5 Litigation Trends to Watch in 2025

Each year brings new developments that reshape class action litigation, creating both challenges and opportunities for plaintiff-side attorneys. This article reviews several of the most significant litigation trends emerging in 2025 across areas such as data privacy, ERISA, AI copyright disputes, ESG claims, and litigation finance.

1. Data Privacy and Cybersecurity 

The plaintiffs’ bar has seized on all sorts of privacy violations, making this one of the most prominent areas of growth for class litigation. The numbers tell the story: between 2022 and 2024, data breach-related class action filings in the US surged by over 146%. 

Top settlement amounts have increased, as well. The ten largest data breach class action deals in 2024 totaled about $593 million, up from $516 million the year before. These lawsuits have become a major risk for companies, sometimes rivaling the breaches themselves in financial impact. Courts are increasingly open to creative theories of harm and damages in privacy cases, even when misuse of data is hard to quantify. 

A patchwork of state privacy laws combined with growing public awareness of data rights has empowered plaintiffs to pursue a wide range of cases, including those involving biometric data, digital tracking, wiretapping, and pen register issues.

In Illinois, for example, the Biometric Information Privacy Act (BIPA) unleashed thousands of class action lawsuits over the past several years due to its stiff per-violation penalties. After the Illinois Supreme Court in early 2023 allowed damages for each instance of biometric data collection dramatically multiplying exposure, BIPA filings accelerated. In fact, plaintiffs filed 427 BIPA suits in 2024 alone, leading Illinois to amend BIPA in August 2024 to eliminate per-scan damages and limit plaintiffs to one recovery per person. 

Meanwhile, class actions over online tracking and communications have also skyrocketed. Plaintiffs are suing companies for using web analytics pixels”and session replay code, often invoking wiretap or pen register statutes or the federal Video Privacy Protection Act (VPPA). Over 250 VPPA class actions were filed in 2024 (up from 137 in 2023) against websites sharing viewing data with third parties. 

Although defendants have challenged these cases on standing and injury grounds, the plaintiffs’ bar is finding ways around those hurdles. For example, shifting claims to state courts or using state laws to avoid strict federal precedents. 

2. ERISA Violations and Employee Benefits Claims

2024 saw a significant increase in Employee Retirement Income Security Act (ERISA) class action filings. Plaintiffs brought 136 new cases, a 36% increase from the 100 cases filed in 2023. This trend comes after a period of recalibration in the wake of the US Supreme Court’s 2022 Northwestern University decision, which had initially made it easier for retirement plan fee cases to survive dismissal. Subsequent lower courts split on how strictly to scrutinize these complaints, particularly on whether plaintiffs must plead detailed comparators (so-called “meaningful benchmarks”) for fees and investments. By late 2023 and into 2024, plaintiff lawyers adjusted tactics and found new angles, leading to a fresh wave of filings and some significant settlements in the ERISA space.

401(k) excessive fee class actions continue. In 2024, at least 65 excessive fee lawsuits were filed against retirement plans, a jump from 48 such cases in 2023. These suits usually claim that plan fiduciaries breached their duties by offering high-cost investment options or charging unreasonable administrative fees. Although some courts have tightened pleading standards, the plaintiffs’ bar is pressing on, and a majority of these cases have survived to see class certification or settlement in recent years. 

Beyond fees, attorneys are pursuing new types of ERISA class claims. For example, as companies increasingly offload pension obligations to insurers, plaintiffs have targeted so-called pension risk transfer transactions. In 2024, at least a dozen lawsuits were filed against plan fiduciaries for allegedly choosing insurer annuity contracts that were not the “safest available,” putting retirees’ pensions at risk. 

Likewise, a new breed of class action is challenging how plans use forfeiture provisions, arguing that when employees depart a company and leave behind unvested account balances, those funds shouldn’t be used to pay plan expenses or offset employer contributions. There is also an increased focus on health plan litigation under ERISA. Plaintiff attorneys have begun suing employer health plan fiduciaries and their service providers for issues like excessive administrative fees, failure to capture prescription drug rebates, and even improper wellness program surcharges. 

3. Copyright Litigation Over AI Training Data

Copyright litigation over AI training data is intensifying as content creators challenge tech companies for using copyrighted material to train artificial intelligence models. In the past two years, authors, visual artists, and other copyright owners have filed numerous lawsuits against firms like OpenAI, Meta, and Stability AI for mining books, images, and music without permission to train generative AI systems. These cases test whether such unlicensed copying is fair use or copyright infringement, a question now at the forefront of AI-related litigation.

A case that affected the world of legal tech was Thomson Reuters v. Ross Intelligence. Thomson Reuters, the legal publisher behind Westlaw, sued AI startup Ross for copying Westlaw’s editorial case headnotes to train a competing legal research tool. On February 5, 2025, Judge Bibas granted partial summary judgment for Thomson Reuters, ruling that Westlaw’s headnotes are copyrightable because they involve creative synthesis of legal principles. 

The court rejected Ross Intelligence’s fair use defense, finding its use was commercial, non-transformative, and directly competed with Westlaw. Judge Bibas emphasized that training an AI model with copyrighted material is not automatically fair use, establishing that AI training data remains subject to traditional copyright standards even if the AI outputs do not directly reproduce the original content. Judge Bibas’s decision was the first US ruling on fair use in the AI training context. Many pending cases will be guided by this precedent. 

4. ESG Greenwashing Class Actions

Plaintiff attorneys are bringing more lawsuits against companies accused of greenwashing: making false or exaggerated claims about a product’s environmental benefits. These cases focus on situations where businesses market goods as sustainable or eco-friendly, but the underlying environmental impact doesn’t match the advertising. 

In one recent case, consumers filed a class action against Apple over its marketing of certain Apple Watch models as “carbon neutral.” The lawsuit alleges that Apple relied on carbon offset projects that failed to achieve real emission reductions. The complaint states that Apple’s offsets involved preserving forests that were already protected or fully grown, providing no meaningful new environmental benefit. Plaintiffs claim they paid a premium for the watches based on Apple’s sustainability claims and are seeking an injunction to stop Apple from using the “carbon neutral” label.

The Apple Watch case is part of a broader wave of ESG-related false advertising litigation. Major brands across industries have been hit with similar class actions for allegedly overstating their environmental practices or product benefits. For example, Nike was sued in 2023 for marketing a “Sustainability Collection” of apparel that was supposedly made with high recycled content. The lawsuit claimed that out of over 2,400 products advertised as sustainable, only around 239 actually contained recycled material. Delta Air Lines also faced a class action challenging its boast of being the “world’s first carbon-neutral airline,” alleging that its heavy reliance on carbon offsets made the neutrality claim “provably false.” 

These cases show that courts and juries are scrutinizing corporate ESG claims with a critical eye. Plaintiff-side litigators are focusing on concrete misrepresentations (the specific facts behind a “green” label or advertisement)  rather than generic promises. By bringing claims under consumer protection and false advertising laws, they aim to hold companies accountable when eco-friendly branding outpaces reality.

5. Litigation Funding and Heightened Scrutiny of Legal Finance

Litigation funding has grown from a prohibited practice into a $15 billion industry, and is expected to grow to over $25 billion by 2030. Additionally, the 2024 Westfleet Insider Litigation report found that the average litigation finance deal size grew to $8 million in 2024, up from $7.8 million in 2023. Huge pools of capital are being deployed into a wide variety of lawsuits, empowering plaintiff firms (and some defendants) to pursue expensive, complex cases that might otherwise be cost-prohibitive.

However, this growth has also led to more federal regulatory attention. In October 2024, Congress introduced the Litigation Transparency Act, which would mandate disclosure of any third-party funding in federal civil lawsuits. The Judicial Conference’s Advisory Committee on Civil Rules also formed a subcommittee to consider new federal rules on disclosing litigation finance agreements. At the state level, several legislatures have already acted: states including Montana, Indiana, Louisiana, and West Virginia passed laws requiring greater transparency in litigation funding deals, but stopped short of giving opponents a direct say in funding arrangements

From the perspective of plaintiff-side attorneys, these developments present multiple ____. On one hand, the continuing maturation of the litigation finance industry means more opportunities to secure backing for meritorious cases. On the other hand, new disclosure rules could give defendants ammunition to argue a case is lawyer-driven or to seek discovery of funder communications. 

Moving forward, we can expect litigation funding to continue flourishing but under an environment of greater scrutiny and accountability. 

How Darrow Helps Plaintiff Firms Identify and Build Emerging Cases

Many of the litigation trends shaping class actions today share a common challenge: legal violations exist, but the underlying evidence is scattered across fragmented and unstructured data. User reviews, regulatory filings, public databases, company disclosures, and other publicly-available sources often contain early signals of legal harm, but piecing them together requires tools that can process both scale and complexity.

Darrow uses legal intelligence to address this gap. Using proprietary data mining technology, anomaly detection algorithms, AI, web intelligence, and large lan to detect patterns of harm, connect fragmented signals, and surface actionable legal violations across multiple practice areas, including:

• Data Privacy and Cybersecurity
  
  
• ERISA and Employee Benefits
  
  
• AI Copyright and IP Litigation
  
  
• ESG Greenwashing and Consumer Protection
  
  
• Securities, Financial Fraud, and more
  
  

Once a potential violation is identified, Darrow’s legal team reviews and consolidates the evidence, preparing a comprehensive case memo that includes factual claims, jurisdictional analysis, damages estimates, class size, and supporting documentation. Plaintiff firms receive fully developed legal intelligence packages that allow them to assess, file, and prosecute claims with stronger evidentiary foundations from the outset.

In areas where legal theories are still evolving, Darrow enables firms to pursue complex litigation with the benefit of data-backed case discovery and professional legal support. As new forms of legal exposure continue to emerge, Darrow helps ensure that actionable harm does not go undetected or unaddressed.

Contact us to learn how Darrow can help you scale your practice

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