Insights

As companies consider taking class actions to trial, a blockbuster decision from the U.S. Supreme Court instructing lower courts not to defer to federal agencies’ interpretations of the statutes Congress charged them with administering may prove useful. Companies should also be aware of a second decision holding agencies’ use of in-house judges to mete out civil penalties to be unconstitutional.

On a very basic level, generative artificial intelligence (Gen AI) takes in vast amounts of information, analyzes it, and provides results. It uses mathematical algorithms to find patterns in the information and exploits those patterns to achieve the user’s goal.

In class action lawsuits, much of the focus is on pretrial motions—and often, the appeal of lower court rulings on those motions. But for defendants, two trends could make it more difficult to win on those appeals.

Artificial intelligence (AI) has been finding its way into business for some time, but that trend was dramatically accelerated with the arrival of generative AI (Gen AI), which can create new content on its own. The release of a relatively easy-to-use version of Gen AI in late 2022 was followed by the rapid adoption of the technology—and not long after, by the arrival of class action lawsuits centered on AI.

As high-stakes class action lawsuits multiply, the standard playbook for defending against them may no longer work. A revised strategy involves some key departures from the traditional approach.

In August 2024 judge’s decision to dismiss a major class action claim against bottled water makers will likely do little to stem the flow of microplastics litigation in the year ahead, says Meshach Rhoades, managing partner of Crowell & Moring’s Denver office.

Class actions are alive and well in the world of employment law. Much is happening, and there’s plenty more to come, says Rebecca Springer, a Crowell & Moring partner who serves as talent and inclusion lead in the firm’s Labor and Employment Practice.

A cross-border lawsuit filed in Italy in 2024 could be the first test of how recently imposed, plaintiff-friendly changes in European Union law will impact class actions in the EU.

A nascent trend is forming in the world of health care class actions. Plaintiffs’ attorneys are taking the excessive-fee concept pioneered in retirement plan litigation and applying it to self-funded corporate health insurance plans.

Class action litigation remained strong in 2024, on pace to match the past two years. Last year expanded the trend of class action litigation driven by technology, regulatory changes, and consumer expectations. Class action litigation based on privacy and data security breaches increased last year—including recent high-profile cases and significant settlements. Similarly, consumer rights and product liability cases have continued to increase and to drive large settlements due to consumer awareness of their rights and amendments to consumer protection laws. These developments and increasing trends in class action litigation provide numerous opportunities for litigation in many sectors.

After a surge in privacy class action lawsuits in 2024, San Francisco-based Crowell & Moring partner Kristin Madigan says she expects to see more of the same in the year ahead, as plaintiffs’ lawyers continue testing out new legal theories to bring claims against any company that collects, uses, or sells customer data.

A trend in product liability litigation has emerged over the past few years: Plaintiffs’ attorneys are increasingly choosing to bring class actions based on “economic loss” instead of the more traditional personal injury claim.

Key developments expected this year, as the FDA ramps up the implementation of major new cosmetics regulations, could shape the class action landscape for the beauty and wellness industry for years to come, says Crowell & Moring partner Robbie Rogart Jost.

Expect the recent surge in class actions challenging sustainability claims made by consumer goods companies to continue in the year ahead, says Crowell & Moring partner Jason Stiehl, who is a member of the firm’s Litigation and Advertising and Brand Protection groups.

Expect the recent surge in class actions challenging sustainability claims made by consumer goods companies to continue in the year ahead, says Crowell & Moring partner Jason Stiehl, who is a member of the firm’s Litigation and Advertising and Brand Protection groups.

A 2023 court decision on the legality of litigation funding agreements will likely continue to cast a cloud of uncertainty over collective actions in the United Kingdom at least until the summer of 2025, when a key government advisory board report on the issue is expected to be published.

Throughout history, businesses have used new technologies to make themselves more efficient and competitive. Some of these technologies—operating software, internet search, social media—have led to antitrust litigation in varying contexts.

After the recent barrage of lawsuits filed by copyright owners against artificial intelligence platforms, it will likely take a few years for the dust to settle on multiple legal issues surrounding the new technology and intellectual property rights, says Crowell & Moring partner David Ervin, who co-leads the firm’s Advertising & Brand Protection Group.

Most companies acknowledge that a robust pipeline of qualified, diverse talent is critical. Recent legal developments in the areas of diversity, equity, and inclusion (DEI) and artificial intelligence (AI) are creating potential new challenges for employers trying to maintain those pipelines. The result is likely to be an increase in employment lawsuits in 2024 and beyond.

When it comes to environmental laws and regulations, the only question is when—not if—the courts will be asked to resolve contentious issues. Such is the case with a rule proposed by the Environmental Protection Agency, under the Clean Air Act, to limit the greenhouse gas emissions of fossil fuel-fired power plants.