Class Action Weekly Wire – Class Action Defense

March 27, 2024 by Class Action Defense

The Class Action Weekly Wire – Episode 49: 2024 Preview: Consumer Fraud Class Action Litigation

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Alessandra Mungioli with their discussion of 2023 developments and trends in consumer fraud class action litigation as detailed in the recently published Duane Morris Consumer Fraud Class Action Review – 2024.

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Episode Transcript

Jerry Maatman: Welcome loyal blog listeners. Thank you for being on our weekly podcast, the Class Action Weekly Wire. My name is Jerry Maatman, I’m a partner at Duane Morris, and joining me today is my colleague, Alessandra. Thank you for being on our podcast to talk about thought leadership with respect to class actions.

Alessandra Mungioli: Thank you, Jerry. I’m glad to be here.

Jerry: Today we’re going to discuss our recent publication, our e-book on the Duane Morris Consumer Fraud Class Action Review. Listeners can find this book on our blog. Could you tell us a little bit about what readers can expect from this e-book?

Alessandra: Absolutely Jerry. Class action litigation in the consumer fraud space remains a key focus of the plaintiff’s bar. A wide variety of conduct gives rise to consumer fraud claims which typically involve a class of consumers who believe they were participating in a legitimate business transaction, but due to a merchant or a company’s alleged deceptive or fraudulent practices, the consumers were actually being defrauded.

Every state has consumer protection laws, and consumer fraud class actions require courts to analyze these statutes, both with respect to plaintiffs’ claims and also with respect to choice of law analyses when a complaint seeks to impose liability that is predicated on multiple states’ consumer protection laws.

To assist corporate counsel and business leaders with navigating consumer fraud class action litigation, the class action team here at Duane Morris has put together the Consumer Fraud Class Action Review, which analyzes significant rulings, major settlements, and identifies key trends that are apt to impact companies in 2024.

Jerry: This is a great, essential desk reference for practitioners and corporate counsel alike dealing with class actions in this space. Difficult to do in a short podcast, but what are some of the key takeaways in that desk reference?

Alessandra: Just as the type of actionable conduct varies, so, too, do the industries within which consumer fraud claims abound. In the last several years, for example, the beauty and cosmetics industry saw a boom in consumer fraud class actions as consumers demanded increased transparency regarding the ingredients in their cosmetic products and the products’ effects. In 2023, consumer fraud class actions ran the gamut of false advertising and false labeling claims as well.

Artificial intelligence also made its way into the class action arena in the consumer fraud space for the first time in 2023. In MillerKing, LLC, et al. v. DoNotPay Inc., the plaintiff, a Chicago law firm, filed a class action alleging the defendant, an online subscription service that uses “robot lawyers” programmed with AI, was not licensed to practice law and therefore brought claims for consumer fraud, deceptive practices, and breach of trademark. The defendant moved to dismiss the action on the basis that the plaintiff failed to establish an injury-in-fact sufficient to confer standing, which the court granted. The plaintiff asserted that the conduct caused “irreparable harm to many citizens, as well as to the judicial system itself,” and constituted “an infringement upon the rights of those who are properly licensed,” such as “attorneys and law firms.” The court found that the plaintiff failed to demonstrate any real injury per its claims, and granted the defendant’s motion to dismiss.

Jerry: Well, robot lawyers and lawyer bots – that’s quite a development in 2023. How did the plaintiffs’ bar do in – what I consider the Holy Grail in this space – securing class certification, and then conversion of a certified class into a monetary class-wide settlement?

Alessandra: So settlements were very lucrative in 2023. The top 10 consumer fraud class action settlements in 2023 totaled $3.29 billion. And by comparison, the top 10 settlements in 2022 had totaled $8.5 billion, so we have seen a downward trend. Notably, five of these 10 settlements last year took place in California courts. The top settlements in 2023 resolved litigation stemming from a variety of different theories, from smartphone performance issues to the marketing of vape products. Last year, courts granted plaintiffs’ motions for class certification in consumer fraud lawsuits approximately 66% of the time. And the overall certification rate for class actions in 2023 was 72%.

Jerry: Well, that’s quite a litigation scorecard. And this is an area of interest that the class action team at Duane Morris will be following closely and blogging about in 2024. Well, thank you for being with us today and thank you loyal blog readers and listeners for joining our weekly podcast again. You can download the Duane Morris Consumer Fraud Class Action Review off our website. Have a great day!

Alessandra: Thank you!

February 28, 2024 by Class Action Defense

The Class Action Weekly Wire – Episode 45: 2024 Preview: Data Breach Class Action Litigation

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jennifer Riley and Alex Karasik and associate Emilee Crowther with their discussion of 2023 developments and trends in data breach action litigation as detailed in the recently published Duane Morris Data Breach Class Action Review – 2024.

Episode Transcript

Jennifer Riley: Welcome to our listeners. Thank you for being here for our weekly podcast the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today is my partner, Alex Karasik, and our colleague, Emilee Crowther. Thank you guys for being on the podcast.

Alex Karasik: Thank you, Jen. Happy to be part of the podcast.

Emilee Crowther: Thanks, Jen. I’m glad to be here

Jennifer: Today on the podcast we are discussing the recent publication of this year’s edition of the Duane Morris Data Breach Class Action Review. Listeners can find the eBook publication on our blog, the Duane Morris Class Action Defense Blog. Alex, can you tell our listeners a little bit about our new publication?

Alex: Absolutely, Jen. We’re very excited about this new publication. The purpose of the Duane Morris Data Breach Class Action Review is really multi-faceted. The volume of data breach class actions exploded in 2023. And these types of cases come with unique challenges, including those involving issues of standing and uninjured class members. And these issues continue to vex the courts leading to inconsistent outcomes. Data breach has emerged as one of the fastest growing areas in class action litigation. After every major (and even some of the not-so-major) report of data breach – companies can now expect resulting negative publicity, which in turn often leads to class action litigation. This saddles companies with significant costs to both respond to the data breach as well as deal with these mega lawsuits. In this respect, we hope this book will provide our clients and corporate counsel with an analysis of trends and significant rulings in the data breach space which will enable them to make informed decisions when dealing with litigation risks in this area. And hopefully, this can be a key desktop reference for all those whoever might encounter a data breach class action.

Jennifer: Defense of data breach class actions is continuing to grow into a high-stakes arena. The playbook of the plaintiffs’ class action bar and data breach cases continues to press the legal envelope on how courts are willing to interpret injuries stemming from data breaches and methods for calculating damages. The Review has dozens of contributors, thus manifesting the collective experience and expertise of our Class Action Defense Group. Emilee, what benefits can this offer our clients?

Emilee: Well, there are a lot of different benefits that could be offered. But while a data breach can be perpetrated in any number of ways, the legal issues that arise from the theft or loss of data largely fall within the same set of legal paradigms. The Review provides examination of the recent developments and settlements in the law and the area of data breach class action litigation. This publication assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with data breach class action litigation.

Jennifer: What were some of the key takeaways from the publication with regard to litigation in this area in 2023?

Emilee: It remains somewhat difficult to obtain class certification for plaintiffs in data breach class actions this year, with only 14% of motions for class certification being granted. However, while data breach class actions pursued a decade ago faced little prospect of success, recent developments in the law and subsequent jurisprudence are providing momentum for the plaintiffs’ class action bar. Plaintiffs can more readily show standing and successfully plead duty, causation, and damages. A fundamental question in most data breach class actions is whether the plaintiff can show that he or she has standing to assert claims.

Alex: We also discuss in the Review the impact that the MOVEit Customer Data Security Breach Litigation will have on the data breach class action landscape in general. Although this class action is in its infant stages, the Judicial Panel on Multidistrict Litigation has consolidated more than 100 class action lawsuits resulting from an alleged cyber gang in Russia’s exploitation of a vulnerability in the file transfer software MOVEit. The group threatens to publish files to its website, which leaks private data. The impacts of this data breach are still unfolding, but it certainly has significant stakes. The long-term fallout might include personally identifiable information (“PII”) being leaked potentially of up to 55 million people. Some of the affected entities include Shell, TIAA, American Airlines, the U.S. Departments of Energy and Agriculture, the government of Nova Scotia, and the Louisiana and Oregon Departments of Motor Vehicles. So there’s lots of folks impacted in this one.

Jennifer: Thanks, Alex. This data breach litigation is at the top of the watch list as we move into 2024, we will be sure to keep our listeners updated with all of the important developments. The Review also talks about the top data breach settlements in 2023. How do plaintiffs do in securing settlement funds this past year?

Emilee: Well, Jen, plaintiffs did very well in securing high dollar settlements in 2023. The top 10 settlements totaled $515.75 million dollars. The top settlement alone in 2023 was $350 million dollars in a case called In Re T-Mobile Customer Data Security Breach Litigation, which resolved claims that cybercriminals exploited T-Mobile’s data security protocols and gained access to internal servers containing the personally identifiable information of millions of customers.

Jennifer: We will continue to track those settlement numbers in 2024, as record-breaking settlement amounts have been a huge trend that we have followed for the past two years. Thanks Alex and Emilee for being here today, and thank you to our loyal listeners for tuning in. Listeners, please stop by the blog for a free copy of the Data Breach Class Action Review eBook.

Emilee: Thank you for having me, Jen, and thank you listeners.

Alex: Thank you, listeners, we appreciate you!

February 21, 2024February 23, 2024 by Class Action Defense

The Class Action Weekly Wire – Episode 44: 2024 Preview: Wage & Hour Class Action Litigation

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Jennifer Riley and associate Greg Tsonis with their discussion of wage & hour class and collective action litigation over the past 12 months as detailed in the recently published Duane Morris Wage & Hour Class And Collective Action Review – 2024.

Episode Transcript

Jerry Maatman: Welcome back, loyal podcast listeners. Thank you for being here for our kickoff 2024 podcast for our weekly series entitled The Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, joining me today is my partner Jennifer Riley and our colleague Greg Tsonis. Thank you Jen and Greg for being on our kickoff podcast!

Jennifer Riley: Thank you, Jerry. Happy to be part of the first Weekly Wire podcast of 2024.

Greg Tsonis: Thanks, Jerry. I’m glad to be here.

Jerry: Today on our podcast we’re discussing the recent publication of this year’s edition of the Duane Morris Wage & Hour Class And Collective Action Review. Listeners can find this eBook publication on our blog, the Duane Morris Class Action Defense Blog. Jen, can you tell our listeners a little bit about this publication?

Jennifer: Absolutely, Jerry. The purpose of the Duane Morris Wage & Hour Class And Collective Action Review is really multi-faceted. We hope it will demystify some of the complexities of class and collective action litigation and keep corporate counsel updated on the ever evolving nuances of Rule 23 as well as FLSA collective action issues in this respect. We really hope that this book will provide our clients with an analysis of trends and significant rulings in the wage & hour space, and enable them to make informed decisions in dealing with complex litigation risks.

Jerry: Defense of wage & hour class and collective actions is really the hallmark of our defense group at Duane Morris, and on this call and the podcast today is over 65 years’ worth of collective experience in handling these types of cases. Greg, what are some of the collective experiences and sort of desk reference attributes of this publication in terms of what’s going on in the wage in our world for 2023 and 2024?

Greg: Well, Jerry, as you know, wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the FLSA, often paired with state law wage & hour class claims, offers a pretty potent combination by which plaintiffs can pursue alleged misclassification or unpaid overtime claims, for example. So this publication will definitely assist our clients by identifying developing trends in the case law and offering practical approaches for dealing with class and collective action litigation.

Jerry: Well, I know Greg and Jen – you’re the main contributors and authors of the book. Along with about 30 of our colleagues in our Class Action Defense Group. What are some of the takeaways from 2023, and what corporate counsel and employers can expect in 2024?

Greg: Great question. So in in 2023 courts once again issued more certification rulings and FLSA collective actions than in other types of cases. Plaintiffs historically have been able to obtain conditional certification of FLSA collective actions at a pretty high rate which definitely is contributed to the number of filings in this area.

Jennifer: Right, Greg – agreed. Despite the high number of certification motions decided, of the 167 rulings that were issued on motions for conditional certification – 125 rulings favored plaintiffs for a success rate of nearly 75%. Those numbers are actually lower than the numbers we observed in 2022, when plaintiffs had a success rate of nearly 82%. The decline in success rates in 2023 likely reflects the impact of rulings in the Fifth Circuit and the Sixth Circuit, which took a closer look at that so called two-step process of certification. The Review goes into this analysis, and what employers can expect moving into 2024.

Jerry: I’ve always thought in the wage & hour space that change is inevitable, and employers are struggling with keeping up with the changes. And what our clients tell me in particular, is that this book is an essential desk reference that they cite and look to at least once a week. And I think one of the key issues going on right now is the propensity of the plaintiffs’ bar to file lawsuits involving very highly compensated employees, those that bank over six figures a year. And intuitively, one would think those sorts of folks are not entitled to overtime. But one of the central focuses in this year’s book is the Supreme Court’s decision this past year in Helix v. Hewitt on the salary basis test and the exemption for highly compensated individuals that brings into focus another area that’s in the book, and that’s about settlements. How do plaintiffs do in terms of securing high level settlements over the past 12 months?

Greg: Well, plaintiffs did a very good job in securing high dollar settlements in 2023, particularly in the state of California. The top 10 wage & hour settlements in 2023 totaled $742.5 million dollars, and nine of those 10 settlements emanated from litigation in California. This total was a pretty significant increase over 2022, when the top 10 wage & hour settlements totaled almost $575 million dollars.

Jerry: Those numbers are rather stunning. My prognostication is for 2024 – I think for the first time ever – we’re going to see the top 10 wage & hour class and collective action settlements exceed $1 billion dollars.

Well, thanks, Jen and thanks, Greg for being here today on our kicked off podcast for 2024. Listeners, please stop by our Duane Morris Class Action Defense Blog to obtain a free copy of the Duane Morris Wage & Hour Class And Collective Action Review eBook.

Greg: Thank you for having me, Jerry, and thank you, listeners.

Jennifer: Thanks so much, everyone.