Trends in Class Action Litigation: New or More of the Same?

This week, we’re taking a second look at some recurring (and emerging) trends in class action litigation. Some of these you’ve likely heard of — and surprise, surprise, they don’t seem to be going away anytime soon. Others might be completely new. Whether it’s a familiar issue resurfacing or a brand-new theory gaining traction, it’s important to know what’s lurking out there on the litigation front. So, let’s dive in. 

Reg E Is Back (But Did It Ever Really Leave?) 

Yes, Reg E continues to be the gift that keeps on giving in the litigation space. Up until recently, plaintiffs’ attorneys in these cases were primarily relying on the “authorized-positive, settle-negative” theory — a tale as old as time. 

Lately, however, there’s been a shift toward a theory resembling strict liability. Plaintiffs are now arguing that if a Reg E opt-in form fails to clearly disclose the balance calculation method used to assess overdraft fees — and a transaction then triggers such a fee — there was never valid opt-in in the first place. Therefore, all resulting overdraft fees are improper. 

The kicker? The CFPB’s Model Form A-9 doesn’t provide the level of detail these attorneys claim is necessary for meaningful opt-in. In fact, the disclosures they’re looking for are typically included in account agreements under the Truth in Savings Act — not in the Reg E opt-in form. 

Regardless, that hasn’t stopped the lawsuits. Moral of the story: regularly reviewing your forms, documents, agreements, and disclosures (with legal counsel) is a smart move — and might just save you in the long run. 

Authorize Positive, Settled Negative…Here We Go Again.  

The APSN theory continues to haunt financial institutions. It goes like this: if a member had enough funds to authorize a transaction, they shouldn’t be charged an overdraft fee when the transaction settles. 

This theory keeps popping up in litigation — and with some success for plaintiffs, who argue they’re being hit with “surprise” fees. Don’t expect this one to disappear anytime soon. 

New: Meta Pixel Litigation. 

You might be asking, What the heck is Meta Pixel litigation? Don’t worry—I was in your shoes not too long ago. 

Meta Pixels are tiny pieces of code that track user activity on websites: what pages people visit, what they click on, what they search. They’re incredibly useful for analyzing how visitors interact with your site. 

Most of us are familiar with “cookies” — when a user visits your site, a cookie is stored in their browser and transfers (supposedly anonymous) data to Meta (or Google). But here’s the issue: it’s only anonymous if the user isn’t logged into Facebook. If they are, Meta can match that data with their account and track their behavior more precisely. 

One recent case to be aware of: Shah v. Capital One Fin. Corp., 2025 WL 714252. In this case, the court found that Capital One disclosed personal financial information to third and even fourth parties via Meta Pixels. This is just one of many similar cases making their way through the courts. 

Bottom line: be aware of where Meta Pixels are used on your site, and ensure you understand what information is being collected and shared. 

To sum it up… 

New theories in class action litigation continue to emerge, while old ones resurface again and again. Staying informed and proactive is key. Regularly reviewing your disclosures and agreements (with your attorney) is a sound best practice. 

As always, this article is intended for general information only and does not constitute legal advice. If you have any questions about this topic and/or possible implications, you should contact your attorney for advice. 

Hope to see you next time when we take a second to discuss another legal topic in the financial services industry! 

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