By Jaime E. Moss, Esq. at Consumer Safety Legal
It’s only the beginning of 2020, and we are already facing difficult questions and unique challenges in our ever-changing legal landscape. To take a glimpse at the emerging consumer safety legal issues facing us, we must first reflect on past developments to understand the evolving issues in federal, state, and multi-district litigation courtrooms across the country. Class action and mass tort lawsuits provide consumers a means to obtain redress in cases where individual suits would be inefficient or impractical, and can address a variety of issues, including environmental harms, consumer products, pharmaceutical drugs and devices, securities, data privacy, and employment matters. The number of consumer protection class actions has nearly tripled in the past decade. The following is a forecast of what we can expect to see in 2020.
Environmental contamination is a pervasive problem affecting the lives of Americans, and transcends global borders. Despite regulations meant to protect Americans from pollution and toxins that contaminate our drinking water, air, and soil, companies mishandle their chemical byproducts. Laboratory tests done on drinking water have found an arsenal of toxic chemicals including, but not limited to, PFAS “forever chemicals”(including PFOA and PFOS), arsenic, benzene, chromium, radium, lead, copper, mercury, and pesticide and fertilizer runoff. These chemicals create grave health hazards such as cancer, infertility, reproductive problems, birth defects, cognitive development, neurotoxins, and a host of other health issues. We will continue to see environmental contamination issues emerge over the next year and beyond.
Vehicle-related class action lawsuits will continue to become ever more prominent, as there are more cars on the road than ever before. And, most urgently, when there is a defect in a car, it necessitates the recall of an untold number of vehicles by that automaker, followed by lawsuits. The cases, to name a few, span from the Volkswagen “clean diesel” litigation, wherein the company fraudulently concealed, falsely advertised, and violated consumer laws by installing software on certain gasoline-powered vehicles that emitted more carbon dioxide on the road than when tested, to sudden and unintended acceleration, defective airbags, and faulty ignition switches. With the advent of self-driving vehicles, surely the number of lawsuits will grow exponentially.
A data breach is a cybersecurity incident in which information is stolen by unauthorized access to a network containing private, sensitive, proprietary, or confidential data. Data breaches affect both consumers and businesses, causing financial and personal harm. The damage they do is costly to repair, vastly time consuming, and oftentimes affects the reputations of private citizens and companies, both large and small.
After several high-profile data breach cases, there has been a steady increase in class action litigation relative to the number of data breaches. Data breaches in places like hotels, hospitals, universities, and retail stores have exposed personal details and contact information of consumers. On a state-specific level, the California Consumer Privacy Act (“CCPA”), which went into effect January 1, 2020, expands upon previous data privacy laws and is intended to enhance privacy rights and consumer protection, becoming the most comprehensive privacy legislation in the nation. Consumers whose information is breached will have the ability to bring suit against companies that are subject to CCPA compliance. Due to this Act, it is forecasted that there will be an increase in class actions filed in California courts.
Sexual Assault, Abuse, Harassment, and Misconduct
The past several years have exposed an alarming increase in high-profile sexual assault, abuse, harassment, and misconduct allegations, which have been notoriously underreported. After allegations against Penn State, USA Gymnastics, Boy Scouts of America, the Catholic Church, Jeffrey Epstein, Harvey Weinstein, and numerous doctors, to name but a few, individuals have felt empowered to speak out in entertainment, sports, television, politics, religious organizations, academics, and the corporate world. New laws, such as the New York Child Victims Act (“CVA”), extends the statute of limitations for survivors of child sexual abuse, enabling more victims to step forward and seek justice. As more individuals step forward to tell their haunting stories, more litigation will ensue.
The Equal Pay Act requires that men and women be given equal pay for equal work. It prohibits wage disparity between employees on the basis of sex. However, the pay gap still exists between genders in spite of the law. In recent years that pay gap has been brought to public attention, and equal pay lawsuits have filled courthouses throughout the country. A case which highlighted the wage gap controversy was when the U.S. Women’s National Soccer Team sued the U.S. Soccer Federation. Recently, the WNBA followed in the fight for equal pay, as well as female employees of Disney and Nike. The wage gap issue remains pervasive in all industries, in every profession, and across economic lines. The increase in lawsuits can work towards overhauling company policies.
Defective and Dangerous Pharmaceutical Drugs and Devices
Mass tort litigation has seen a number of significant cases emerge over the past several years. The number of pharmaceutical drugs, cosmetics, and consumer products causing cancer and lymphoma has progressively increased, such as in the current Valsartan and Losartan, Zantac, Talcum Powder, Breast Implant, and Roundup litigations, as well as the recent Belviq recall.
Mass torts addressing female-specific issues will continue to emerge, in addition to the current Essure and Breast Implant cases. Consumer products including the 3M dual-ended Combat Arms Earplugs and Juul Labs, Inc.’s vaping products will forge onward. Cosmetic toxic tort litigation will begin to increase, as more products are found to cause serious health effects, such as permanent hair dyes, chemical hair straighteners, and cosmetics contaminated with asbestos and other dangerous additives. The trend of public entities and local governments asserting their rights when victimized by fraud, negligence, and other forms of malfeasance will continue. Unfortunately for consumers, new prescription drugs are getting approved by the Food & Drug Administration (“FDA”) faster, but with weaker evidence and clinical testing to support the drug applications. This is compounded by regulatory and financial implications, such as the billions of dollars that drug companies pay to the FDA under the Prescription Drug User Fee Act (“PDUFA”), part of which is spent on FDA employees’ salaries for drug reviews. This means there are more drugs on the market, but less assurance they are safe and effective. With the lax oversight, mass tort litigation has no end in sight.