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January 31, 2023 Practice Points

Top 10 Consumer Class Action Trends of 2022

2022 saw an increase in several types of consumer class actions. These are the top 10 trends we observed.

By Alexander Vitruk, Kamran B. Ahmadian, and Jonathan Maddalone

As we close the book on 2022, we look back at 10 of the top trends that we have seen in the consumer class-action space this past year.

No. 1: Increase in PFAS Consumer Class Actions

There was a rise in consumer class actions related to per- and polyfluoroalkyl substances (PFAS), which are a group of man-made chemicals that are alleged to be very persistent in the environment and in the human body and can lead to adverse human health effects.

No. 2: Increase in Third-Party Website-Tracking Litigation

There was an influx of third-party website-tracking litigation, including against hospital systems, where consumers alleged data privacy–related claims under state common law, state wiretap laws and other statutes, and even federal video privacy laws. Numerous complaints have alleged that Meta Platforms Inc.’s Pixel tracking tool sent consumers’ personal video consumption data from online platforms to Meta without the consumers’ consent.

No. 3: Increase in BIPA Consumer Class Actions

There was an increase in Biometric Information Privacy Act (BIPA) consumer class actions despite continued uncertainty regarding damages—i.e., whether a claim accrues (a) when data regulated in the statute is collected in the first instance or (b) each time a defendant commits recurring violations of the statute. The first BIPA trial in October 2022 took the latter interpretation, resulting in a historic $228 million judgment.

No. 4: Increase in Cryptocurrency Class Actions

Class-action lawsuits related to cryptocurrency assets soared, especially in New York and California, as cryptocurrencies crashed in value. While most are securities-related class actions, there are many consumer-based lawsuits that include claims based on consumer protection statutes.

No. 5: Increase in FCRA Class Actions

There was a continued increase in Fair Credit Reporting Act (FCRA) class actions, likely due to jurisdictional divides in laws and increased consumer ability to monitor their credit reports.

No. 6: Decrease in FDCPA Class Actions

There was a steady reduction in the filing of Fair Debt Collection Practices Act (FDCPA) class actions, likely due to a series of unfavorable rulings for plaintiffs. See, e.g., Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816 (5th Cir. Aug. 15, 2022) (holding that a statutory violation of the FDCPA alone is insufficient to confer Article III standing).

No. 7: Successes in Damages Challenges

There were significant successes by defendants in challenging statutory damages in false advertising cases involving low-cost consumer products. See, e.g., Montera v. Premier Nutrition Corp., 2022 WL 3348573 (N.D. Cal. Aug. 12, 2022) (holding that aggregate statutory damages may present due process concerns and that courts do have discretion to reduce an aggregate award of statutory damages).

No. 8: Creativity in Alleging Harm to Obtain Standing

Plaintiffs in consumer data breach class actions are becoming more creative in alleging harm to obtain standing when they have not experienced direct economic injuries. See, e.g., McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295 (2d Cir. 2021).

No. 9: Litigation Invoking De Minimis Rule

There was significant litigation in 2022 regarding whether a defendant could defeat class certification under the “de minimis rule” (i.e., the number of potentially uninjured putative class members defeats Rule 23 predominance). The U.S. Court of Appeals for the Ninth Circuit held that defendants could not. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 680–82 (9th Cir. 2022).

No. 10: Act Rendering Arbitration Unenforceable for Sexual Assault/Harassment Claims

In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which renders arbitration provisions unenforceable when a claim “relates to the sexual assault dispute or the sexual harassment dispute.” Although corporate entities should review their arbitration agreements in light of this new law, these arbitration provisions, including waivers of class action litigation, should continue to be enforceable against consumers under the Federal Arbitration Act.

Alexander Vitruk is an associate with BakerHostetler in Seattle, Washington, Kamran B. Ahmadian is an associate with BakerHostetler in Los Angeles, California, and Jonathan Maddalone is an associate with BakerHostetler in Denver, Colorado.

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