Class Action Weekly Wire – Class Action Defense

May 29, 2026May 29, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 149: Key Class Action Trends In The Insurance Industry

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman and Jessica La Londe and associate Ryan Garippo with their discussion of Duane Morris’ Insurance Class Action Review, highlighting several trends and developments shaping class action litigation in this industry.

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: Welcome to our listeners. Thank you for being here on our weekly podcast, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Jessica La Londe and Ryan Garippo. Jessica is a partner in both our San Francisco and Seattle offices, a team lead for the Duane Morris Insurance/Reinsurance Industry Group, and co-chair of the firm’s Insurance Division of the Trial Practice Group. Ryan is an associate here in our Chicago office, and a member of the Class Action Defense Team. Thanks so much to both of you for joining us today on the podcast.

Jessica La Londe: It’s really great to be here, thank you so much.

Ryan Garippo: Thanks, Jerry.

Jerry: Today on the podcast, we’re discussing the publication of a brand-new desk reference called the Insurance Class Action Review – 2026. Listeners can find this e-book and resource on our blog, the Duane Morris Class Action Defense Blog. Jessica, can you tell our listeners a bit about this desk reference?

Jessica: Yeah, absolutely, Jerry, thank you so much, and I’ll also note that it has been linked to on our insurance blog page as well. So, this release is Duane Morris’ sixth class action publication this year that has an industry focus. The Insurance Class Action Review is intended to and does analyze the key rulings and developments in 2025 from all sorts of different areas of the class action landscape that impact companies in the insurance industry, and it provides insights into evolving and emerging trends. We are hopeful that the insurance companies that we work with and insurance companies out there in the industry benefit from this resource to help them see what their potential class action risks are out there, and to aid them, in addition, in their compliance with laws and standards.

Jerry: Well, class action litigation sure is on the rise in many industries, certainly a truism in the insurance industry. What’s driving that trend in this sector?

Ryan: Well, Jerry, it’s really a combination of old risks and new ones. Class actions have been and are now still one of the most powerful procedural tools in the American legal system. There are really few mechanisms that can shape liability in the way that a class action claim can. So, for example, a single claim that might otherwise involve limited damages can suddenly expand into thousands, sometimes millions of dollars, both for policyholders and for a variety of other consumers, that the policyholders insure. So that reality has really fundamentally changed the way that litigation environment operates for insurers.

Jessica: And I’ll just jump in and note that the kinds of claims that we’re seeing continues to grow, in the class action world in general, and as it pertains to the insurance industry. So lots of folks might be aware that historically, insurers have dealt with class action on various topics – commonly premium calculations, underwriting practices, claims handling practices – but now we’re seeing a whole bunch of new categories that are affecting insurance companies and the insurance industries. Those include some of the up-and-coming issues, like data privacy breaches, artificial intelligence, underwriting models, cybersecurity issues, and even, as we’ve seen, climate-related coverage disputes.

Ryan: Yeah, and really that expansion reflects how much the insurance industry itself has changed. Insurers now operate in an environment where virtually every business practice can create exposure across a broad customer base, and as a result, the industry occupies a uniquely complicated position legally, because insurance products touch nearly every aspect of American life, yet the policies themselves are highly technical and highly regulated.

Jerry: Well, that description sure gives us some definitions in this space and shows that insurance-related disputes rarely involve just one body of law. Seems like you’re dealing with contract interpretation, state insurance regulations, consumer protection statutes, privacy laws, administrative guidance, and many differing standards across multiple jurisdictions. It’s truly a patchwork quilt. That complexity certainly creates a fertile ground for class-wide and collective-wide litigation strategies initiated by the plaintiff’s bar.

Jessica: Okay, that’s very true, and it’s probably a surprise to no one that plaintiffs’ lawyers are increasingly sophisticated when they’re navigating all these different areas of law. We’re continuing to see plaintiffs’ efforts to certify nationwide and multi-state classes, even in areas where state law variations historically pose major obstacles, because there can be state variations in all these types of regulations and laws, but we are seeing these combined and collective efforts across states. But the upside is that the insurance industry is not without its tools. Insurers are responding themselves with more advanced defense strategies, including things like arbitration provisions, class action waivers, data governance protocols, and improvements in claims administration systems themselves.

Jerry: I think there’s also somewhat of a catch-22 there. Technology has changed the equation and litigation outcomes significantly, and over the last decade, insurers in particular have undergone major digital transformation initiatives in terms of collecting and processing enormous amounts of consumer-related data, which creates both efficiency, but also introduces a bit of risk into the equation.

Jessica: That is very true, and just like insurance companies are underwriting risks that their policyholders are facing on all these issues, they themselves are facing these issues. So, cybersecurity and privacy-related class actions are, of course, a major area of exposure now. And regulators and plaintiffs’ firms are really scrutinizing how insurers are gathering, storing, sharing, and securing all this personal information that is part of what they do every single day. And because insurance companies maintain such highly sensitive financial and health-related data, just one single incident can quickly snowball and escalate into what we’re seeing as large-scale litigation on these issues.

Jerry: Well, the data analytics that our group collects and publishes on an annual basis showed these attributes of the space in terms of more class actions being filed last year than any year before, and settlements were higher than in any other year in the history of American jurisprudence. So, you’re layering these external economic pressures and factors, catastrophic weather events, inflationary pressures, rising healthcare costs, labor market changes – all putting pressures on insurers’ pricing methodologies and claims practices.

Ryan: Yeah, that’s completely right, Jerry, and that combination has created a litigation landscape that is more dynamic and consequential than at any other point in the industry’s history. Every day, we’re litigating questions surrounding fairness, transparency, and the economic responsibility, through the class action mechanism itself, and these issues are of real consequence for insurers.

Jerry: I was saying earlier, you learned the plaintiffs’ bar is nothing if not inventive and innovative, and certainly the future of insurance-related class action litigation is likely to be shaped by many of these forces that extend well beyond traditional coverage disputes, things like artificial intelligence, climate risks, digital surveillance technologies, ESG initiatives, mass arbitration tactics, and expanding consumer protections are all reshaping class action litigation.

Ryan: Yeah, Jerry, and these developments are all happening simultaneously. There are courts, regulators, consumers, even the insurance industry itself, which are attempting to effectively negotiate these evolving standards in real time. So, you know, getting out in front of these issues and making strategic planning efforts is critically important for not only corporate defendants, but more specifically as to insurers.

Jerry: I had an insurance executive share with me that these sorts of risks are just enormous, because the outcome of a class action lawsuit can be not only financially devastating for a company, but also impair its reputation, create disruption to its operations, and have regulatory consequences.

Jessica: That is very true, and everyone knows that insurance companies are well aware of their reputation in the market, and bad news and being in the headlines certainly draws regulators’ attention, so that’s something that insurance companies want to avoid getting on that list. And it’s why insurance companies need to approach class action defense from a very big picture perspective. We look at things like the successful defense strategies that require coordination, across legal, compliance, cybersecurity, operations, claims administration, executive leadership, all facets of an insurance company’s operation. And it’s no longer enough to just kind of try to tackle these cases one at a time, as they come.

Jerry: Those factors underscore the purpose and the motivation behind the creation of the Duane Morris Insurance Class Action Review, and in terms of developing this resource for our clients in the insurance industry. The goal is to create a practical desk reference for corporate counsel and industry professionals who are increasingly having to confront these sophisticated and challenging class action risks.

Ryan: Yeah, Jerry, and it’s those risks and these trends that really reinforce the need for this kind of resource. There are rulings involving class action, litigation in the insurance industry every single day, and they’ve remained very steady for over the last, over the past several years. But we really have started to see a noticeable uptick in activity during 2025. We’d expect that to continue into 2026.

Jerry: Well, from a prognostication standpoint, this suggests the area is only going to continue to grow in importance, moving forward for the insurance industry.

Jessica: I think that’s definitely right. I do think class actions are going to continue to be one of the primary ways through which major questions are resolved in upcoming years – questions like insurance practices, consumer protection, technology, and economic accountability.

Jerry: Well, thank you, Jessica and Ryan, for joining us on this week’s podcast. Listeners, remember to stop by both the Class Action Defense Blog and the Insurance Blog for a free copy of our new e-book and publication, the Insurance Class Action Review – 2026. Thanks for tuning in.

Ryan: Thanks, Jerry, always a pleasure to be on the podcast.

Jessica: Thank you so much, Jerry, and thanks to everyone for listening.

December 5, 2025December 5, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 129: North Carolina Federal Court Upholds Class And Collective Certification Rulings In Misclassification Suit

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Alex Karasik with their discussion of a North Carolina federal court decision adopting a magistrate judge’s recommendation to deny a motion for decertification of FLSA claims and grant the certification motion for state law claims.

Episode Transcript

Jerry Maatman: Thank you, loyal blog readers and listeners, for joining us again this week for the next episode of our weekly podcast series entitled The Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today is my colleague and partner Alex Karasik. Welcome so much, Alex, for being on the podcast.

Alex Karasik: Great to be here, Jerry. Thank you for having me.

Jerry: Today, we’re going to discuss an important ruling that emanated from North Carolina. It’s in a case called Landis v. The Elevance Health Cos., and it involves a Fair Labor Standards Act (FLSA) case and a North Carolina wage and hour law case. It involves a recommendation made by a magistrate judge to not decertify a FLSA conditionally certified collective action, and then on top of it, to certify a Rule 23 class under state law. From your perspective, Alex, in terms of following these sorts of rulings, what stands out to you, and what should employers take away from this ruling?

Alex: What stands out is the court’s straightforward endorsement. By finding no clear error, Judge Boyle confirmed that both the FLSA collective action and the North Carolina Wage and Hour Act class claims should remain intact. That was certainly a unique ruling to me.

Jerry: Well, these are misclassification claims by the plaintiff, Kathy Landis. Could you give our listeners a quick recap of what this lawsuit was all about?

Alex: Yeah, certainly, Jerry. Landis alleged that Elevance, formerly the Anthem Companies and its subsidiary, Amerigroup, misclassified utilization reviewers in the Nurse Medical Management (NMM) job titles as exempt employees. Landis and the other plaintiffs alleged that they were salaried, classified as exempt, and routinely worked more than 40 hours in a work week, and therefore did not receive overtime compensation for the hours worked beyond 40. Their primary job duty was utilization review, which is essentially assessing whether requested healthcare services are medically necessary using objective clinical criteria.

Jerry: The study we do each year in the Duane Morris Class Action Review gathers statistics on decertification motions, and in past years, basically a jump ball, 50-50 between plaintiffs and defendants. In this particular case, what were the factors that led the court to deny decertification of the collective action?

Alex: In this instance, the magistrate judge found that similarities across all NMM rules outweighed the differences. All NMMs used the same software systems, they reported with a common supervisory structure, they performed standardized utilization review, they followed similar approval and escalation procedures. So even though sometimes there were different guidelines, the main functions remained the same. The magistrate judge stated that the differences were not meaningful to the core question of exempt status and whether or not they were misclassified. In other words, even if the day-to-day details varied among the people in the case, the variations did not alter the legal inquiry under the FLSA.

Jerry: One way to think about decertification is the concept of chaos. You can’t put one person on the stand, they tell their story, and it transposes to everyone else. What was the court’s take on the defendant’s argument about the individualized nature of the duties, the jobs, the tasks at issue here?

Alex: Yeah, the court didn’t find that persuasive in this case. Judge Swank found that the defendants overstated the amount of individualized analysis that would be required. She concluded that the collective could be analyzed efficiently and because the exemption issue was common across the group. The court opined that the central question was whether the utilization reviewers were exempt, or were they performing exempt or non-exempt work, and minor variations among the work performed wouldn’t alter that inquiry. The magistrate judge also found that collective treatment would be a more efficient method in terms of adjudicating these claims as opposed to an individual case. The magistrate judge concluded that all factors weighed against decertification.

Jerry: Many believe that obtaining conditional certification of a collective action is easier than obtaining Rule 23 certification of a class action. How did the court treat theories that the plaintiffs offered here for Rule 23 certification of their state law wage and hour claims?

Alex: Yeah, the court here essentially rejected the defendant’s arguments in terms of what they disputed in the case of the Rule 23 factors. She stated that the class shared a central question of whether individuals in these roles whose primary job was utilization review. We’re properly classified as exempt. The court held that the variations in hours worked or guidelines used did not defeat commonality, because the exemption question could be answered with common evidence.

Jerry: Commonality under Rule 23(a)(2) is one thing, but predominance under Rule 23 is another, and a very exacting, difficult test. How did the court react to the defenses of predominance and superiority in this context?

Alex: Judge Swank found that common issues predominated because the exemption question was common across the class, and it could be resolved using largely uniform evidence, such as their job descriptions, the deposition testimony about the review process, and Elevance’s uniform exemption policy. In other words, the judge concluded that a class action would be the superior method for adjudicating these claims.

Jerry: Well, thanks so much, Alex, for your overview and thought leadership in this area. The Duane Morris Class Action Review is about a month out from being launched. Chapter 23 is the wage and hour chapter, probably the meatiest chapter in the entire book in terms of the volume of rulings, and this certainly is a good case study of how plaintiffs have succeeded, at least in North Carolina, in certifying their cases. So, thanks so much for being here today, and being our guest speaker on this week’s podcast.

Alex: Well, thank you, Jerry. I’m grateful for the opportunity to be here, and thank you to our listeners.

August 21, 2025August 21, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 115: Ninth Circuit Strikes Arbitration Clause In Employee Health Plan

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associates Jesse Stavis and Caitlin Capriotti with their discussion of a major Ninth Circuit decision addressing a district court’s denial of a motion to compel arbitration in a proposed ERISA class action.

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 to our listeners for being here again for our next episode of the Class Action Weekly Wire, our podcast series that examines class action issues. I’m Jerry Maatman, a partner at Duane Morris, and today we have Jesse Stavis of our Philadelphia office and from California, our newest team member, Caitlin Capriotti. Thank you both for being here to join the podcast.

Jesse Stavis: Great to be here, Jerry. Thanks so much for having me on again.

Caitlin Capriotti: Thanks, Jerry. I’m really happy to be here for my first episode.

Jerry: So, the Ninth Circuit just issued a very significant opinion involving Sodexo and its employee health care plan, and specifically how arbitration clauses interact with ERISA class action claims. Caitlin, can you give our listeners a synopsis of the decision?

Caitlin: Yeah, of course. So, the plaintiff in this case, Robert Platt, alleged that a monthly tobacco surcharge imposed on his employee health insurance premiums violated the ERISA. The plaintiff brought claims on behalf of himself and other plan participants under ERISA Sections 502(a)(1)(B) and 502(a)(3) and a fiduciary breach claim under 502(a)(2) on behalf of the health plan itself. Sodexo sought to compel arbitration based on the provision it unilaterally added to the Plan after Platt had already enrolled. The district court denied the motion, holding that there was no enforceable arbitration agreement because Sodexo could not unilaterally modify the Plan to impose arbitration without Platt’s consent, and then the company had appealed to the Ninth Circuit.

Jerry: Thanks for that cogent summary. Jesse, how did the Ninth Circuit react after reviewing the district court’s opinion?

Jesse: The Ninth Circuit agreed. It held that an employer cannot create a valid arbitration agreement simply by unilaterally amending an ERISA-governed plan. Instead, valid consent from the appropriate party is required. Now, for Platt’s individual claims under Sections 502(a)(1)(B) and (a)(3), the Ninth Circuit found that Platt himself was the relevant consenting party – and that he had not consented to arbitration, so he received insufficient notice, and was never informed that continued participation would signal his agreement.

However, the Ninth Circuit held that for the fiduciary breach claim under Section 502(a)(2), the Plan, and not Platt, was the relevant consenting party. Because the Plan’s terms grant Sodexo broad authority to amend its provisions, the court found that the Plan consented to arbitration. Nonetheless, the panel also agreed with Platt’s argument that even if the Plan had consented, the arbitration clause’s ban on representative actions violated the effective vindication doctrine, which protects statutory rights from being waived through arbitration. Since representative actions are integral to ERISA enforcement under Sections 502(a)(2) and 409(a), the court held that the representative action waiver was unenforceable.

Jerry: So, what’s the essential big takeaway here? Is this just another quirky, fact-specific Ninth Circuit opinion, or are we starting to see a trend in ERISA class actions where arbitration clauses are at issue?

Caitlin: We’re definitely starting to see a trend. This decision aligns with what we’ve seen from several other circuits, specifically the Second, Third, Sixth, Seventh, and Tenth. Courts are increasingly skeptical of arbitration provisions in ERISA plans that try to block representative or class-wide claims.

Jesse: And if we take a step back and look at the big picture, we really see that employers are losing ground in trying to force individualized arbitration when plan-wide relief is at stake. That’s a pretty huge shift in ERISA litigation strategy, and employers need to take note.

Jerry: Let’s unpack this a little more. Obviously, the case is now going back down to the district court because the Ninth Circuit affirmed in part and reversed in part. What exactly got compelled to arbitration or stayed, and what got tossed?

Jesse: So, the Ninth Circuit said that Sodexo could not compel individual arbitration for benefits and equitable relief because they didn’t get proper consent from plan participants when they added the arbitration clause unilaterally. That part stuck.

Caitlin: But for the fiduciary breach claim, the court actually said Sodexo did get valid consent – from the Plan itself, which is a distinct legal entity. So, technically, that claim could be arbitrated.

Jerry: But that being said, the way I read the Ninth Circuit’s opinion, there seems to be a catch. What’s that all about?

Jesse: Yes, Jerry, there is indeed a catch. Because the arbitration clause had a representative action waiver, the court said enforcing that would violate the effective vindication doctrine. That means Platt couldn’t be blocked from pursuing a fiduciary breach claim on a representative basis, which is exactly what ERISA allows.

Jerry: Well, this is probably music to the plaintiffs’ bar, because their business model is to find a case, file the case, certify the case, and then monetize the case – and avoid being compelled to arbitration. Are the plaintiffs’ attorneys going to have a broader array of tools to try and frustrate motions to compel arbitration and keep their cases in court?

Jesse: Oh, yes, they certainly are. And beyond that, the court also opened the door for unconscionability defenses, even though Sodexo had a valid agreement with the Plan. The Ninth Circuit said those defenses arise under federal law, not state law, which means they’re not preempted by ERISA. So, Platt gets another shot at challenging the clause.

Jerry: So, is this settled law in your opinion, or are we seeing a little bit of the Wild, Wild West and a lot of innovative, creative attacks on arbitration clauses in the coming months?

Caitlin: It’s still a bit of the Wild West. While the circuits are mostly moving in the same direction, there are differences on questions like plan-wide monetary relief versus equitable relief, and how far effective vindication goes.

Jerry: My sense is this lack of clarity, or that the legal principles are in flux, may well put this on the Supreme Court’s radar, especially as more circuit splits emerge on the arbitration issue in ERISA class actions. Before we wrap up, what are your big takeaways from the Ninth Circuit’s opinion in Sodexo?

Caitlin: For me, it’s the reaffirmation that ERISA’s representative structure matters. Courts won’t let arbitration clauses rewrite that.

Jesse: And I’d just add to that by saying that employers need to be very careful with how they draft arbitration clauses in ERISA plans. Unilateral amendments and representative waivers are definitely more risky territory.

Jerry: Well said. That’s cogent advice. We’ll be watching to see if the Supreme Court of the United States takes this up, but for now, loyal blog readers and listeners, be sure to keep checking the Duane Morris Class Action Blog for our updates on all things class actions and arbitration issues. Well, thanks for being here, Jesse and Caitlin, and thanks for tuning in, listeners.

Jesse: Thanks so much for having me on the podcast, Jerry, and thanks, as always, to the listeners for being here.

Caitlin: Thanks, everyone, and thank you for the warm welcome. I’m happy to be here.

May 30, 2025May 30, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 103: Procedural Issues In Class Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley and associate Nathan Norimoto with their analysis of key procedural issues in class action litigation addressed by the Second, Third, and Seventh Circuit Courts.

Episode Transcript

Jennifer Riley: Thank you for being here again for the next episode of our Friday weekly podcast, the Class Action Weekly Wire. I’m Jennifer, Riley, partner at Duane Morris, and joining me today is Nathan Norimoto. Thank you so much for being on the podcast today, Nathan.

Nathan Norimoto: Thanks. Happy to be here again, Jen. I appreciate it.

Jennifer: So, today we wanted to discuss trends and important developments with procedural issues in class action litigation. In our Class Action Review, this topic is somewhat of a catch-all in terms of the legal issues involved. Class action litigation presents significant procedural issues to litigants and courts alike. In 2024 courts addressed myriad procedural issues in class action litigation. Nathan, can you tell our listeners some of the highlights in this area over the past year?

Nathan: Certainly, jurisdiction is always an important consideration in class action litigation. Jurisdictional defenses are often can be dispositive when a defendant challenges the ability of plaintiffs to maintain their class action in court. This past year, the plaintiffs in Hasson v. FullStory, Inc. challenged district court decisions dismissing their class action lawsuits against FullStory, Inc., one of the defendants, and also Papa John’s International, Inc., for lack of personal jurisdiction, and essentially in their complaint plaintiffs allege that they were being unlawfully wiretapped by the defendants without their consent. Both of the defendants were incorporated in Delaware and based in Georgia, and the core legal issue that was presented in both cases centered on whether the defendants’ actions constituted sufficient contact with Pennsylvania to warrant jurisdiction from the court. The district court ruled against the plaintiffs on the grounds that they had failed to show that FullStory, one of the defendants, specifically aimed its conduct at Pennsylvania, where the action was venue. The district court also found that the claims were inadequate under both the “traditional” and “effects” tests for establishing personal jurisdiction. This decision from the district court was appealed to the Third Circuit, which ultimately affirmed the district court’s ruling. The Third Circuit ruled that the plaintiff’s allegations had failed to show that one of the one of the defendants, Papa John’s, targeted Pennsylvania specifically as the company’s website was intended for a national audience. The Court of Appeals also held that just simply operating an accessible website does not equate to targeting a specific state for purposes of the personal jurisdiction analysis. Additionally, the Third Circuit rejected one of the plaintiffs’ arguments that Papa Johns’ business activities in Pennsylvania established sufficient jurisdiction, analyzing that the alleged wiretapping would have occurred regardless of the company’s operations in that state. The court acknowledged Papa Johns’ significant presence in Pennsylvania but found that the plaintiffs’ claims did not arise out of or relate sufficiently to those contacts. So, ultimately the Third Circuit ruled that the connection between the website’s operation and the wiretapping claims was too weak to satisfy jurisdictional requirements as to the other plaintiff’s claims. The Third Circuit ruled that the plaintiff did not allege that FullStory, the other defendant, knew that he or any other user was in Pennsylvania before this alleged wiretapping app application was dispatched to his browser. The court held that FullStory was a degree removed from the alleged harm in the chain of events preceding this application’s transmission to the plaintiff’s browser failed to establish that FullStory, the defendant, expressly aimed its alleged wiretapping at Pennsylvania. So, for these reasons, the Third Circuit affirmed the district court’s ruling dismissing the case.

Jennifer: Thanks, Nathan. The issue of standing is always also a hot topic in class action litigation. For instance, I know the Second Circuit weighed in on associational standing in a case called Do No Harm, et al. v. Pfizer Inc. this past year. So, associational standing is a legal doctrine that allows an organization to sue on behalf of its members when those members have suffered injury, even if the organization itself hasn’t experienced harm. Essentially, it gives an organization the right to act as a representative of its members in court. So, in that case the defendant was Pfizer. It launched a program called the Breakthrough Fellowship Program in 2021 to increase minority representation and leadership opportunities. The program included a summer internship, two years of full-time employment, a fully paid MBA, MPH, or MS degree, additional internships, and postgraduate employment with Pfizer, the defendant. Eligibility for the program was restricted to the U.S. citizens or permanent residents who were undergraduate juniors with 3.0 GPAs and who exhibited commitment to pursuing one of those degrees, and it specifically aimed to enhance opportunities for Black/African American, Latino/Hispanic, and Native American candidates. The plaintiff in that case was an advocacy organization and filed a lawsuit claiming that the fellowship’s focus on increasing diversity excluded White and Asian American applicants in violation of Title VII. The organizations sought a temporary restraining order, or TRO, to halt the selection process for 2023. The district court in that one dismissed the case, ruling that the plaintiff, the association, lacked standing because it failed to identify any harmed members by name, and also did not sufficiently demonstrate that its members were directly affected. The district court there opined also that the fellowship program did not violate the federal civil rights laws. On appeal, the Second Circuit affirmed the ruling of the district court. The plaintiff argued that the dismissal was premature because it had met the standing requirements for a preliminary injunction. The Second Circuit disagreed. It ruled that the plaintiff, who was of course pursuing claims as an association, had to name at least one injured member in order to establish standing, and therefore the dismissal was appropriate because the plaintiff failed to meet that requirement.

Nathan: Interesting. I’m interested to see how that doctrine progresses through 2025. Jen, I also wanted to address the issue of consolidation and class action litigation, since oftentimes consolidation issues surface when defendants are subject to multiple class actions and are assessing whether or not to consolidate multiple cases in one form is a strategic imperative for defendants. In Willis, et al. v. Government Employees Insurance Co., the plaintiffs filed a collective action alleging that GEICO had failed to pay overtime wages under the Fair Labor Standards Act, or the FLSA. The case was connected to two other FLSA collective actions against GEICO already pending in that court and the defendant, GEICO, had sought a dismissal of the case as duplicative since the named plaintiffs were also part of another lawsuit entitled Benvenutti v. GEICO. The court denied the motion and ultimately consolidated the actions, stating that the Benvenutti action specifically involved service representatives at GEICO’s operation working out of its Macon, Georgia call center, and had alleged that GEICO failed to pay overtime under a policy that had only compensated logged in hours. The current plaintiffs, while also part of the Benvenutti case, represented employees in different positions who had similar claims regarding unpaid hours worked. The court noted that there was a substantial overlap in the parties’ issues and relief sought between the two cases, emphasizing that both actions revolved around claims of unpaid overtime under these alleged timekeeping practices. And so, the court ruled that consolidating the cases would actually enhance judicial efficiency and avoid repetitive litigation to provide a more streamlined resolution of the common issues.

Jennifer: Thanks, Nathan. Agreed – centralization is key for parties when attempting to litigate the claims of several actions in a particular forum. So, let’s talk about one more topic, and one that is always interesting in terms of how courts rule – sanctions, sanctions in class action litigation. Were there any interesting rulings on sanctions in 2024?

Nathan: Definitely. One interesting sanctions case was Mazurek, et al. v. Metalcraft Of Mayville, Inc. The plaintiff machinist had filed a collective action alleging that the defendant had failed to pay overtime compensation in violation of again the FLSA. The plaintiff specifically asserted that the defendant’s timekeeping system allowed employees to clock in and out up to 15 minutes before and after their scheduled shifts. However, the plaintiff alleged that if employees clocked in early but didn’t ultimately end up working that time, the recorded start time was adjusted to reflect the regular shift start time that was already programmed in the system. The plaintiff claimed employees were not compensated for this early time, despite them working. So, a timeclock issue. The court initially granted conditional certification of the collective action, but after discovery it subsequently decertified the collective action. The plaintiffs, following that decertification ruling, filed 16 additional cases which the court moved to consolidate or consolidated, and then the court selected two cases for summary judgment briefing. Out of those 16, the court had granted summary judgment to the defendant in all the selected cases. It ruled that even though the FLSA plaintiffs have a lower burden of proof when employer records are inaccurate. For example, the plaintiffs must still provide some proof of the hours they worked and were not compensated for that time. And so, the court noted that reconstructed work time had to be more than mere guesswork and found that plaintiffs’ attempts to estimate their work hours were just insufficient. So, in a separate order, in addition to that motion for summary judgment order, the court noted that since the two selected cases shared similar issues, it might be indicative of the broader problem with all of the pending cases. The court instructed plaintiffs’ counsel to then provide any specific facts or legal arguments that could differentiate the remaining cases from the two that have already been decided. In response, the plaintiffs in the remaining cases voluntarily dismissed their complaints with prejudice. Given the court’s ruling and the other actions, the defendant then moved for sanctions across all 16 cases, arguing that the allegations were based on speculation rather than evidence, and that plaintiffs’ counsel should have realized the cases were baseless when they filed the complaints. The district court ultimately denied the sanctions motion finding that while the evidence provided by the plaintiffs was insufficient to win at summary judgment, it still didn’t rise to the level of frivolousness or baselessness to warrant sanctions. Defendants appealed, and on appeal, the Seventh Circuit affirmed the district court’s ruling, agreeing that the plaintiffs’ claims were based on legitimate legal arguments and methods of proof and also, of course, that the district court had not abused its discretion denying that motion for sanctions.

Jennifer: Thanks, Nathan, great insights and analysis. I know that these are only some of the manners in which procedural issues can and have impacted and shaped class action litigation. I expect the ways in which both sides utilize these procedural tools, and the manner in which the courts rule on their applications, will continue to evolve in 2025. Thanks so much for joining us today. And thank you, Nathan, for your insight and excellent analysis.

Nathan: Thank you, listeners. Thank you, Jen.

April 25, 2025April 25, 2025 by Class Action Defense

The Class Action Weekly Wire – Episode 98: Key Appellate Developments In Class Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jennifer Riley, senior associate Tyler Zmick, and associate George Schaller with their discussion of the notable appellate rulings shaping class action litigation in 2025.

Episode Transcript

Jennifer Riley: Thank you for being here again for the next episode of our Friday weekly podcast, the Class Action Weekly Wire. I’m Jennifer Riley, partner at Duane Morris, and joining me today are Tyler Zmick and George Schaller. Thank you both so much for being on the podcast today.

Tyler Zmick: Thanks for having me, Jen.

George Schaller: Glad to be here, Jen.

Jennifer: So today, we wanted to discuss some trends and important rulings in the area of appeals in class action litigation. Parties have limited options when it comes to seeking interlocutory appellate review of a class certification decision. What are some typical ways in which parties can move for an interlocutory review?

Tyler: So, the main mechanism to get interlocutory appeal and review of a class certification order is Rule 23(f) of the Federal Rules of Civil Procedure. Under that rule, a party can ask the federal appellate court for permission to appeal within 14 days of the district court issuing an order that either grants or denies class certification. Another avenue is seeking interlocutory appellate review of a district court decision under a federal statute, 28 U.S.C. § 1292(b). Now, Section 1292(b) appeals are especially helpful in complex cases to correct early errors of law, that, if put off until after final judgment, might require the parties to redo years of extensive litigation.

Jennifer: George, can you explain to our listeners what are the primary differences between those two options? In particular, what is the benefit of Rule 23(f)?

George: Sure, Jen, so unlike interlocutory appeals under Section 1292(b), Rule 23(f) does not require a district court to certify an issue for appeal. Moreover, Rule 23(f) does not include the potentially limiting requirements of Section 1292(b) under which the district court can certify an issue for appeal only where an order involves a controlling question of law as to which there’s substantial ground for difference of opinion, and where an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Jennifer: Thanks, George. So here’s a question that I get asked quite often – how likely is it that a Rule 23(f) petition will get granted by the appellate court?

Tyler: So, studies have actually been done on that very issue. And those studies show that appellate court orders or appellate courts deny approximately 75% of Rule 23(f) petitions to appeal class cert orders. And most of those denials come by way of summary orders that do not provide any reasoning. So basically, the court says ‘petition denied because I said so.’

Jennifer: Do you have any examples of some rulings granting petitions for appeal over the past year in particular?

George: Yes, so the plaintiffs in Richards, et al. v. Eli Lilly & Co. filed a collective action alleging that the defendant failed to promote older employees in violation of the Age Discrimination in Employment Act, or the ADEA. The court granted the plaintiff’s motion for conditional certification, and the defendant moved to certify an interlocutory appeal and stay the action. The court granted the defendant’s motion, and the court first analyzed whether the issue at hand was a pure question of law rather than a factual dispute. The court concluded that the question of the proper standard for collective action certification, whether it be the more lenient modest factual showing approach or the stricter preponderance of evidence standard, was a question of law suitable for appeal. The court assessed whether the resolution of the legal question would significantly impact the course of the litigation. The court also determined that clarifying the standard for certification would affect the size and scope of the collective action, thereby impacting settlement negotiations and potentially expediting or prolonging the litigation process. The court further considered whether there were substantial grounds for a difference of opinion on the legal issue. The court noted conflicting decisions in different circuits and within its own circuit, which indicated a genuine dispute over the appropriate standard for certification. Finally, the court concluded that resolving the certification issue would ultimately expedite the progression of the lawsuit. Accordingly, the court granted the defendant’s motion for an appeal, certifying the question of the proper standard for collective action certification of an ADEA claim.

Jennifer: Thanks, George, very interesting to get some of the court’s rationale in graining that petition, and we’ll see what the Court of Appeals decides in that case. Now that we are well into 2025, have there been any interesting rulings so far this year?

Tyler: Yes, there have been a few. One example of a notable ruling was issued by the Tenth Circuit Court of Appeals in March of this year, in the case named Quint v. Vail Resorts. The plaintiffs in that case filed a class action against their employer, Vail Resorts, in federal court in Colorado, alleging violations of state and federal labor laws. Now, around the same period of time, similar claims were being pursued in California state court by a different group of employees in a case called Hamilton v. Vail. The claims in the Hamilton case were ultimately settled, so the Vail defendant in the Colorado federal case asked the court for a stay to avoid overlapping litigation on the same claims. The district court agreed and paused the federal case until all appeals in the Hamilton case were resolved. Meanwhile, in California state court, the Colorado plaintiffs objected to the Hamilton settlement, and when the state trial court overruled those objections to the settlement, the plaintiffs appealed to the California Court of Appeals, and the California Appellate Court then ruled in favor of the Colorado plaintiffs, and then allowed them to intervene in the state court trial action and the court overturned the approval of the Hamilton settlement. The defendant then requested review from the California Supreme Court, but that court declined. As a result, the condition that triggered the end of the stay in the Colorado federal court case – which was final resolution of the Hamilton appeals – was met. And so back in federal court, the Colorado plaintiffs moved to lift the stay that had been in effect in that case, and the Tenth Circuit ultimately held that the stay had already expired on its own terms, and since there was no longer an active stay to lift, the Tenth Circuit found that the appeal was moot, because there was nothing left to resolve. So, the Tenth Circuit, therefore, dismissed the appeal.

Jennifer: Thanks so much for those examples. I anticipate that appeals will continue to be granted sparingly, and the courts will continue to provide little guidance to the parties on what will and won’t be successful in terms of arguments in these petitions. So, I think the parties will have to continue to develop some novel approaches and evolve their strategies in order to continue to obtain success in this area. Well, thanks so much for all of the great analysis, George and Tyler, and thank you for being here on the podcast with me today, listeners. Thank you so much for tuning in.

Tyler: Thanks for having me, Jen, and thank you, listeners.

George: Thanks, everyone. Have a great weekend.

October 11, 2024 by Class Action Defense

The Class Action Weekly Wire – Episode 77: Chicago’s New Sick Leave Law Faces Airlines’ Challenge

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Ryan Garippo with their discussion of a recent lawsuit challenging the implementation of the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance, which took effect in July 2024, alleging the statute would impact flight prices and routes – hindering airlines’ ability to provide services.

Episode Transcript

Jerry Maatman: Thank you. Loyal blog readers and listeners. My name is Jerry Maatman of Duane Morris, and welcome to our weekly podcast series, entitled The Class Action Weekly Wire. I’m joined today by Ryan Garippo, one of my colleagues, who’s here to discuss some cutting-edge litigation in the U.S. District Court for the Northern District of Illinois. Welcome, Ryan.

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

Jerry: We wanted to talk about a lawsuit brought by an organization known as the Air Transportation Association of America, in response to a new law passed by the City of Chicago requiring paid sick leave. The law is being challenged, a law that went into effect on July 1, which requires that employers provide workers with up to 40 hours of paid sick leave (and up to 40 hours of paid leave) that can be used for any reason and at any time. Ryan, what’s this lawsuit all about and why is it important for companies?

Ryan: Well, Jerry, it’s a really interesting case. The plaintiffs in this case alleged that the municipal ordinance, the Chicago Paid Leave and Paid Sick and Safe Leave Ordinance, cannot be enforced against airlines because it interferes with flight crew staffing and scheduling in violation of federal law and their collective bargaining agreements. Here, the airline lobbying group stated that the new regulation is preempted by the ADA, or the Airline Deregulation Act, and the Railway Labor Act. These are laws that removed federal government control over the industry to allow the market to influence economic decisions like fares, routes, schedules, and services. The law also prohibited state and local governments from enacting or enforcing a law or regulation having the force and effect of law related to price, route, or service of an air carrier. The plaintiffs have argued that this ordinance would do exactly that.

Jerry: Well, thank you for setting the scene. That’s a very interesting lineup of issues and litigants. My understanding is the lawsuit was filed against Kenneth Meyer, who’s the Commissioner of Chicago’s Department of Business Affairs and Consumer Protection – why is it that this association sued the city or the chair of this agency?

Ryan: Well, this the organization sued Mr. Meyer because he’s the one who enforces the law. He argued that the law is not preempted at the ADA because it regulates airline employees – and not the price, routes, or services. Mr. Meyer also contended that the ordinance’s regulations of employees would not cause airlines’ labor costs to increase, but the costs are just one of many inputs that impact an airline’s customer facing services and are too far removed to be preempted. Mr. Meyer also stated that the ordinance was not preempted by the Railway Labor Act because it did not involve the collective bargaining process and did not trigger that interpretation of the collective bargaining agreement. He also argued that the ordinance simply established minimum labor practices within the city.

Jerry: So, in essence, the association was challenging the viability of this law and whether or not it could stay on the books. How did the association respond then to the city’s motion to dismiss after it was filed?

Ryan: Understandably, they argue that the motion should be denied. They argued that the ordinance does undermine the airline’s ability to organize with its employees, and that it would result in the employees ultimately misusing the ordinance by taking sick leave more frequently and on shorter notice. This possibility, according to the plaintiff, means that the ordinance is preempted by the ADA because the Act removed the federal government’s control over the industry to allow the market to influence decisions like fares, routes, schedules, and services. They also contend that a certain number of the flight attendants must be on a plane for the airline to allow passengers to start boarding, and if more employees are misusing the ordinance, then the airline will be forced to spend time searching for potential replacements for flight attendants when they call out abruptly on sick leave which will lead to potential delays, cancellations, and will ultimately impact routes and fares. Well, now that the motion is fully briefed, we’ll keep our eyes out for a ruling from the court.

Jerry: This reminds me of kind of the post-COVID situation, where hundreds, if not thousands, of cities and municipalities enacted leave laws, including the sick leave law that you’ve described, so that employers, especially those operating in multiple states, have to deal with a patchwork quilt of obligations when it comes to leave laws such as at the federal level, state level, and even the city level. So a very vexing, challenging area for employers. And this is a key ruling that everyone will want to keep uppermost in their mind in terms of trying to figure out how to comply with that patchwork quilt. Well, thanks, Ryan, for lending your expertise and thought leadership and joining us for this week’s podcast.

Ryan: Happy to be here. Thanks everyone.

July 25, 2024August 7, 2024 by Class Action Defense

The Class Action Weekly Wire – Episode 66: Colorado Stakes Out Artificial Intelligence Frontier With Comprehensive Algorithmic Anti-Discrimination Law

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Tiffany Alberty with their discussion of a significant development on the forefront of artificial intelligence legislation – a Colorado bill recently signed into law making strides to curb the risk of algorithmic bias across all sectors and uses of AI technology.

Episode Transcript

Jerry Maatman: Thank you, loyal blog readers. Welcome to our next installment of our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris and joining me today is my colleague, Tiffany Alberty. Welcome.

Tiffany Alberty: Thanks, Jerry, excited to be here.

Jerry: Today we wanted to discuss what I believe to be a landmark development coming out of the state of Colorado regarding artificial intelligence legislation, and specifically the new AI bill that was signed into law earlier this year. As a member both of the Illinois and Colorado bars, Tiffany, I know you’ve been advising employers on this – wondered what your takeaways were at a 100,000 foot level on this new law?

Tiffany: Sure. Thanks, Jerry, I appreciate the opportunity to speak today. So, as many of you know, on May 17th of this year, Colorado Governor Jared Polis signed into law SB-205, also known as the Consumer Protections for Interactions with Artificial Intelligence Systems. It does take effect in February of 2026, and it applies to Colorado residents. This bill was modeled after Connecticut’s ambitious legislation which ended up crumbling the same month due to the Connecticut Governor Ned Lamont’s concerns that it would stifle the innovation of the developing AI industry. So, comparing this legislation to AI laws such as in Florida or Utah. The statute is really the first legislation of its kind in the United States that focuses on what’s called “high-risk artificial intelligence systems”. Notably, it requires that developers and companies that deploy this high-risk AI technology use the standard of reasonable care to prevent algorithmic discrimination.

Jerry: Thanks for that overview, Tiffany, that’s very helpful. In terms of what corporate counsel need to understand about the concept of “high-risk AI systems,” how would you describe that in layman’s terms, and with respect to the range of activities or software covered by the new Colorado law?

Tiffany: Sure. So, the Colorado law defines “high-risk AI systems” as those that make or substantially contribute to making “consequential decisions.” Of course, it’s not clear, but some examples that would be considered as “consequential decisions” under the law include a large range of companies and services, including education enrollment or education opportunities, employment or employment services and opportunities, financing or lending services, essential governmental services, healthcare services, housing, insurance, and then, of course, legal services.

The law does actually carve out specific systems that would not be included in the law – that either (i) perform narrow procedural tasks; or (ii) detect decision making patterns or deviations from prior decision-making patterns, and that aren’t intended to replace or influence the human component of assessment and review. Also excluded from the law is AI-enabled video games, cybersecurity software, anti-malware or anti-virus software, spam or robocalling features and filters – all when they’re not considered a “substantial factor” in making these consequential decisions

Going to what a ”substantial factor” is – it’s defined as a factor that (i) assists in making consequential decisions and (ii) is capable of altering the overall outcome of that said consequential decision, or (iii) is generated by an AI system alone.

Jerry: Well on its face, that sounds quite broad, and I doubt that the exemptions are going to be used to swallow the rule. What do corporate counsel need to know about penalties and potential damages under the statute for violations of it?

Tiffany: Sure, so the penalties are hefty. The law provides the Colorado Attorney General with the exclusive authority to enforce violations and penalties up to $20,000 for each consumer or transaction violation that’s involved. However, the law does not contain a private cause of action. Developers as well as deployers can assert an affirmative defense if they discover and cure the violation, or are in compliance with the latest version of the Artificial Intelligence Risk Management Framework that’s published by the National Institute of Standards and Technology, or otherwise known as NIST, or any other framework that is designated by the Colorado Attorney General that should come out with more specific and narrow confines.

Jerry: The job of a compliance counsel is certainly difficult with the patchwork quilt of privacy laws, but what would your advice be specifically for companies involved in trying to engage in good faith compliance with the Colorado law?

Tiffany: Sure, great question. There are key responsibilities at stake for both developers of AI technology and deployers, which are the companies that are utilizing these systems, in terms of protecting consumers and employees from the risks of algorithmic discrimination. For AI developers, there is a duty to avoid algorithmic discrimination, and under the reasonable care standard, it includes several critical steps. So that would be providing deployers with detailed information about the AI systems and the necessary documentation for impact assessments; developers must make a public statement about the types of AI systems that they have developed or substantially modified; and disclose any potential risks of algorithmic discrimination to known deployers and the Colorado Attorney General within 90 days of discovery.

So that’s going to be for the AI developer side. Now, if you go to the other variation which is going to be for deployers of high-risk AI systems, they, too, have a duty under the law to avoid algorithmic discrimination, and they are required to implement comprehensive risk management policies, conduct impact assessments throughout the year, and review their AI systems annually to ensure that there’s no algorithmic discrimination occurring. They also need to inform consumers about the system’s decision-making processes and offer opportunities for correcting any inaccurate information that’s being collected and allow for appeals against adverse decisions upon human review, if that is feasible. And then the last thing that is similar to the AI developer side – deployers must also disclose any algorithmic discrimination discovered to Colorado’s Attorney General within 90 days of discovery.

So, kind of taking more of a bird’s eye view, the law encompasses AI technology when it’s involved in the consequential decisions, such as in an employment context for hiring and firing. And it adds another layer of intervention to check the AI process, and ensuring that it doesn’t have any type of discriminatory or bias intent. As such, companies have until February 2026 to come into compliance with this new Colorado AI law.

Jerry: Well, thanks, Tiffany. Those are great insights. I think the bottom line is compliance just became a bit tougher in terms of all the things that are out there in that wild west which is the legal frontier of artificial intelligence. If there’s nothing other than what we’ve seen from the plaintiffs’ bar is that they’ve been very innovative and using statutes like this and cobbling together class actions involving employer use of artificial intelligence. Well, thank you loyal blog readers for tuning in to this week’s weekly podcast series – we will see you next week with another topic.

Tiffany: Thanks, everyone.

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.

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

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.