Visa Inc., Mastercard Inc. and several banks learned the hard way in 2012 how damaging a consumer class action can be. That was the year the finance companies inked an antitrust settlement totaling $7.25 billion with U.S. retailers and individuals over allegations the credit-card issuers fixed debit- and credit-card fees, creating an anticompetitive environment.
Although a class action settlement of such a massive size is rare, in general consumer class action settlements are commonplace. A new report from NERA Economic Consulting, a global consulting firm that deals with business and legal challenges, shows that consumer class action settlements are on the rise. The report also found that an emerging type of consumer case—the privacy violation class action—has been gathering steam.
The NERA study examined settlements reached in consumer class action cases between the beginning of 2010 and the end of 2013, excluding cases that involved employment and securities law. Out of the 479 settlements studied, there was an aggregate settlement value for 321. In the other 158 settlements, the value could not be determined in an exact way because the size was either not capped or depended on the number of individuals who came forward during a claim process. In some of the 158 settlements, it was hard to determine the aggregate value because the benefits that the class received were hard to place a value on.
Overall, the number of consumer class action settlements appears to be on the rise. In 2010, there were 66 settlements identified by NERA researchers, but by 2013 this number increased to 161. It isn’t just the number of settlements that has gone up, the total value year over year has risen as well. Even excluding two giant payouts—the $7.25 billion Visa/Mastercard settlement from 2012 and a 2013 Toyota Motor Corp. consumer class action settlement of $1.6 billion—the study shows a steady increase in the total annual dollar amount in settlement funds between 2010 and 2013. Examining the 321 settlements for which aggregate payout data was available, the study found total value of settlements increased from $1.7 billion in 2010 to $2.76 billion in 2013.
NERA broke out consumer class action settlement data by industry as well. Out of the 321 cases with reported value, 52 percent of the companies paying out settlements were from the banking and finance category, a statistic that was influenced by the Visa and Mastercard settlements, but only to a certain extent. “It’s not just Visa,” Dr. Stephanie Plancich, a vice president at NERA and one of the authors of the report, told CorpCounsel.com. “It’s not just that most of the dollars are clustered in banking and finance, but there are a large number of cases settling in banking and finance as well.” Some 19 percent of settled cases were in this category.
Other areas with larger numbers of consumer class action settlements included cosmetics and pharmaceuticals, at 13 percent of the settlements with reported value, and business/consumer services and food products, which each accounted for 11 percent.
It’s also helpful to know what kinds of allegations consumers were making in consumer class action settlements and what types of claims resulted in the biggest payouts. NERA researchers determined that out of the 321 disclosed settlements, fraud and false advertising accounted for the largest actual number at 24 percent of the total, but that antitrust consumer class actions brought in the greatest number of settlement dollars, 56 percent of the total. The report concludes that the Visa/Mastercard antitrust case is a driver behind the sizable portion of settlement dollars falling into the antitrust category. However, even without Visa/Mastercard and the Toyota settlement, a total of 63 percent of payouts were still from antitrust and fraud cases.
One area other than antitrust and fraud in which there’s been a notable increase in the number of suits is in consumer privacy violations and it hasn’t been just technology companies that have been targets. “They are something that affects all industries nowadays because everyone has electronic data,” said Plancich. “You have to worry about data breaches.”
The NERA report divides these types of class action settlements, which totaled 35 in 2013, as opposed to only 5 in 2010, into two subcategories. One is classified as related to spam, which the report defined as unwanted phone calls or text messages. The other subcategory is misuse of customers’ personal information. More of the cases fell into the misuse of information category, but in the banking and finance sector and the telecommunications sector, spam was the more common reason for the class action.
In addition to growth in the number of suits, the privacy consumer class actions proved to be somewhat unique because of the composition of payouts involved with settling them. These types of settlements, along with those in false advertising and misinformation cases, were the two most likely to include charitable donations as part of the settlement package. In five out of the six cases in the study for which a charitable donation was the only type of compensation in the settlement, the case was about consumer privacy.
Plancich believes that the larger number of charity donations in consumer privacy class action settlements probably has to do with the enormous number of people impacted by these cases. For example, she said, Google Inc. settled with consumers in 2013 over privacy issues, but there were so many people in the class that it was deemed impractical to pay each and every one of them as each person would receive practically nothing. “It’s much more meaningful to have another kind of payment, like a change in behavior or a payment to charity,” explained Plancich.
Although these charity payments and other forms of nonmonetary compensation have proved popular in some cases, the study showed that the most common mode of compensation for consumers in a class action settlement is still cold, hard cash. Out of the cases with reported settlement fund value, 64 percent included a monetary component only.