigators in the plaintiffs’ bar continued to primarily focus on challenges to ERISA fiduciaries’ management of 401(k) and other retirement plans. The class action team at Duane Morris is pleased to present the ERISA Class Action Review – 2025, which analyzes the key ERISA-related rulings and developments in 2024, as well as the significant legal decisions and trends impacting this type of class action litigation for 2025. We hope the companies will benefit from this resource in their compliance with these evolving laws and standards.

Jerry: Well, certainly the subject matter of the book in terms of the key rulings in 2024 showed, I think, a mixed bag of results for both the defense bar and plaintiffs. Anshul, let’s talk a little bit about what you have identified as the biggest issues over the past 12 months, and that would be the increasing amount of class action litigation over 401(k) forfeiture issues. It’s certainly an area of concern for our clients, and we’re seeing some major developments. Could you share with our listeners your view of kind of the heart of these sorts of claims?

Anshul: Yeah, absolutely. So, the central issue here revolves around how employers handled forfeited 401(k) contributions. So specifically, the employers matching contributions when an employee leaves before they’re fully vested. Normally, if an employee leaves early, they forfeit these unvested funds, and many companies have been using this money to offset their own contributions in future years. However, there’s been a shift, because in 2024 we saw several class actions challenging this practice with plaintiffs, arguing that this forfeited money should instead be used to cover the administrative costs of the plan rather than reducing the employer’s future contributions. These claims have made it past motions to dismiss in several cases, including Perez-Cruet v. Qualcomm and Rodriguez v. Intuit. So, courts are increasingly finding that these claims may be valid under ERISA’s fiduciary duty standards.

Jerry: My take is that these cases are having real world consequences for people at companies that are in charge of managing 401(k) programs going forward. Jesse, do you think that these sorts of lawsuits are going to have lasting effects on the way in which employers treat these sorts of funds?

Jesse: Oh, definitely. The outcome of these cases could set new precedents. Courts have been indicating that companies might be violating their fiduciary duties if they’re not using forfeited funds for the benefit of plan participants. For example, in Perez-Cruet, the court found that Qualcomm’s use of forfeited funds for current employees’ accounts rather than administrative costs may have been a breach of fiduciary duty. Now this case, along with others like it, shows that companies could face real risks if they continue using forfeited funds solely to offset their own contributions. What’s particularly important here is the courts are saying that even if companies follow the plan’s documentation, they still have a duty to act in the best interest of the participants. This could definitely lead to a shift in how companies structure their 401(k) plans.

Jerry: I think it’s fascinating that we’re dealing with a statute that’s more than six decades old, but we’re bumping up against issues that have never been decided. Another thing that comes to my mind is the impact of socially and environmentally conscious investing, or what’s called ESG investing. And the big huge decision this year in the Spence v. American Airlines case. Anshul, can you comment on your take in terms of what was going on in that particular ruling?

Anshul: Yeah, sure. So, in the Spence case, a plaintiff challenged American Airlines’ investment decisions in the company’s 401(k) plan. The plaintiff argued that the plan’s fiduciaries breached their duties by selecting underperforming ESG funds and by choosing managers who prioritized these types of environmental and social goals over profitability. What’s notable here is that the plaintiff wasn’t just challenging the individual investments, but also the fund managers themselves for their ESG focus. The court found these claims plausible, allowing the case to move forward. So, this decision definitely has the potential to change how fiduciaries view ESG factors in their investment strategies, particularly when considering ERISA’s duty of prudence. If courts continue to allow these types of claims to proceed, it could lead to greater scrutiny of ESG investments in retirement plans.

Jerry: That to me is quite a headline and something that’s incredibly important to corporations and our clients to the extent that many are focused on ESG considerations, and this and the court’s ruling. That that might be a breach of fiduciary duties, seems to me to be a reordering of the playing field and the risks and compliance strategies when you’re looking in this area. Jesse, what would be your take on how this is going to play out in 2025

Jesse: Well, Jerry, I think that what makes Spence so interesting is that it highlights this tension between traditional profit-driven investing on the one hand, and socially conscious investments on the other. Now, in Spence, the court seemed to accept the argument that if ESG funds systematically underperform, fiduciaries could be seen as breaching their duty of prudence by investing in it. This opens up a new avenue for plaintiffs to challenge fiduciaries, and it’s something employers and investment managers will need to keep an eye on in the future. Now, we also saw some shifting regulatory perspectives here, especially with the Department of Labor’s rule allowing fiduciaries to consider ESG factors which is now under challenge. The Supreme Court’s Loper Bright decision which overturned Chevron deference could have significant implications for how courts evaluate these kinds of rules, and it might lead to more restrictive interpretations of fiduciary duties in the ESG context.

Jerry: Anshul, do you think that the Spence case is kind of a demarcation point where you’re going to see an increased focus by the plaintiffs’ bar and bringing class actions over this issue of putting notions other than profit first, and that that can translate into a breach of fiduciary duty?

Anshul: Yeah, I mean, that’s definitely possible. I think if other courts follow the lead of the Northern District of Texas, then we could see a rise in sort of these ESG-related lawsuits, particularly against employers or plan managers who prioritize these types of factors over pure financial performance. If more plaintiffs succeed in these claims, it could lead to more cautious approaches by fiduciaries when considering these ESG factors.

Jerry: I’ve always thought the business model of the plaintiffs’ class action bar is file a case, certify the case, then monetize the case by securing settlements. And 2024 certainly was a dramatic year when you talk about class action settlements. What about in the ERISA space in terms of how the plaintiffs’ bar did in taking down large-scale settlements?

Jesse: Well, Jerry, plaintiffs did very well in securing high dollar settlements in 2024, although not quite as well as in 2023. In 2024, the top 10 ERISA class action settlements totaled $413.3 million. This was a drop from 2023, when the top 10 settlements totaled $580.5 million.

Jerry: That’s still a lot of money, and that’s only the top 10, so, it dramatically illustrates the risk and compliance stakes for corporations in the ERISA class action space.

Well, thank you, gentlemen, for joining us on this week’s Class Action Weekly Wire and for providing us and lending us assistance in navigating the area of ERISA class actions, which is certainly at the top of the agenda for most corporations in terms of compliance activity.

Jesse: Thanks for having me, Jerry, and thanks, as always, to all the listeners.

Anshul: Thank you so much, Jerry, and thank you to everyone for tuning into the Weekly Wire

March 19, 2025March 19, 2025 by Class Action Defense

A Not So Sweet Opinion For Chocolatiers As Judge Remands Child Labor-Tied Case Back To State Court

By Gerald L. Maatman, Jr., Rebecca Bjork, and Anna Sheridan

Duane Morris Takeaways: On March 13, 2025, in International Rights Advocates v. Mars Inc. et al., No. 1:24-CV-00894 (D.D.C. Mar. 13, 2025), Judge Royce Lamberth of the U.S. District Court for the District of Columbia ruled that the lawsuit filed by International Rights Advocates (IRA) against Mars Inc., Cargill Inc., and Mondelez International Inc. was not properly removed as it did not meet the “amount in controversy” prong of diversity citizenship and could not be aggregated. At the same time, the Court denied IRA’s Motion for Attorneys’ Fees and Costs, finding that the removal was not objectively unreasonable, as there had not yet been any “’clear, controlling case law from the D.C. Circuit on non-aggregation in the DCCPPA [D.C. Consumer Protection Procedures Act] context.” Id. at 20. The decision melted away the companies’ hopes of dodging local jurisdiction and set the stage for a potentially bittersweet legal battle.

Case Background

IRA filed this lawsuit in 2023, claiming that Mars, Cargill, and Mondelez sugarcoated their efforts to prevent child labor in their cocoa supply chains, and mislead consumers about the ethical sourcing of their chocolate products. IRA then filed an Amended Complaint alleging only misrepresentation in violation of the DCCPPA, invoking the private attorney general or representative-action provision, which authorizes a public interest organization to bring an action challenging an unlawful trade practice on behalf of itself and the “general public.” IRA sought an injunction requiring the defendants to correct their allegedly misleading public statements. The defendants then removed the case to federal court, arguing that the cost of compliance with an injunction (product labeling, public messaging, or both) met the monetary threshold required for federal jurisdiction. However, the Court did not buy into that argument wholesale.

The Ruling in International Rights Advocates v. Mars, Inc.

Judge Lamberth ruled that the defendants failed to demonstrate that the financial stakes met the standard for federal jurisdiction. He found that, rather than counting the total compliance costs, the amount should be divided among the affected population. More importantly, this case clearly set out a standard that a representative action under the DCCPPA brought on behalf of the general public cannot aggregate damages by the total costs combined to the defendants. This case follows precedent set in Breakman v. AOL LLC, when the court held that compliance cost could be used to determine the amount in controversy in an action where separate and distinct claims are presented on behalf of multiple parties only when the cost running to each plaintiff meets the amount in controversy requirement.545 F. Supp. 2d 96, 106 (D.D.C. 2008).This led Judge Lamberth to remand the case back to the D.C. Superior Court, where the chocolatiers will have to litigate the representative action.

Implications For Companies

This ruling serves as cautionary tale for employers hoping to whisk cases away to federal court by piling on compliance costs. Courts are increasingly scrutinizing how these figures are calculated. For companies facing consumer protection claims, this decision signals that removing cases to federal court will not always be a piece of cake. Employers must be prepared for cases to remain in state or local court where procedural rules might not be as favorable.

March 18, 2025March 18, 2025 by Class Action Defense

Announcing The Second Edition Of The Duane Morris Products Liability & Mass Torts Class Action Review!

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

Duane Morris Takeaways: Clients, ranging from some of the world’s largest manufacturers and insurance companies to startup companies and individual inventors, turn to Duane Morris for counsel and representation in claims involving products liability and toxic torts. For years, Duane Morris has worked with clients to develop cost-containment and strategic litigation plans designed to minimize the risk, business disruption and potentially staggering cost of products liability and toxic tort litigation. Our goal is to provide value by acting as proactive counselors and advisors, rather than simply responding to particular problems in isolation. To that end, the class action team at Duane Morris is pleased to present the Products Liability & Mass Torts Class Action Review – 2025. This publication analyzes the key rulings and developments in 2024 and the significant legal decisions and trends impacting both product liability class action litigation and mass tort litigation for 2025. We hope that companies and employers will benefit from this resource and assist them with their compliance with these evolving laws and standards.

Click here to bookmark or download a copy of the Products Liability & Mass Torts Class Action Review – 2025 e-book.

Stay tuned for more products liability and mass tort class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

March 13, 2025March 13, 2025 by Justin Donoho

Federal Court Holds Illinois Genetic Privacy Claim Not Preempted By Federal Transportation Regulations

By Justin Donoho, Gerald L. Maatman, Jr., and Tyler Zmick

Duane Morris Takeaways: In Short v. MV Transportation, Inc., No. 24-CV-3019 (N.D. Ill. Mar. 10, 2025), Judge Manish S. Shah of the U.S. District Court for the Northern District of Illinois denied defendant’s bid to dismiss a claim brought under the Illinois Genetic Information Privacy Act (“GIPA”). In his ruling, Judge Shah acknowledged that U.S. Department of Transportation regulations require companies in the transportation industry (including defendant) to ensure their drivers satisfy certain physical qualification criteria. The Court nonetheless rejected defendant’s argument that the regulations preempt the GIPA because they do not specifically require employers to ask applicants about their family medical histories (which the GIPA prohibits). In other words, the Court denied defendant’s motion to dismiss because the GIPA does not make it “physically impossible” to comply with federal regulations.

Background

Plaintiff Kevin Short alleged that he applied for a position as a driver for Defendant MV Transportation, Inc., a company that provides paratransit services. As part of the application process, Plaintiff was required to complete a physical examination during which he was asked about his family medical history, including whether his family members had a history of high blood pressure, heart disease, or diabetes.

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

MV Transportation moved to dismiss the complaint on the basis that the Department of Transportation’s (“DOT”) regulations preempted Plaintiff’s GIPA claim. Specifically, MV Transportation argued that Plaintiff’s claim was barred under a “conflict preemption” theory because allowing the claim to proceed would force MV Transportation to choose between complying with the GIPA or complying with federal requirements to “conduct[ ] thorough physical examinations of its drivers.”

MV Transportation pointed to the Motor Carrier Safety Act for support, under which the DOT regulates commercial motor vehicle safety by promulgating “minimum safety standards” to ensure that “the physical condition of operators . . . is adequate to enable them to operate the vehicles safely” – including by requiring drivers to satisfy 13 “physical qualification criteria.” 49 U.S.C. § 31136(a)(3).

The Court’s Decision

In denying MV Transportation’s motion, the Court noted that conflict preemption applies only where “compliance with both federal and state regulations is a physical impossibility” or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 6-7 (citations omitted); see also id. at 6 (noting that “‘[i]nvoking some brooding federal interest’ is insufficient to establish preemption; instead, MV Transportation must identify ‘a constitutional text or a federal statute’ that displaces or conflicts with the state law”) (quoting Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 767 (2019)). The Court further observed that MV Transportation had the burden of overcoming the “presumption against preemption.”

In its ruling, the Court concluded that it is not physically impossible for MV Transportation to simultaneously comply with the GIPA and DOT regulations relative to Plaintiff’s pre-employment health screening because the DOT regulations do not specifically require any inquiry into a driver’s family medical history. MV Transportation asserted that DOT regulations nonetheless “contemplate[] that medical examiners may discuss” a person’s family medical history during a physical exam. The Court was not persuaded, however, stating that such a scenario is “not enough to suggest that compliance with GIPA and the federal regulations is ‘physically impossible.’” Id. at 9 (“The mere possibility that a medical examiner asks for information protected by GIPA while performing an examination does not demonstrate impossibility to comply with both federal and state law.”).

The Court similarly held that the GIPA is not an obstacle to the execution of Congress’s purposes, as reflected in the Motor Carrier Safety Act and DOT regulations. As support for this conclusion, the Court observed that the relevant DOL regulations and the GIPA serve different purposes – the regulations are meant to promote the safe operation of commercial motor vehicles, while the GIPA focuses on health information privacy.

Implications Of The Decision

Short v. MV Transportation is one of several recent decisions in which courts denied bids to dismiss GIPA claims at the pleading stage.

Given this litigation landscape and the statute’s strict penalty provision – under which statutory damages can quickly become significant ($2,500 per negligent violation and $15,000 per intentional or reckless violation, see 410 ILCS 513/40(a)(1)-(2)) – employers should ensure they comply with the statute regarding any health screenings they ask applicants or employees to complete (including by explicitly advising applicants and employees not to disclose their family medical histories during the screenings).