How has COVID-19 impacted this field? How are you helping clients respond to COVID-19-related issues?
As usual, the plaintiff’s bar has been opportunistic and made the most of the situation. There have been a large number of filings related to contractual cancellations and delays that resulted from COVID-19, as well as refund and rebate class actions. If I had to guess, the number of consumer class cases has increased during the pandemic. I would think we will continue to see a lot of action in this area, as the full ramifications of COVID-19-related policies are just now materializing. For example, a line of cases came out of the processing of the initial COVID-19 relief packages and how banks were prioritizing certain petitions over others. I would expect other, similar consumer actions. COVID-19 has also created a slowdown in court cases, which freed up time for these enterprising plaintiff’s counsel to create additional theories to pursue.
We are fortunate to have at Loeb a great Advertising & Media practice group that is generally counseling its clients on market risks associated with all forms of advertising- and privacy-related legal issues. The flood of consumer lawsuits related to cancellations or terminations of contracts and memberships, as well as refund requests for future events, has triggered a stronger collective awareness of the risks inherent in consumer relationships and how sudden market disruption—like COVID-19—can be avoided or anticipated.
Similarly, the increase in privacy-related statutes in the past year has raised similar awareness among our clients about proactively avoiding litigation in areas like website tracking and biometric recognition tools. This has dovetailed into advising clients on best practices for amending contractual terms, changing their terms of use, or advising on discrete COVID-19-impacted areas, like pricing, sanitation products and consumer behavior studies. For example, we have encouraged our clients to consider preemptive language in their terms of use to anticipate unforeseen events, and provided clearer messaging on when, and how, to amend those terms of use.
What does a consumer litigation practice look like in a post-pandemic world?
One observation is that it seems that both sides in litigation have been quicker to discuss resolution, given the uncertainties and realities that have been presented by a post-pandemic world. The pandemic has also delayed trial dates significantly, which correspondingly has caused more delay in the discovery process. As discussed earlier, I think this has resulted in freeing up time for plaintiff’s counsel to explore more creative theories and avenues. It has also given some breathing room for some of our clients to think about ways to streamline processes and improve efficiency internally, for example by incorporating more proactive litigation tracking technologies.
This evolution requires us to be more aware of our clients’ overall business needs, and really integrate ourselves as a true counselor to the business. Historically, consumer defense work was seen as more of a “fireman” role, where you were called in at a critical moment to put out a blazing fire. Now, we have the opportunity to serve more as a consultant, identifying the risks that might cause the fire and helping our clients mitigate those risks.
The cases themselves are really just the same type of litigation dressed up in new clothes. What once was “failure to post an ATM notice” Electronic Fund Transfer Act litigation became “failure to truncate credit card” Fair and Accurate Credit Transactions Act litigation and has now evolved into the recent surge in data privacy and Telephone Consumer Protection Act (TCPA) litigation.
The most challenging, but rewarding, part of being a consumer litigation attorney is appreciating the actual risk, rather than the perceived risk, presented by a case. And that comes from years of experience in litigating cases, as well as negotiating settlements on behalf of clients. Lawyers who are still in the “defend at all costs” mentality post-COVID-19 are doing their clients a disservice. Surely there are cases that require that mentality, but a large number of cases are resolved earlier at lower cost than the price of fighting. Knowing your clients’ business during these difficult times, and protecting their reputation and goodwill, has to be taken into consideration.
Aside from the impacts of COVID-19, what are the major trends you’re watching?
Labeling and deceptive advertising remain hot topics in consumer litigation. Plaintiff’s counsel continue to focus on food and beverage ingredient-related claims, including in the pet food space. Plaintiff’s counsel continue to actively challenge ingredient claims, such as “all natural,” but have also increased their technical claims, conducting scientific reviews of products to search for trace ingredients and challenging claims such as “grain-free.”
There has also been an uptick in privacy litigation as California Consumer Privacy Act (CCPA) litigation becomes more active, and as more states pass biometric information statutes similar to the Illinois Biometric Information Privacy Act (BIPA).
In Illinois, BIPA litigation still dominates the docket, with claims ranging from multimillion-dollar settlements related to online photo biometric monitoring to smaller employment claims for use of employee retina and fingerprint scan technology. California’s CCPA has likewise resulted in a range of lawsuits, including some interesting “right of publicity” claims for websites that gather public images from yearbooks or other sources to connect people. In New York, website accessibility litigation (under the Americans with Disabilities Act) remains incredibly active. These lawsuits are typically brought by consumers alleging a failure to have appropriate website tools for disabled individuals, such as having appropriate screen readers for blind consumers.
In addition, there has been an increased focus on consumer-related claims in the marijuana industry, including a resurrection of TCPA claims related to marketing efforts by local dispensaries using text messaging.
What makes Loeb a leader in this space?
Loeb has a unique presence in that it is a leader in advertising and marketing, so it is counseling clients daily on the risks and trends in that space. We also know the business of a client much more intimately than does a typical litigation defense firm that is pitching for a piece of litigation. Loeb constantly partners with its clients to improve their media and technology presence, which allows us to provide a unique approach to defending litigation for clients other than a simple “defense of the claims filed” approach. As discussed above, Loeb is an integrative partner. We aren’t just a “helicopter” firm, where we drop in and out for unique issues. We want to be seen as a long-term consultant, working alongside our clients across multiple areas, ready to assist when any issues—good or bad—arise. For example, one client may regularly call on Loeb to assist with reviewing its marketing campaigns or terms of use, and then discover a competitor has violated some of the principles that we have instilled proactively, causing harm to our client. Loeb is equipped to truly assist a business across a range of matters—from drafting documents to reviewing changes in regulations to defending or pursuing litigation to protect its brand.
What makes your practice unique and different?
My practice is unique in that I spend almost an equal amount of time counseling my clients on the market risks and trends [as I do litigating], to help them avoid “bet the company” litigation. I would much rather be their go-to counselor than the one-off fireman for a problem we could have prevented. I also have a unique perspective having started my career as a plaintiff’s class action lawyer, and subsequently switching to the defense side. It gives me a unique perspective on the mindset of the plaintiff’s bar and where they perceive risks and strengths. Throughout my career, I have maintained a good working relationship with both sides of the bar, including in my time as the chair of the Chicago Bar class action committee, which allows me a quick, direct path in most instances to get quickly to the heart of any case that has been filed against a client.
