Class Action Defense

November 23, 2025November 23, 2025 by Gerald L. Maatman, Jr.

Illinois Supreme Court Imposes Stricter Standing Test For “No-Injury” Class Actions Premised On Statutory Violations

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

Duane Morris Takeaways: In Fausett v. Walgreen Co., 2025 IL 131444 (Nov. 20, 2025), the Illinois Supreme Court narrowly construed the private right of action set forth in the federal Fair Credit Reporting Act (FCRA), holding that because the FCRA does not explicitly authorize consumers to sue for violations, the law does not authorize individual lawsuits unless a consumer shows that a violation caused a concrete injury. Thus, at least for FCRA actions, a plaintiff must now allege a “concrete injury” in Illinois state courts similar to what a plaintiff must allege to establish Article III standing in federal courts. This is a significant development, as Illinois courts have not previously required “concrete-injury” allegations for statutory claims under the state’s more liberal standing test.

Fausett is therefore a must-read opinion that represents an obstacle for future plaintiffs pursuing “no-injury” claims premised on the FCRA, in addition to other federal statutes containing similar private rights of action.

Case Background

Plaintiff alleged that Defendant violated the Fair and Accurate Credit Transactions Act (FACTA) – a provision of the FRCA – by printing a receipt containing more than the last five digits of her debit card number. Plaintiff sought statutory damages for the alleged FACTA violation, though she did not claim the violation led to actual harm by, for example, a third party using the receipt to steal her identity.

Plaintiff moved to certify a class of individuals for whom Defendant printed receipts containing more than the last five digits of their payment card numbers. In granting class certification, the trial court rejected Defendant’s argument that Plaintiff had no viable claim due to lack of standing. The trial court reasoned that Illinois courts are not bound by the same jurisdictional restrictions applicable to federal courts and that the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, established that “a violation of one’s rights afforded by a statute is itself sufficient for standing.” Fausett, 2025 IL 3237846, ¶ 15. The Illinois Appellate Court affirmed the trial court’s class certification order, and Defendant subsequently appealed to the Illinois Supreme Court.

The Illinois Supreme Court’s Decision

The issue before the Illinois Supreme Court was whether standing existed in Illinois courts for a plaintiff alleging a FACTA violation that did not result in actual harm.

The Court began by distinguishing the standing doctrines applied in Illinois state courts vs. federal courts. The Court observed that Illinois courts are not bound by federal standing law and that Illinois standing principles apply to all claims pending in state court – even those premised on federal statutes.

The Court then identified the two different types of standing that exist in Illinois courts, including: (1) common-law standing, which – like Article III – requires an injury in fact to a legally recognized interest; and (2) statutory standing, which requires the fulfillment of statutory conditions to sue for legislatively created relief. See id. ¶ 39 (for statutory standing, the legislature creates a right of action and determines “who shall sue, and the conditions under which the suit may be brought”) (citation omitted). The Court further noted that a statutory violation, without actual harm, can establish statutory standing only where the statute specifically authorizes a private lawsuit for violations.

Turning to Plaintiff’s FACTA lawsuit, the Court determined that Plaintiff’s claim could not invoke statutory standing because the FCRA’s liability provisions “fail to include standing language. In other words, Congress did not expressly define the parties who have the right to sue for the statutory damages established in FCRA.” Id. ¶ 40; see also id. ¶ 44 (“the plain and unambiguous language” of the FCRA “does not state the consumer or an aggrieved person may file the cause of action”). Thus, because the FCRA is “silent as to who may bring the cause of action for damages,” Plaintiff’s FACTA claim “does not implicate statutory standing principles, and thus common-law standing applies to plaintiff’s suit.” Id.

As for common law standing, the Court concluded that Plaintiff’s claim did not satisfy Illinois’s common law standing test, under which an alleged injury, “whether actual or threatened, must be: (1) distinct and palpable; (2) fairly traceable to the defendant’s actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief.” Id. ¶ 39 (quoting Petta v. Christie Business Holdings Co., P.C., 2025 IL 130337, ¶ 18). The injury alleged must also be concrete – meaning that a plaintiff alleging only a purely speculative future injury lacks a sufficient interest to have standing.

The Court held that Plaintiff failed to allege or prove a concrete injury because she conceded that she was unaware of any harm to her credit or identity caused by the alleged FACTA violation, and she could not identify anyone who had even seen her receipts “beyond the cashier, herself, and her attorneys.” See id. ¶ 48. Thus, Plaintiff could only show an increased risk of identity theft – something the Court has found to be insufficient to confer standing for a complaint seeking money damages. Because Plaintiff lacked a viable claim due to lack of standing, the Court held that the trial court abused its discretion in granting Plaintiff’s motion for class certification.

Implications Of The Fausett Decision

Fausett will impact FCRA class actions in a significant manner by precluding plaintiffs from bringing certain “no-injury” class actions in Illinois state courts. Federal courts have regularly dismissed such claims for lack of Article III standing based on the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016).

Fausett now forecloses plaintiffs from refiling the same claims in Illinois state courts, leaving plaintiffs without a venue to prosecute no-injury FCRA claims in Illinois. Importantly, the Fausett decision will likely reach beyond the FCRA context, as other federal consumer-protection statutes contain liability provisions with private-right-of-action language similar to the language found in the FCRA.

November 20, 2025November 20, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 127: California Federal Judge Overrules Objections To The NCAA’s $2.78 Billion NIL Class Action Settlement

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and special counsel Samson Huang with their analysis of recent developments in the $2.78 billion settlement between the NCAA and college athletes to resolve name, image, likeness (“NIL”) compensation claims.

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, loyal blog listeners, for joining us again for this week’s edition of the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today from Los Angeles is my colleague, Samson Huang. Thanks very much for being on the podcast.

Samson Huang: Great to be here, Jerry. Thanks for having me.

Jerry: Today, we’re here to discuss a recent court ruling relating to settlement approval of a ginormous class action involving the NCAA and the Power Five conference members, requiring them to pay $2.8 billion worth of damages, characterized as “back pay,” to compensate student-athletes for the denial of name, image, and likeness – known as NIL – opportunities under prior NCAA eligibility rules. The settlement class, subject to certain exclusions, includes all D1 student-athletes who competed from 2016 to the present. Compensation will be distributed to account for the lost NIL, video game, and broadcast-related opportunities that were previously restricted under the NCAA rules.

The new compensation model will mirror elements, I believe, of professional sports leagues – perhaps marking the end of the era of “amateurs” in college athletics. But the settlement faced some legal impediments and challenges for objectors. Samson, what’s the latest from the courthouse as to what’s going on with this particular settlement approval process?

Samson: Sure, thanks, Jerry. The court’s recent order addressed seven separate objections filed by incoming members of the Injunctive Relief Settlement Class following the July 23, 2025, notice. Under the Settlement Agreement, these class members could object within 60 days of receiving notice. The objections were heard on November 6, 2025, and the court ultimately rejected every objection.

Jerry: Let’s, unpack that a little bit and talk about some of the specific objections, beginning with Katherine Ernst of Vanderbilt University. As I understand it, she had asserted some objections challenging the treatment of various benefits in the revenue-sharing pool cap, and objecting to the release of claims subject to the distribution in the Gross Settlement Fund.

Samson: That’s right, and the court ultimately rejected the arguments as duplicative of issues already addressed by the court in the final approval order. Ernst also raised new objections related to Title IX compliance and her school’s distribution of revenue-sharing payments, requesting court-imposed modifications to the Injunctive Relief Settlement.

Jerry: I thought it was interesting because the judge emphasized that it lacked authority to, in essence, rewrite the settlement agreement, which is what the Vanderbilt student issued. It cited a chestnut of Ninth Circuit caselaw, Hanlon v. Chrysler Corporation, in terms of the ability of a district court to review and approve or reject a class action settlement. So, in this particular situation, the Title IX claims were not released, and athletes may bring those claims independently, as I understand it.

Samson: Yes, that’s right, Jerry. And also, Ernst additionally asserted that adequacy of representation was lacking, because none of the named plaintiffs are actually current student-athletes. However, the court reiterated its prior holding that the named plaintiffs share the same overarching interest as all class members of securing a more competitive labor market for college athletes. Moreover, the court has since appointed Miller Moss, who is an active D1 athlete, as an additional class representative, so the concern wasn’t really a concern for the court.

Jerry: Another objection I found interesting was from a student-athlete from Liberty University in Lynchburg, Virginia, Gracelyn Laudermilch, and she had argued that class counsel, in essence, was asleep at the wheel, refused to assist her in filing objections and, thereby, that rendered class counsel inadequate. How did the court react to that particular challenge?

Samson: Well, the court rejected the theory. The court explained that class counsel do not represent objectors, and objectors may appear pro se representing themselves, or they may hire independent counsel. But that does not implicate the adequacy of Class Counsel’s representation during settlement negotiations. Laudermilch also argued that the roster-limits provisions were adopted without adequate input from the named plaintiffs. However, the court found no support for that contention in the record. Named plaintiff Grant House provided a declaration confirming regular consultation with Class Counsel during negotiations. And statements attributed to him on a podcast were not actually before the court. Laudermilch further challenged the adequacy of the notice program, asserting that children as young as eight years old should receive notice of the settlement because they may one day participate in D1 athletics. The court rejected that position as well, finding that Rule 23 and due-process standards require notice that is reasonable and practical, and it is not feasible to identify future athletes who have not yet been recruited. The approved notice program, in which incoming D1 athletes receive notice upon joining their teams, was found by the court to be fully adequate.

Jerry: Well, I teach youngsters and coach them in Little League baseball, and that would be something for an 8-year-old to walk up to me and say, ‘Mr. Maatman, I just got a notice from the court,’ so we’ll see how that works. I also thought that this particular athlete had challenged the roster-limit provisions on the grounds that athletes with DSA status were being cut, and the court held that she lacked standing because she herself had not been cut. And additionally, the DSA status had been intended to guarantee roster spots, but actually all it did is exempt affected athletes from roster limits when transferring to other D1 programs, and that raised another objector, and that was Reid Macdonald of Long Island University, who argued he was cut from the lacrosse team at his university, but not granted DSA status. How did the court react to that particular challenge?

Samson: Well, the court found that even assuming that his factual claims were accurate, that actually reflected a school-specific issue, and did not justify halting the nationwide settlement. The settlement required schools to identify DSAs in good faith, and to submit those lists to class counsel, who may address any inaccuracies.

Jerry: I know the final four objectors were from Cal Poly State University, and they were on the diving and swimming team, and their programs were eliminated after the university opted in. How did the court treat their objections?

Samson: Well, each objector argued that the Injunctive Relief Settlement caused or incentivized the program cuts, thereby harming their athletic opportunities and, in one case, the student’s athletic scholarship. Several objectors also raised concerns about Title IX compliance. Again, the court rejected each objection on the same basis. Essentially, D1 schools have always retained discretion to allocate financial resources and eliminate sports programs, and nothing in the injunctive relief settlement requires or encourages team cuts. Therefore, any injury resulting from program elimination stems from each institution’s own choice, not from the settlement. The court also reiterated that it cannot and does not have the power to modify the settlement to impose Title IX compliance mechanisms. And, because Title IX claims were not being released under the settlement, any affected athletes may pursue those claims separately.

Jerry: Pretty remarkable that a $2.8 billion settlement with extensive, injunctive relief was approved. Judge left it in place, it certainly represents a seismic shift in the regulation of college athletics and formalizes a compensation model for student athletes and introduces robust oversight with NIL activity. Remains to be seen if eighth graders on Little League baseball teams get a notice and what they do with it, but certainly quite a ruling when it comes to settlement approval orders in 2025.

Samson: Absolutely, Jerry, and colleges, collectives, and student-athletes must now carefully navigate this evolving regulatory environment. Institutions should consult with counsel to address these considerations and develop strategies, including draft template agreements, that adequately address all of these considerations to optimally position institutions to comply with and profit from this new opportunity.

Jerry: Well, thanks so much, Samson, for joining us on this week’s Class Action Weekly Wire, and breaking down a very complex yet important settlement. As our readers know, Chapter 20 of the Duane Morris Class Action Review contains an analysis of settlement approval rulings throughout federal and state courts and class actions over the past year. And by far and away, this one is one of the most complex and most significant in terms of what we’re going to discuss in that chapter – our book being launched in the first week of January of 2026. So, thank you, Samson, and thank you, all our listeners, for joining us this week.

Samson: Thanks, Jerry, it was a pleasure.

November 19, 2025November 19, 2025 by Gerald L. Maatman, Jr.

Duane Morris Class Action Review Cited In Three U.S. Supreme Court Briefs

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

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

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

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

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

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

The Briefing In Richards And Harrington

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

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

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

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

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

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

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

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

Duane Morris Class Action Review Citations

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

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

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

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

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

Implications For Employers

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

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

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

November 14, 2025November 14, 2025 by Gerald L. Maatman, Jr.

Third Circuit Affirms Dismissal Of CIPA Adtech Class Action Because A Party To A Communication Cannot Eavesdrop On Itself

By Gerald L. Maatman, Jr., Justin R. Donoho, Hayley Ryan, and Ryan Garippo

Duane Morris Takeaways: On November 13, 2025, in Cole, et al. v. Quest Diagnostics, Inc., 2025 U.S. App. LEXIS 29698 (3d Cir. Nov. 13, 2025), the U.S. Court of Appeals for the Third Circuit affirmed a ruling of the U.S. District Court for the District of New Jersey’s in dismissing a class action complaint brought by website users against a diagnostic testing company alleging that the company’s use of website advertising technology violated the California Invasion of Privacy Act (“CIPA”) and California’s Confidentiality of Medical Information Act (“CMIA”).

The ruling is significant because it confirms two important principles: (1) CIPA’s prohibition against eavesdropping does not apply to an online advertising company, like Facebook, when it directly receives information from the users’ browser; and (2) the CMIA is not triggered unless plaintiffs plausibly allege the disclosure of substantive medical information.

Background

This case is one of a legion of nationwide class actions that plaintiffs have filed alleging that third-party technologies (“adtech”) captured user information for targeted advertising. These tools, such as the Facebook Tracking Pixel, are widely used across millions of consumer products and websites.

In these cases, plaintiffs typically assert claims under federal or state eavesdropping statutes, consumer protection laws, or other privacy statutes. Because statutes like CIPA allow $5,000 in statutory damages per violation, plaintiffs frequently seek millions, or even billions, in potential recovery, even from midsize companies, on the theory that hundreds of thousands of consumers or website visitors, times $5,000 per claimant, equals a huge amount of damages. While many of these suits initially targeted healthcare providers, plaintiffs have sued companies across nearly every industry, including retailers, consumer products companies, universities, and the adtech companies themselves.

Several of these cases have resulted in multimillion-dollar settlements; others have been dismissed at the pleading stage (as we blogged about here) or at the summary judgment stage (as we blogged about here and here). Still, most remain undecided, and with some district courts allowing adtech class actions to survive motions to dismiss (as we blogged about here), the plaintiffs’ bar continues to file adtech class actions at an aggressive pace.

In Cole, the plaintiffs alleged that the defendant diagnostic testing company used the Facebook Tracking Pixel on both its general website and its password-protected patient portal. Id. at *1-2. According to the plaintiffs, when a user accessed the general website, the Pixel intercepted and transmitted to Facebook “the URL of the page requested, along with the title of the page, keywords associated with the page, and a description of the page.” Id. at *2-3. Likewise, when a user accessed the password-protected website, the Pixel allegedly transmitted the URL “showing, at a minimum, that a patient has received and is accessing test results.” Id. at *3.

Plaintiffs asserted that these transmissions constituted (1) a CIPA violation because the company supposedly aided Facebook in “intercepting” plaintiffs’ internet communications, and (2) a CMIA violation because the company allegedly disclosed URLs associated with webpages plaintiffs accessed to view test results along with plaintiffs’ identifying information linked to users’ Facebook accounts. Id. at *3.

The company moved to dismiss, and, in separate orders, the district court dismissed both claims. See 2024 U.S. Dist. LEXIS 116350; 2025 U.S. Dist. LEXIS 7205.

As to the CIPA claim, the district court found that CIPA “is aimed only at ‘eavesdropping, or the secret monitoring of conversations by third parties,’” and that Facebook was not a third party because it received information directly from plaintiffs’ browsers about webpages they visited. 2025 U.S. Dist. LEXIS 7205, at *7-8 (quoting In Re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 140-41 (3d Cir. 2015)). As to the CMIA claim, the district court found that plaintiffs alleged only that the company disclosed that a patient accessed test results but not what kind of medical test was done or what the results were. 2024 U.S. Dist. LEXIS 116350, at *15. Accordingly, the district court held that plaintiffs failed to allege the disclosure of “substantive” medical information as required under the CMIA. Id.

Plaintiffs appealed both rulings.

The Court’s Decision

The Third Circuit affirmed. Id. at *1.

On the CIPA claim, the Third Circuit explained that “[a]s a recipient of a direct communication from Plaintiffs’ browsers, Facebook was a participant in Plaintiffs’ transmissions such that [the company] did not aid or assist Facebook in eavesdropping on or intercepting such communications, even if done without the users’ knowledge.” 2025 U.S. App. LEXIS 29698, at *6. With no eavesdropping, “Plaintiffs’ CIPA claim was properly dismissed.” Id. at *7.

On the CMIA claim, the Third Circuit explained that “at most, Plaintiffs alleged that [the company] disclosed Plaintiffs had been its patients, which is not medical information protected by CMIA.” Id. at *8. Thus, the Third Circuit held that the district court properly dismissed the CMIA claim. Id. at *9.

Implications For Companies

Cole offers strong precedent for any company defending adtech class action claims (1) brought under CIPA’s eavesdropping provision where the third-party adtech company directly receives the information from users’ browsers and (2) brought under the CMIA where the alleged disclosure merely shows that a person was a patient, without revealing any substantive information about the person’s medical condition or test results.

The latter point continues to appear across adtech class actions. Just as the plaintiffs in Cole failed to plausibly allege the disclosure of substantive medical information, courts have dismissed similar claims where plaintiffs allege disclosure of protected health information (“PHI”) without actually identifying what PHI was supposedly shared (as we blogged about here). These decisions reinforce that adtech plaintiffs must identify the specific medical information allegedly disclosed to plausibly plead claims under the CMIA or for invasion of privacy.

November 13, 2025November 13, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 126: California Federal Court Slashes $28 Million Attorneys’ Fee In $150 Million Securities Fraud Class Action Settlement

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Daniel Spencer with their analysis of a California federal judge’s decision to reject a $28 million attorney fee request as part of a $150 million securities fraud class action settlement.

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

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners and readers, for being here again with us for the next episode of our weekly podcast, The Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining us today is Daniel Spencer, my colleague and partner from Duane Morris’ Los Angeles office. Welcome, Daniel.

Daniel Spencer: Thanks, Jerry. Great to be here.

Jerry: Today we’re talking about a pretty seminal ruling of a settlement and an attorneys’ fee award in litigation entitled In Re Zoom Securities Litigation in the Northern District of California. This was a case where the court gave preliminary approval to a $150 million settlement, but then during the final approval hearing took a hard look at a very hefty attorneys’ fees request from class counsel, whereby they asked for $28 million, or roughly 18.75% of the settlement fund. This would have translated into a multiplier under pertinent case law of over 10 times the amount of time actually spent. The court called this problematic. What’s your take on this, Daniel, from your viewpoint in practicing law in California?

Daniel: I’ll tell you, Judge Donato did not mince words on this one. He described the hourly rate of roughly $7,900 an hour as an “eye-watering figure”, commenting that it had no place in a straightforward securities class action. Instead, he went with the lodestar method, applied a multiplier of four, which is still pretty generous, and awarded $10.4 million in fees, plus an additional $262,000 in costs.

Jerry: So, this was a securities fraud class action brought under Section 10(b) of the Exchange Act and Rule 10b-5 of the SEC about Zoom allegedly misleading investors about its security practices. But the judge emphasized when considering the fee petition, that as class actions go, this one settled fairly quickly with a minimum of risk and toil, and that discovery was limited and actually no depositions had been taken, no motion for class certification was filed, no expert reports were produced, and there was no summary judgment practice.

Daniel: Yeah, that’s exactly right. And class counsel had reported approximately 3,500 hours of work, which is not insignificant, but the judge compared it to other work wherein the same firm had invested over 43,000 hours handling complex motions, depositions, and trial prep, and still received a 2.5 multiplier on its lodestar. So, here they wanted four times that multiplier for a much lighter workload.

Jerry: The judge made a very important statement about a principle that I think is key to class action jurisprudence, and that is that the court, when reviewing a settlement or reviewing a petition for attorneys’ fees, has in essence a fiduciary obligation to the class to protect them, especially where a defendant makes no objection to the plaintiffs’ application for an award of attorneys’ fees. As the judge put it, there’s a “heightened duty to peer into the provision and scrutinize it closely.” Was this an aberrational ruling, or is this something front and center in class actions in California?

Daniel: It’s absolutely front and center, and I’ll tell you that the judge reminded everyone that the courts have a duty to guard against these type of windfall profits in these megafund cases or those with settlements exceeding $100 million. In doing so, he stressed that the 25% benchmark that they’re used to seeing is simply not appropriate for those types of situations. 18.75% of $150 million, he said, would produce exactly the kind of disproportionate result the Ninth Circuit had warned against in similar settlements.

Jerry: The judge also touched upon something known in the law as the percentage of recovery factors that analyzes the results achieved, the risks to the lawyers, the non-monetary benefits accorded to the class, and the contingency nature of the case. And the judge said while this was a solid outcome, it wasn’t exceptional. The case didn’t break new legal ground or face unusual challenges, and the benefit to the class was entirely monetary and the risks were fairly routine for this sort of case.

Daniel: And that’s exactly right. The judge also pointed out that plaintiffs’ counsel’s own billing showed barely five hours spent on the class certification and notice, which is pretty extraordinary for a securities case. His takeaway was that 18.75%, which was requested, was a formulaic application of the benchmark. In megafund settlements, the court’s got to guard against that mechanical percentage that yield windfalls. The judge used the lodestar method and applied a generous multiplier of four, set the fee at $10,419,000, and also directed that 75% or about $7.8 million could be paid immediately with the remaining 25% to be held pending the post-distribution accounting. So even with a multiplier of four, every timekeeper down the line was effectively being compensated at $2,900 per hour, which is more than a healthy rate by any measure.

Jerry: In this case, class counsel also sought a service award for the lead plaintiff of $48,750. Most of the class action settlements we see, the service awards are around $5,000 to $12,000. How did the court come out on the request for the service award here?

Daniel: Yeah, so in this one, he relied directly on the Private Securities Litigation Reform Act, which prohibits incentive awards for lead plaintiffs in securities cases. A lead plaintiff can only recover reasonable costs and expenses, including lost wages. The declaration that plaintiff filed in support of that said he spent about 75 hours on the case and valued that at about $650 an hour. The court found no evidence tying that number to any actual costs or outcome.

Jerry: So, Daniel, what’s the big picture here for corporate practitioners when they’re looking at class action settlements or at the mediation table negotiating a class action resolution?

Daniel: So, really two lessons that you can take away from this case. First, don’t treat the 25% benchmark as a given, especially in these megafund settlements. And second, expect the judges to go through a rigorous lodestar cross-check, even in cases that are resolved efficiently. Judges are going to expect to see a clear correlation between the hours worked, complexity handled, and the fees requested by plaintiffs’ counsel.

Jerry: Well said, and thank you for your take on this case, Daniel. And thanks to our listeners for being here today. We’ll be breaking down this settlement and others in our upcoming Duane Morris Class Action Review scheduled for publication in the first week of January of 2026. So, thank you, Daniel, and thanks for all our listeners being with us today on our podcast.

Daniel: Thanks, Jerry. It’s a pleasure to be here.

November 11, 2025November 11, 2025 by Gerald L. Maatman, Jr.

Greetings From Texas: Annual ABA Conference On Class Action Litigation

By Gerald L. Maatman, Jr.

Duane Morris Takeaways: Recently we had the privilege of attending this year’s annual ABA conference on class action litigation. Cutting-edge issues under Rule 23 were the focus of discussion among session leaders and attendees. The consistent theme is that case law precedents are in a state of constant flux – and the “new normal” is “change…”

Key cutting-edge issues are summarized below in terms of top-class action issues for 2025.

Data Breach Class Actions

The focal point in class actions over data breaches is discovery of consultant work in the aftermath of a breach and whether the work product is privileged or not. Plaintiffs’ advocates asserted that discovery of facts is always allowed and that companies have complete control over the technology environment when remediation efforts are undertaken in the wake of a data breach. Defense proponents contended that such consulting expert work is a prime example of protected work product. Case law, however, is somewhat all over the lot and data breach litigation is increasing in scope and complexity.

This issue underscores what class action practitioners agreed upon – data breach class actions are exceedingly complex, raises vexing choice-of-law issues under state law, and are challenging in terms of managing the litigation process.

Trials In Class Actions

Once a rarity, trials in class actions are beginning to become more mainstream. A panel session on trying a class actions discussed how challenging such a trial is given the stakes and financial exposures in “big” lawsuits.

As an adjunct professor of law at Northwestern, I teach trial advocacy. The skillsets taught in my law school class resonated in this session – have an “elevator” presentation for the jury that boils down the complexities of the case into an easily understood explanation of the plaintiffs’ theories and the defendant’s defenses. Both plaintiffs and defense lawyers agreed that the ability to craft an effective “elevator” speech pays dividends in the successful prosecution and/or defense of a class action in a trial setting.

As a federal judge on the panel advised, “less is more” in terms of trying a complex dispute in a manner that engages the attention of a jury (and a judge).

Unresolved Rule 23 Issues

While many areas of class-wide ligation are in flux, the number one issue prompted agreement from all practitioners – the unresolved issue from Lab. Corp. v. Davis on the impact of uninjured class members on class certification and damages models prepared by experts in class cases. The “uninjured class member” issue continues to drive diverse outcomes and uncertainty relative to the concepts of Article III standing and predominance under Rule 23(b)(3).

Attendees agreed that the issue is ripe for U.S. Supreme Court review after the dismissal of the certiorari grant for jurisdictional issue in Lab. Corp.

Collective Action Certification Standards

The standard for conditional certification of a collective action under the Fair Labor Standards Act is in flux. In essence, there are four distinct standards depending on what circuit law applies. The majority standard is based on Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J. 1983).

For decades, many federal courts have relied on the two-step Lusardi approach for collective action certification. Under the Lusardi standard for conditional certification, plaintiffs only had to make a “modest factual showing” that they were victims of a common illegal policy or plan. Most courts applying this standard refused to weigh evidence or consider opposing evidence presented by the defendant. Such lenient notice standards allow plaintiffs to expand the size of a wage & hour lawsuit, significantly increasing pressure to settle, regardless of the action’s actual merits.

In the past four years, the Fifth and Sixth Circuit Courts of Appeal have found that Lusardi’s two step approach is inconsistent with the text of the FLSA. Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021); Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). In Swales, 985 F.3d at 443, the Fifth Circuit rejected Lusardi’s two-step approach outright, and required its district courts to “rigorously enforce” the FLSA’s similarity requirement at the outset of the litigation in a one-step approach. Similarly, in Clark, 68 F.4th at 1011, the Sixth Circuit adopted a comparable, but slightly more lenient standard, requiring the employee to show a “strong likelihood” that others are similarly situated to him or her before the district court can send notice.

In contrast, the Second, Ninth, Tenth, and Eleventh Circuits continue to either follow or allow the district court to adopt the two-step framework outlined in Lusardi. Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. 2025); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001); Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).

The Seventh Circuit, in a recent opinion written by Judge Thomas Kirsch, rejected the Lusardi framework but declined to go as far as Clark or Swales. The Seventh Circuit observed that the notice process should be facilitated by three guiding principles: (1) the timing and accuracy of notice; (2) judicial neutrality; and (3) the prevention of abuses of joinder. Richards v. Eli Lilly, 2025 U.S. App. LEXIS 19667, at *14 7(th Cir. Aug. 5, 2025). It reasoned that the Lusardi standard threatened the latter two principles by “incentivizing defendants to settle early rather than attempt to ‘decertify’ at step two . . . transforming what should be a neutral case management tool into a vehicle for strongarming settlements and soliciting claims.” Id. at * 17. Thus, the Seventh Circuit rejected Lusardi, but what to do in the alternative was a more difficult question.

The Seventh Circuit decided that rather than endorse the rigid standards of Clark or Swales, its approach would be guided by “flexibility” and an analysis that is not an “all-or-nothing determination.” Id. at *19. Indeed, a plaintiff must now “make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated.” Id. at *21. Or, in other words, a plaintiff must “produce some evidence suggesting that they and the members of the proposed collective are victims of a common unlawful employment practice or policy.” Id, at *21-22. To counter a plaintiff’s evidence, an employer “must be permitted to submit rebuttal evidence and, in assessing whether a material dispute exists, courts must consider the extent to which plaintiffs engage with opposing evidence.” Id. at *22. It is not clear, however, the burden a plaintiff must satisfy to refute the defendant’s evidence to move forward.

This brewing circuit split suggest that U.S. Supreme Court review is necessary to resolve this important issue.

November 10, 2025November 10, 2025 by Class Action Defense

Duane Morris Attorneys Ryan Garippo And George Schaller Selected For The Inaugural Edition of Class Action Updates’ List of “Premier Class Action Leaders of Tomorrow”

Duane Morris Takeaway: The Duane Morris Class Action Defense Group is pleased to announce that attorneys Ryan Garippo and George Schaller have been selected as honorees of the inaugural class of Class Action Updates’ Premier Class Action Leaders of Tomorrow Award, which recognizes 12 exceptional rising stars under the age 40 “who are redefining the frontiers of class action litigation through innovative strategies, landmark victories, and unwavering commitment to justice on both sides of the bar. Selected from a highly competitive pool of nominations, their groundbreaking work promises to inspire the next generation of litigators and fortify the pillars of the legal system.”

Kudos to Ryan and George on this well-deserved accomplishment!

November 7, 2025 by Gerald L. Maatman, Jr.

Ohio Federal Court Applies Sixth Circuit’s Heightened Standard To Deny Certification Of Overtime Claims For Alleged Unpaid Pre-Shift Work

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

Duane Morris Takeaways: In Arble v. East Ohio Gas Company, et al., No. 5:24-CV-747 (N.D. Ohio Nov. 3, 2025), Judge Benita Y. Pearson of the Northern District of Ohio denied the plaintiffs’ motion for court-facilitated notice to potential opt-in plaintiffs based on application of the Sixth Circuit’s “strong likelihood” standard for FLSA certification. As a result of the court’s ruling, the lawsuit will proceed based on the claims of only three plaintiffs. The decision is essential reading for defendants in the Sixth Circuit seeking to defeat a motion for certification of FLSA claims.

Case Background

Plaintiff filed a complaint on April 26, 2024, on behalf of a putative class and collective action of call center employees against an energy company that provides services throughout Ohio and the United States.

Plaintiff contended that the defendant had an unlawful practice of failing to pay wages to call center employees for time spent logging on and booting up their computer systems. She alleged that as a result of “off the clock” work prior to the start time of the shift, she and other call center workers worked in excess of 40 per workweek without receiving overtime pay. Plaintiff asserted claims of unpaid overtime in violation of the Fair Labor Standards Act and Ohio law.

Two other call center employees filed consent forms to become opt-in plaintiffs in the lawsuit.

On April 1, 2025, Plaintiffs filed a motion for court-facilitated notice to potential opt-in plaintiffs for purposes of their collective action per the FLSA. Defendants responded in opposition on April 22, 2025. The Court denied the motion as moot after granting Plaintiff’s separate motion to amend the complaint to add a party.

On July 11, 2025, Plaintiffs filed an amended motion for court-facilitated notice to a putative nationwide collective action of call center workers. Defendants responded in opposition on August 1, 2025. Plaintiffs did not file a reply in further support of the motion.

As Ohio law no longer permits plaintiffs to pursue class action (opt-out) claims for unpaid overtime under Ohio state law, the Plaintiffs’ motion addressed only the standard for court-facilitated notice of FLSA claims to potential opt-in plaintiffs. See Ohio Rev. Code 4111.10(C).

The Court’s Ruling

The Court explained the standard for court-facilitated notice of FLSA claims under the pivotal decision of the Sixth Circuit in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). In Clark, the Sixth Circuit abandoned the familiar two-step framework for conditional certification under the FLSA. In its place, the Sixth Circuit announced a new standard for facilitating notice to potential opt-in plaintiffs pursuant to 29 U.S.C. § 216(b) of the FLSA. Under the new standard, plaintiffs must demonstrate a “strong likelihood” that they are similarly situated to others with a showing “greater than the one necessary to create a genuine issue of material fact, but less than the one necessary to show a preponderance.” See Clark, 68 F.4th at 1010.

Upon application of the Clark standard, the Court concluded Plaintiffs fell far short of meeting their evidentiary burden to receive court-facilitated notice of their claims to others. The Court highlighted three primary deficiencies in Plaintiffs’ motion.

First, the Court found the Plaintiffs’ sworn declarations insufficient to show similarity to any other call center workers. The declarations failed to identify any other call center workers by name, failed to state any dates when Plaintiffs allegedly saw others performing pre-shift work, failed to explain how Plaintiffs knew that others experienced violations of the FLSA, and failed to connect Plaintiffs’ observations to any broader set of call center workers employed by Defendants inside or outside Ohio.

Next, the Court roundly rejected Plaintiffs’ reading of an employee handbook policy applicable to call center workers. Plaintiffs contended that a policy stating that workers must be on time and available to start work at the beginning of their shift supported their claims of widespread “off the clock” work in violation of the FLSA. The Court reasoned that a mere requirement for employees to be on time for work did not run afoul of the FLSA. Therefore, nothing on the face of the policy warranted court-supervised notice, nor did Plaintiffs explain how the policy proves a violation as to all potential opt-in plaintiffs.

Finally, the Court found no basis in the record to send notice to the membership of a nationwide collective action. Plaintiffs, who each worked in Ohio, presented no evidence of how Defendants staffed or managed any call center outside of Ohio.

The Court reasoned that absent evidence linking Plaintiffs’ allegations to other call center workers, facilitating notice to potential opt-in plaintiffs “would amount to claim solicitation that the Court declines to undertake.” Id. at 6.

Having concluded that no basis existed to expand the scope of Plaintiffs’ claims to potential opt-in plaintiffs under the Clark standard, the Court ordered that the case would proceed based on the claims of three Plaintiffs alone.

Implications For Defendants

In FLSA collective action litigation, the disposition of a motion for notice to potential opt-in plaintiffs is a central inflection point. The Court’s ruling in Arble illustrates the opportunity afforded to defendants in the wake of Clark to shrink the scope of an FLSA lawsuit by dissecting the purported evidence of similarity between the named plaintiff and other employees. Where plaintiffs rely on vague and conclusory allegations of widespread unlawful pay practices, defendants have an opportunity to defeat the plaintiffs’ efforts to expand the universe of party plaintiffs in the case, and thereby gain significant leverage in the lawsuit. Corporate counsel defending similar FLSA claims of unpaid overtime on behalf of a putative collective action ought to take note of the Court’s reasoning in Arble when preparing their defense strategy.

As the Northern District of Ohio’s ruling in Arble reflects, the Sixth Circuit’s “strong likelihood” standard under Clark poses a formidable hurdle for plaintiffs to overcome to obtain court-sanctioned notice to potential opt-in plaintiffs.

November 7, 2025November 7, 2025 by Justin Donoho

Data Security And Privacy Liability – Takeaways From The Sedona Conference Working Group 11 Midyear Meeting In Ft. Lauderdale

By Justin R. Donoho

Duane Morris Takeaways: Data privacy and data breach class action litigation continue to explode. At the Sedona Conference Working Group 11 on Data Security and Privacy Liability, in Fort Lauderdale, Florida, on November 6-7, 2025, Justin Donoho of the Duane Morris Class Action Defense Group served as a moderator for a panel discussion, “Legislative Drafting Considerations: Lessons from Colorado’s Privacy and AI Law Intersection.” The working group meeting, which spanned two days and had over 40 participants, produced excellent dialogues on this topic and others including website advertising technologies, judicial perspectives on privacy and data breach litigation, onward transfer of consumer PII in M&A and bankruptcy contexts, venue, forum, and choice of law in privacy and data breach class actions, privacy and data security regulator roundtable, revisiting notice and consent for facial recognition, and application of attorney-client privilege in the cybersecurity context.

The Conference’s robust agenda featured dialogue leaders from a wide array of backgrounds, including government officials, industry experts, federal and state judges, in-house attorneys, cyber and data privacy law professors, plaintiffs’ attorneys, and defense attorneys. In a masterful way, the agenda provided valuable insights for participants toward this working group’s mission, which is to identify and comment on trends in data security and privacy law, in an effort to help organizations prepare for and respond to data breaches, and to assist attorneys and judicial officers in resolving questions of legal liability and damages.

Justin had the privilege of speaking about lessons from the intersection of the Colorado Privacy Act (CPA) and Colorado AI Act (CAIA) and how these lessons might guide future legislatures when drafting AI and data privacy statutes. Highlights from his presentation included identifying lessons learned from the intersection of the CPA and CAIA and, among them, discussing some of the human steps a company may perform in using an AI hiring tool to avoid triggering the CPA’s opt-out right in factual scenarios where that right might apply, as those human steps are discussed in his article, “Five Human Best Practices to Mitigate the Risk of AI Hiring Tool Noncompliance with Antidiscrimination Statutes,” Journal of Robotics, Artificial Intelligence & Law, Volume 8, No. 4, July-August 2025.

Finally, one of the greatest joys of participating in Sedona Conference meetings is the opportunity to draw on the wisdom of fellow presenters and other participants from around the globe. Highlights included:

Experts of all stripes presenting a draft opus on advertising technologies that describes ways our laws could move beyond outdated statutes with draconian statutory penalties by focusing instead on any actual harms resulting from such technologies.
A lively dialogue among my panelists and other participants dissecting the Colorado Privacy Act, Colorado AI Act, and those statutes’ application to AI hiring tools in an effort to offer guidance to future legislators drafting similar statutes.
Federal and state judges offering tips for advocacy when presenting technical cybersecurity and data privacy issues to the court.
Panelists with different backgrounds discussing the law regarding when a company that has obtained personal data with consent can and cannot transfer the data in M&A and bankruptcy contexts.
Litigators from both sides of the “v.” debating venue, forum, choice of law, MDL, and CAFA issues in the context of privacy and data breach class actions.
State regulators discussing their increasing data privacy and cybersecurity departments and priorities for enforcement in these areas.
Data privacy lawyers and experts discussing the evolution of facial recognition technology and the need to tailor notice and consent processes to risks associated with the technologies and use cases involved.
Cybersecurity lawyers and experts discussing best practices for maintaining attorney-client privilege when responding to a cybersecurity incident.

Thank you to the Sedona Conference Working Group 11 and its incredible team, the fellow dialogue leaders, the engaging participants, and all others who helped make this meeting in Fort Lauderdale, Florida, an informative and unforgettable experience.

For more information on the Duane Morris Class Action Group, including its Data Privacy Class Action Review e-book, and Data Breach Class Action Review e-book, please click the links here and here.

November 6, 2025November 6, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 125: California Federal Court Dismisses Adtech Class Action For “Vague” Invasion Of Privacy Claims

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and senior associate Hayley Ryan with their analysis of a California federal court’s dismissal of an advertising technology (“adtech”) class action alleging violations of the federal Video Privacy Protection Act (“VPPA”), the California Invasion of Privacy Act (“CIPA”), and California’s Comprehensive Computer Data Access and Fraud Act (“CDAFA”).

Episode Transcript

Jerry Maatman: Thank you for being here again. My name is Jerry Maatman, and welcome to the next episode of our podcast series entitled The Class Action Weekly Wire. Joining me today is Hayley Ryan. Thanks so much for joining the podcast.

Hayley Ryan: Great to be here, Jerry. Thanks for having me.

Jerry: Today, we’re going to dive into a very interesting decision, the dismissal of claims in a case entitled DellaSalla v. Samba TV. Can you give our listeners an overview of what this case was about?

Hayley: Absolutely, Jerry. The case was decided on October 30, 2025, by Judge Jacqueline Scott Corley in the U.S. District Court for the Northern District of California. In short, the plaintiffs were a group of smart TV owners who alleged that Samba TV’s advertising technology invaded their privacy and violated a handful of statutes, including the federal Video Privacy Protection Act, or the VPPA, and two California laws: the California Invasion of Privacy Act, or CIPA, and the Comprehensive Computer Data Access and Fraud Act, or CDAFA.

Jerry: Well, those of us in the class action space know that this is the new so-called “tort of the day,” with what are known as adtech privacy class actions, being filed across the United States with hundreds, if not thousands, of these sorts of lawsuits. To you, and I know you follow this area closely, what stood out about this particular ruling?

Hayley: Sure, what’s significant here is the court’s clear message. Privacy class actions can’t just rely on broad or vague allegations. The plaintiffs have to spell out exactly what information was allegedly disclosed, and why that disclosure would be considered highly offensive. That’s particularly important for the common law invasion of privacy claims that often accompany statutory ones.

Jerry: So, as I understand it, the gravamen of the claim was that the TV was intercepting viewing data, what you watched, when you watched it, and then tying that to some sort of ad targeting? Is that what this case was all about?

Hayley: Exactly, Jerry. They claimed that this kind of real-time data collection violated those privacy statutes and amounted to a common law invasion of privacy. But Samba TV pushed back, arguing that none of the California laws applied because the plaintiffs lived in North Carolina and Oklahoma, that the VPPA did not apply because Samba was not a videotaped service provider, and that there was nothing highly offensive about what was allegedly collected.

Jerry: As I read the opinion here, the court endorsed the defense positions and threw out the plaintiffs’ claims. Could you elaborate on the reasoning behind the court’s theories here?

Hayley: Sure. So, the court dismissed all claims. First, on the California statutes, the CIPA and CDAFA, the judge found that they simply do not apply extraterritorially. Because the alleged conduct occurred in North Carolina and Oklahoma, where the plaintiffs reside, and not in California, those claims were dismissed.

Jerry: That seems to be a very helpful gloss on those statutes, because almost all these companies operate in California, even though they may be headquartered in other states, and yet are hauled into court and sued over and over again in these California-based class actions.

Hayley: Yeah, it’s certainly a helpful clarification for companies in California who operate nationwide. And then on the VPPA claim, the court took a close look at the definition of a videotape service provider, which applies to entities engaged in the rental, sale, or delivery of pre-recorded video materials. The plaintiffs tried to stretch that definition, saying Samba TV’s software was part of the TV ecosystem that delivers videos.

Jerry: In essence, the court thought that was stretching the law too far and the parameters of the case just out of control.

Hayley: Right, so Judge Corley said Samba TV was not delivering video content, but that it was analyzing usage data. So, the VPPA did not apply, because collecting data about video watching is not the same as delivering video content itself.

Jerry: That, you know, actually makes good sense to me. What about the common law invasion of privacy claim? How did the judge interpret that and rule on that particular cause of action?

Hayley: Yeah, so this was probably the most interesting part of the opinion. The court found that the plaintiffs’ allegations were too vague because they failed to identify any specific shows or videos they watched. They did not describe what was supposedly private about the data, and they did not explain how tying it to an anonymized identifier was highly offensive. So, the court found that the plaintiffs did not plausibly allege a violation of privacy.

Jerry: That seems to be a very common sense reading of the law, because these cases come down to ‘my viewing data or my keystrokes were viewed, and therefore my privacy was violated.’ What do you think is the big takeaway from this decision for companies?

Hayley: So, I think that there are three main takeaways. First, plaintiffs can’t use state privacy laws like the CIPA and the CDAFA if they’re outside of California. Second, the VPPA doesn’t apply to analytics or adtech companies that merely collect viewing data. They have to actually deliver or sell video content. And third, for common law invasion of privacy claims, vague allegations just won’t cut it, and plaintiffs need specificity and a plausible showing of offensiveness.

Jerry: Seems to me that defendants are going to be citing this ruling in many of their briefs in the coming months in privacy and adtech-related class actions for the notion that tracking doesn’t equate to invasion or a viable cause of action.

Well, thanks for breaking down this decision and explaining it to our listeners, and thanks for your thought leadership in this area. Great to have you with us.

Hayley: Thanks, Jerry, and thanks, listeners. It was a pleasure to be here.