Issues and Appeals

Led by partners Ryan D. Andrews and Roger Perlstadt, our Issues and Appeals Group routinely litigates cases of first impression in state and federal courts nationwide. The Issues and Appeals Group has won significant victories, including in several state and federal appellate courts, and in the United States Supreme Court. These decisions have created favorable law on numerous subjects—including common law privacy and nearly all of its statutory variants—fundamentally changing how entire industries operate.

These victories include:

United States Supreme Court

• Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In Spokeo, the Court rejected the argument that individuals must allege “real world” harm to have standing to sue in federal court; instead the court recognized that “intangible” harms and even the “risk of future harm” can establish standing. Commentators have called Spokeo one of the most important consumer privacy cases to come before the Supreme Court in recent times.

Federal Appellate Courts

• Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019), cert. denied 140 S. Ct. 937 (2020). Secured affirmance of order certifying class and challenging Article III standing in the first case brought under the Illinois’ Biometric Information Privacy Act. The victory paved the way for the class’s $650 million settlement—the largest ever in a consumer privacy case.
• Kater v. Churchill Downs Inc., 886 F.3d 784 (9th Cir. 2018). In a groundbreaking victory against one of the largest gambling companies in the world, the Ninth Circuit reversed the district court’s holding that Churchill Downs virtual casino app was not illegal, finding that the app’s virtual chips constituted “things of value” under the anti-gambling law.
• Sosa v. Onfido, Inc., 8 F.4th 631 (7th Cir. 2021): Won affirmance of district court’s refusal to compel arbitration of biometric privacy case against facial recognition technology company.
• Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1113 (9th Cir. 2022), cert. denied, No. 22-920, 2023 WL 2959423 (U.S. Apr. 17, 2023). Secured affirmance of jury verdict in certified TCPA class action over challenges to class standing under Article III and defendant’s motion for a new trial based on a post-verdict waiver from the FCC.
• Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d 792 (7th Cir. 2018), cert denied, 139 S.Ct. 923 (2019). The Seventh Circuit affirmed our landmark $76 million TCPA settlement resulting from illegal robocalls offering a free cruise. By denying a host of different appeals, the court clarified that a common argument regarding the award of fees made by defendants and objectors is “unproductive” and that professional objectors (who do not add even marginal value to a settlement) are not entitled to compensation.
• Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068 (9th Cir. 2019): In a decision with wide-ranging implications for the federal common law of agency, won reversal of summary judgment on the basis that the defendant could be held liable for ratifying the actions of its contracted debt collectors.
• Beaton v. SpeedyPC Software, 907 F.3d 1018 (7th Cir. 2018), cert denied, 139 S. Ct. 1465 (2019). The Seventh Circuit affirmed the district court’s order granting class certification on a nationwide class and Illinois subclass of software purchasers, recognizing that “[c]onsumer class actions are a crucial deterrent against the proliferation of bogus products whose sticker price is dwarfed by a court filing fee.” The decision also includes consumer-friendly rulings on a host of commonly-occurring issues in class action practice, from amended class definitions, to consideration of expert witness testimony, to the propriety of resolving individual issues though a claims process after judgment.
• Warciak v. Subway Restaurants, Inc., 880 F.3d 870 (7th Cir. 2018). Reversing an order compelling arbitration of a spam text message marketing class action, the Seventh Circuit held that Subway could not enforce an arbitration agreement in a wireless carrier’s terms of service that neither party had signed.
• Yershov v. Gannett Satellite Info. Network, Inc., 820 F. 3d 482 (1st Cir. 2016). In a landmark decision, the Court (including retired Justice David Souter) reversed the dismissal of Video Privacy Protection Act claims finding that mobile app users are “subscribers” and unique device IDs can be “personally identifiable information.”
• Satterfield v. Simon & Schuster, Inc., 569 F. 3d 946 (9th Cir. 2009). In a case of first impression, the Court reversed the grant of summary judgment to defendant finding both that a text message is a “call” and that dialing equipment need only have the “capacity” to be an autodialer under the TCPA.
• Resnick v. AvMed, Inc., 693 F. 3d 1317 (11th Cir. 2012). In a medical data breach class action, the Court reversed dismissal and adopted plaintiff’s novel “overpayment” theory of damages.
• Wigod v. Wells Fargo Bank, NA, 673 F. 3d 547 (7th Cir. 2012). Plaintiff alleged that the bank wrongfully denied her a loan modification guaranteed to her through the Home Affordable Modification Program (“HAMP”). On appeal, the Court reversed dismissal of plaintiff’s claims as preempted by the HAMP and confirmed that plaintiffs could raise contract claims based on certain violations of the HAMP program guidelines.
• Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 523 (7th Cir. 2011), reh’g en banc granted in part, opinion vacated in part on other grounds sub nom. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 649 F.3d 799 (7th Cir. 2011), and on reh’g sub nom. Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722 (7th Cir. 2011). We represented former Illinois Governor Rod Blagojevich pro bono. On appeal we secured legislative immunity for the former governor from civil RICO and other claims related to a “pay-to-play” scheme brought by a group riverboat casinos.
• Gubala v. Time Warner Cable, Inc., 846 F. 3d 909 (7th Cir. 2017). Authored amicus brief on Article III standing and privacy issues followed and referenced favorably by the Court.

State Appellate Courts

• McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511. Unanimous victory at Illinois Supreme Court finding that employee’s claims under the Illinois Biometric Information Privacy Act are not barred by the exclusivity provisions of the Workers’ Compensation Act.
• W. Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978. Securing affirmance in Illinois Supreme Court of summary judgment ruling finding insurance coverage in a BIPA class action leading to a favorable settlement.
• McCormick v. Adtalem Glob. Educ., Inc., 2022 IL App (1st) 201197-U. Secured affirmance in Illinois Appellate Court of approval of $44.95 million class settlement agreement against for-profit DeVry University for claims that it made misleading and deceptive statements about the income and employment statistics of DeVry graduates and providing refunds to impacted students.
• NCAA v. Finnerty, No. 21S-CT-409, 2022 WL 2815848 (Ind. 2022): Successfully defeated NCAA’s attempt to have Indiana Supreme Court adopt the apex doctrine and prevent the depositions of several high-level NCAA executives in college football concussion litigation.
• Clark v. Gannett Co, Inc., 2018 IL App (1st) 172041: Obtained reversal of denial of sanctions motion against professional objector attorneys who “engaged in a fraud on the court” by attempting to “escape responsibility by appearing not to practice law in [Illinois].”
• Klaudia Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175. The Illinois Appellate Court held that Illinois’s Biometric Information Privacy Act does not require an addition harm other than the violation of a person’s right to privacy in personal biometric data.

Recent Significant District Court Opinions

• Doe v. Roblox Corp., 602 F. Supp. 3d 1243, 1260 (N.D. Cal. 2022). Defeated motion to dismiss with a novel argument that the court needed to consider the Roblox user’s age (a minor) in determining whether a reasonable person would be on notice of the terms of use (including an arbitration clause). Court also rejected defendant’s arguments on CDA Section 230 immunity and failure to plead UCL claims and fraud.
• ACLU v. Clearview AI, Inc., 20 CH 4353 (Cook Cty, Ill. Aug. 27, 2001). Pro bono counsel to ACLU and defeated Clearview’s motion to dismiss raising arguments about personal jurisdiction, extraterritorial application of BIPA, dormant commerce clause, and the First Amendment.
• Johnson-Morris v. Santander Consumer USA, Inc., 194 F. Supp. 3d 757 (N.D. Ill. 2016). The court denied motion to dismiss claims under the Fair Debt Collection Practices Act involving complex issues of legal tolling and statutory interpretation.
• Mocek v. Allsaints USA Ltd., 220 F.3d 910 (N.D. Ill. 2016). In a precedent-setting opinion, the court rejected the defense bar strategy of removing class actions to federal court and then moving to dismiss for lack of Article III standing.