Akin Gump Strauss Hauer & Feld LLP’s consumer class action litigators have a well-established track record of success in defeating putative consumer class actions.
The team has obtained numerous victories in consumer class actions, at trial and in advance of trial, through dismissals with prejudice at the pleadings stage, summary judgment motions, voluntary dismissals by plaintiffs after we obtained key admissions in discovery and countless denials of class certification. In its Litigation Outlook 2018: Changes, Trends and Opportunities for Law Firms, The BTI Consulting Group, an independent research organization that focuses on how clients acquire, manage and evaluate professional services firms, ranked Akin Gump as a “Litigation Standout” in class action litigation and also recognized the firm on its “Fearsome Honor Roll” of the law firms opponents fear most in litigation. According to The American Lawyer, the team has achieved “bet-the-company wins for clients across the country.”
Our lawyers have successfully applied well-honed strategies that were critical to defeating putative consumer class actions, including:
- attacking the standing of named plaintiffs to pursue claims on behalf of a class, both pre- and post-Spokeo, based on failure to allege injury
- striking allegations of, and defeating efforts to certify, a nationwide class based on choice-of-law issues;
- using consumer survey data, industry experts, key admissions from plaintiffs’ depositions and publicly available information to demonstrate the existence of individual issues
- transferring the venue for putative class actions to locations and jurisdictions that were unfavorable to the named plaintiffs
- enforcing arbitration agreements with named plaintiffs containing class action waivers;
- challenging novel theories of liability to achieve voluntary dismissal of class actions in the preliminary stages
- securing dismissals with prejudice of putative class actions after showing that plaintiffs failed to plausibly allege the elements of justifiable reliance or fraudulent intent necessary to sustain fraud claims
- significantly narrowing the size of classes at the class certification stage, thereby reducing damages exposure and increasing settlement leverage.
Our lawyers are experienced in key legal areas, such as the enforceability of class action waivers in arbitration agreements; standing to pursue consumer protection, technology and privacy claims; and the efficacy of consumer disclosures. They appear regularly before states’ attorneys general, the Federal Trade Commission (FTC), Consumer Financial Protection Bureau, and Securities and Exchange Commission, all of which affect class action defense.
Consumer Class Actions: Areas of Focus
Our class action lawyers specialize in defending class action cases in a number of substantive areas of law, including:
Telephone Consumer Protection Act: Our consumer class action litigators regularly defend companies in class actions brought under the Telephone Consumer Protection Act (TCPA) and advise companies with regard to compliance and risk avoidance under the TCPA. Neal Marder recently achieved an early victory in a putative TCPA class action after he demonstrated that the plaintiff’s case lacked merit and thus persuaded the plaintiff’s counsel to voluntarily dismiss the case. He also represented an insurance company and provider of warranty services in successfully resolving a TCPA class action in Illinois federal court.
Unfair Business Practice/False Advertising Claims: Our consumer class action group regularly defends corporations in a range of industries against claims of false advertising and unfair business practices throughout the country. Our team has defeated class certification in a host of recent cases. We pride ourselves on obtaining early, definitive and favorable resolution of class action cases and use a host of innovative legal tactics to get those results. We have deep and broad experience litigating class actions alleging claims under California’s Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA) and False Advertising Laws (FAL), as well as numerous other states’ unfair business practice laws.
Fair Credit Reporting Act: Our consumer class action litigators regularly defend companies in class action litigation brought under the Fair Credit Reporting Act (FCRA) and advise companies regarding how to comply with, and minimize liability under, FCRA. Recent years have seen a surge of FCRA class actions, brought by plaintiffs’ counsel attracted to what they perceive to be a strict liability statute and significant minimum statutory penalties. Akin Gump’s multidisciplinary FCRA team helps clients navigate the complexities of the law and issues concerning data usage, employment, privacy and security. Our lawyers have defended companies in a wide range of industries, including health care, retail, hospitality, insurance, financial and telecommunications against putative class actions. We are also experienced in advising and representing clients against adverse actions based on information obtained from consumer reports or identity theft.
Consumer Data Privacy: Our lawyers are experienced in defending putative consumer class actions arising out of allegations concerning the use of consumer data, evaluating contemplated marketing activities to ensure compliance with federal and state privacy laws, assisting with data breach investigations and defending companies under investigation by the FTC with respect to privacy issues. We frequently interact with FTC staff, including the lawyers of the Division of Privacy and Identity Protection. We handle matters involving Section 5 of the FTC Act, the federal statute that is closest to imposing general privacy obligations under U.S. law, as well as more-focused consumer privacy statutes such as the Gramm-Leach-Bliley (GLB) Act, the Fair and Accurate Credit Transactions Act (FACTA), the Video Privacy Protection Act (VPPA) and the Children’s Online Privacy Protection Act (COPPA). We also have substantial experience advising clients regarding laws governing the communications channels used for marketing, such as the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule, and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act.
Investigations by the FTC’s Bureau of Consumer Protection: We have a long history of successfully handling client matters before the FTC. We closely track the FTC’s policy and enforcement actions and are well-known and respected by the Commission and its staff. We handle all areas of concern to the FTC’s Bureau of Consumer Protection (BCP), including investigations and enforcement actions under Section 5 of the FTC Act or other of the consumer protection-focused statutes. When a client is the subject of an FTC inquiry, we are adept at handling the necessary factual investigation, advocating before relevant decision-makers and, if necessary, negotiating consent decrees or defending the enforcement complaints if filed. We also have represented client interests in rulemaking procedures, policy studies and reports, industrywide investigations and legislative activity. In such efforts, we often combine teams of FTC-focused lawyers and public law and policy advisors.
Our BCP work has included behavioral advertising and shopper data tracking policy regulation; advice on rebate and pricing practices in the retailing industry; deceptive health advertising, including health benefit claims on food products; financial regulation and credit reporting; and privacy (related to both data breach investigations and recent legislative activity). We have defended a large number of companies under investigation by the FTC in the areas of advertising and marketing, privacy, service industry, telemarketing and credit practices. Our clients have included numerous supermarket retailers, their suppliers and other related industry partners.
In the consumer protection area, the FTC has been actively seeking, with major congressional support, greater ability to seek civil penalties and broader rulemaking authority. Either would greatly change the traditional balance between the FTC’s extremely broad authority to bring cases to define deceptive or unfair practices and its limited ability to impose major remedies in most cases. Akin Gump’s experienced and accomplished public law and policy practice is able to provide clients with effective advocacy to voice their positions and affect legislation and policy, either before Congress or the FTC.
Akin Gump also has experience and contacts with state attorneys general, who are often active in consumer protection matters. When state attorneys general investigate our clients in parallel or separate investigations, we develop strategies to minimize regulatory or prosecutorial overlap and coordinate defense of separate investigations. As a result, we have successfully litigated matters against state attorneys general.