Class Action Defense

Benesch litigators have successfully defended hundreds of high-stakes class action suits, including more than 100 cases under the Unfair Competition Law of California. Our work includes defending clients facing consumer fraud, false labeling and advertising, deceptive practices, antitrust allegations, claimed violations of automatic renewal laws, data breaches and disclosure, and statutory privacy claims, including those brought under the Telephone Consumer Protection Act (TCPA), the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act and the Biometric Information Privacy Act (BIPA).

Consumer Privacy/CIPA Claims

We have been defending consumer privacy class actions since they first arose and have now represented more than 60 clients in cases involving claims under federal and state consumer privacy laws, including the Federal Wiretapping Act, Video Privacy Protection Act, California Invasion of Privacy Act, and more. Some of our team members work on these issues practically full-time, and we are therefore well-versed in the relevant technologies and the current state of the case law, both of which are complex and constantly evolving. We have won on motions to compel arbitration, advanced successful motions to dismiss in state and federal courts and obtained multiple voluntary dismissals. As leaders in the space, we also provide our clients with recommendations on how to minimize the risk of class actions on a going-forward basis.

Telemarketing/TCPA-Related Claims

Our experience with telemarketing and TCPA-related claims is extensive. We have litigated more than 100 cases involving claims under the TCPA and state telemarketing laws, obtaining summary judgments, winning motions to dismiss, obtaining voluntary dismissals, achieving denials of class certification and defeating nationwide putative class actions on behalf of global multinationals and some of the largest companies in America. Benesch lawyers have litigated telemarketing cases in more than 30 states throughout the country and serve as national telemarketing counsel for numerous companies.

Illinois Biometric Information Privacy Act Claims

Benesch has been at the forefront of BIPA litigation, defending cases in the fingerprint, palm scan and facial geometry contexts. Our class action litigators have handled more than 20 BIPA class actions, addressing novel issues like the impact of HIPAA on the statute and constitutional defenses. We have also successfully used critical arbitration, preemption and government contractor defenses to avoid substantial risk on the pleadings. Our lawyers are also regularly tapped to craft and revise biometric policies.

Strategic and Successful in Handling Groundbreaking Cases

• 300+ HIGH-STAKES CLASS ACTION SUITS FILED OR THREATENED OVER THE PAST DECADE
• Defended more than 100 consumer class actions involving allegations of consumer fraud, deceptive pricing, false advertising, federal and state privacy laws and automatic renewal laws
• Defended more than 50 filed or threatened retail consumer class actions
• Litigated more than 100 cases under the Unfair Competition Law
• Litigated more than 100 federal statutory cases under statutes like the TCPA, FCRA and FACTA

Innovative Approaches

Our team has prevailed in numerous groundbreaking cases, applying novel strategies, arguments and approaches to evidence presentation that have resulted in outright dismissal of cases or persuaded opposing counsel to walk away from cases or settle on favorable terms for our clients. We use creative approaches to expose plaintiffs’ manufactured claims, such as video security footage and metadata from our opponent’s court filings to win cases.

Working closely with each client and collectively with attorneys across Benesch’s other practices, we build the right team, keeping it lean and nimble, to ensure the best outcome cost-effectively for our clients. We assess the likelihood of success and determine the best strategy tailored to meet our clients’ needs and business objectives.

Beyond the courtroom, our attorneys have represented clients in investigations brought by state and federal public enforcers, including several actions brought by government task forces in California.

At the Forefront of the Law

Our attorneys are at the forefront of the law. We are often selected as nationwide counsel on a variety of topics because of our near-encyclopedic knowledge of the laws and regulations and our impressive record of success in resolving consumer statutory cases. And, in California specifically, we are frequently chosen as counsel due not only to our knowledge and track record, including with matters brought by the California Auto-Renewal Taskforce (CART), but also our presence and reputation in the state.

A Preeminent Retail Litigation Practice

While many firms purport to offer retail and e-commerce services, Benesch is one of the only firms in the U.S. with a dedicated, decades-long practice in this space. We have defended dozens of high-stakes retail class actions for hundreds of leading retail clients, including brick-and-mortar and prominent digital retailers and e-commerce companies nationwide.

Proactive Counsel That Minimizes Risk Exposure

We proactively counsel clients on complex consumer, marketing and privacy issues, including consumer-facing disclosures, and provide guidance on conducting effective marketing campaigns within the bounds of state unfair competition and consumer protection laws. Our lawyers draft privacy policies, arbitration clauses with class waivers, product warnings, representations and warranties, and terms of use and service. Clients also often retain us to provide onsite training and refreshers for their new and existing staff on risk avoidance best practices and compliance-related matters.

Representative Matters

• Won an affirmative motion to strike class claims, resulting in a denial of class certification as to monetary relief, in a proposed class action alleging deceptive pricing practices. Our motion advanced novel arguments based on the class waiver provision in our client’s terms of use that had not been raised in other, nearly identical litigation. Hennessey v. Kohl’s Corp., 571 F. Supp.3d 1060 (E.D. Mo. 2021).
• Won on summary judgment in a pricing case alleging that our client listed deceptive “compare at” reference prices on its price tags, by persuading the court as a matter of law that our client’s practices were not deceptive. This was the only pricing class action to date where a judge held as a matter of law that the retailer’s pricing practices were not deceptive. Sperling v. Stein Mart, Inc., 291 F. Supp.3d 1076 (C.D. Cal. 2018).
• Secured dismissal of a heavily publicized series of putative class actions across the country alleging that our client’s changes to its satisfaction guarantee denied customers the benefit of the guarantee in place when they made their purchases. Each court found that plaintiffs lacked standing to pursue their claims because they had not suffered a concrete injury and their purported future inability to make returns was too speculative.
• Obtained complete dismissal in state court of a class action brought under the Fair and Accurate Credit Transactions Act, creating incredibly helpful case law in Florida in the process. The decision was affirmed after oral argument in the Fourth District Court of Appeals and was denied review by the Florida Supreme Court. Southam v. Red Wing Shoe Co., Inc., 343 So.3d 106 (Fla. 4th DCA 2022), review denied, No. SC22-1052, 2022 WL 16848677 (Fla. Nov. 10, 2022).
• Won a rare affirmative motion to deny class certification for our client Albertsons, cutting short a putative class action under the Telephone Consumer Protection Act at the pleading stage. Dorfman v. Albertson's, LLC, No. 1:18-CV-00094-DCN, 2020 WL 86192, at *1 (D. Idaho Jan. 7, 2020).
• Obtained dismissal with prejudice of a consumer fraud class action brought against Blistex alleging that the packaging of one of its products did not allow the consumer to obtain the entirety of the contents. Hillen v. Blistex, Inc., No. 17 C 2074, 2017 WL 2868997, at *1 (N.D. Ill. July 5, 2017).