Dive Brief:

• The plaintiffs bar has orchestrated the largest-ever transfer of wealth from companies to their clients in the last three years through massive class action settlements, including almost three dozen settlements of $1 billion or more from 2022 to 2024, an analysis by the law firm Duane Morris shows.
• “This string of settlements marks the most extensive set of billion-dollar class action settlements in the history of the American court system,” says the report, released Jan. 7.
• Settlements involving per- and polyfluoroalkyl substances, known as forever chemicals, remain the biggest source of awards, with more than $11 billion going to plaintiffs and their attorneys in just two cases in 2024. The law firms representing the plaintiffs in the cases were awarded just under $1 billion in fees. “Numbers like this explain at least in part why we are continuing to see the plaintiffs’ class action bar grow in numbers and expand its reach,” the report says.

Dive Insight:

The number of class action filings and their certification rates aren’t going up but the plaintiffs bar is getting better at winning certification across substantive areas, the report shows. 

Of 432 proposed class actions in which courts ruled in 2024, 272 were certified for a 63% success rate, down from 75% in 2022 and 72% in 2023. But there was more success over that same period in a broader range of matters. “Plaintiffs obtained certification at a more consistent rate across substantive areas,” the report says. 

For example, certification was granted at an almost 86% rate in WARN cases, which involve notification requirements when companies make sizable layoffs, 70% of securities fraud cases and 68% of antitrust cases. These trends suggest “plaintiffs are being more selective in their investments and the cases they pursue through class certification,” the report says. 

Privacy, DEI upswing

Although the biggest plaintiff wins remain in the product liability area, led by PFAS cases, there’s an expansion of privacy cases and a surge of challenges to companies’ diversity, equity and inclusion policies. 

“Privacy [is] one of the hottest areas of growth in terms of activity by the plaintiffs’ class action bar,” the report says. “As technology continues to infiltrate our everyday lives, it provides ongoing inspiration for novel claims.”

Two of the biggest areas have to do with biometric information and website advertising technology. 

Illinois has been the leader on the privacy of people’s biometric data (facial scan data and fingerprints, among other things) with its 2008 Biometric Information Privacy Act, which was amended in 2024 in an attempt to reduce claims by clarifying that violations are by person, not each time someone is scanned. Notwithstanding the law change, BIPA filings are still on an upswing: 427 last year, up from 417 in 2023 and 362 in 2022. 

A more expansive view of what constitutes biometric data is one reason plaintiffs are upping their lawsuits despite the law change. Among other things, plaintiffs are saying websites that use virtual try-on technologies constitute BIPA violations if they’re not properly disclosed and handled. 

“Trends in BIPA litigation … illustrate plaintiffs’ continued creativity when it comes to applying the BIPA to new technologies,” the report says. 

Website advertising technology, despite being around for years, continues to attract lawsuits, often on the basis of laws that were passed before the technology existed. “Federal and state wiretapping statutes, eavesdropping statutes, the VPPA [Video Privacy Protection Act]” are among the laws plaintiffs are using, the report says. 

In 2024, plaintiffs filed more than 200 class action complaints alleging that Meta Pixel, Google Analytics, and other similar software code embedded in websites secretly captured plaintiffs’ web browsing data and sent it to Meta, Google, and other online advertising agencies, the report says.  

Privacy settlements last year totaled more than $2 billion, the fifth highest of 16 categories despite the years that the technology has been in place. 

There’s a “vast and growing patchwork quilt of differing approaches to adtech claims asserted under a variety of legal theories,” the report says.

With almost 20 states now having their own data privacy laws, cases are likely to stay high.   

Reverse discrimination, the other big growth area, has been fueled by the Harvard case that the U.S. Supreme Court decided in 2023 in favor of the plaintiffs, who argued racial admission preferences are illegal.

“Plaintiffs have filed a flood of challenges to corporate DEI programs, claiming that they constitute impermissible ‘reverse discrimination’ under Title VII,” the report says. 

Courts awarded almost $360 million in these and other discrimination cases last year. 

Arbitration defense erosion

Companies use of mandatory arbitration remains one of their biggest defenses against class action lawsuits but this tool has been eroding as plaintiffs have used new laws and court wins to get exceptions carved into these contract clauses. 

Although companies continued to win most motions to compel arbitration, the margin of victory is dwindling, the report shows. 

Courts issued rulings on approximately 167 motions to compel arbitration over the past year, with companies prevailing in 91 of those cases, a success rate of roughly 54%. That’s a drop from 2023 and 2022, when the success rate was 66% and 67%, respectively. 

Among other things, Congress in 2022 enacted the Ending Forced Arbitration Act, which prevents companies from requiring employees to arbitrate disputes if they’re related to sexual assault or harassment, and courts in the last couple of years have issued rulings that chip away at the Federal Arbitration Act by expanding carve-outs.  

In a key 2022 case, Southwest Airlines v. Saxon, the Supreme Court applied the transportation worker exemption to an airport ramp supervisor.

“This ruling set off a barrage of decisions finding individuals who touch goods that move in interstate commerce, or the means of transport for such goods, subject to the exemption,” the report says. 

“Given the enduring impact that the arbitration defense has in class action litigation, companies are apt to face additional hurdles from creative workarounds from the plaintiffs’ class action bar as courts continue to push ... boundaries,” the report says.