Over the past year, a barrage of class action lawsuits asserting violations of the Video Privacy Protection Act (“VPPA”)—a vintage Reagan-era federal consumer privacy law—has shed light on potential liability facing companies that embed video content onto company websites and simultaneously collect and share consumer viewing data in the course of marketing analytics.

The VPPA is, until recently, a rarely invoked federal statute that was enacted to protect the privacy of information about people’s video tape rentals after the press leaked a list of a Supreme Court nominee’s movie watching habits in 1987. However, the VPPA is now providing the foundation for a new class of consumer privacy lawsuits based upon the way companies may be tracking and sharing data collected when consumers view video content posted on company websites, apps, and/or shared via email marketing.

A. What is the VPPA?

The VPPA prohibits a person or business that rents, sells, or delivers prerecorded “video cassette tapes or similar audio visual materials” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider. . . .,” absent informed, written consent as defined by the VPPA. 18 U.S.C. § 2710(a)-(b). Under the Act, “personally identifiable information” or “PII” is “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3).

If liability is found, the VPPA allows consumers to seek the trifecta of remedies—(1) statutory damages in the amount $2,500 per violation, (2) punitive damages, and (3) recovery of attorneys’ fees. 18 U.S.C. § 2710(c).

B. VPPA Claims in 2023

A slew of nationwide lawsuits are asserting violations of the VPPA. These lawsuits have nothing to do with video rental stores, instead alleging that businesses are illegally sharing consumers’ viewing history and PII with Facebook and other social media companies through a tracking pixel placed on company websites that can collect, among other things, a consumer’s navigation to a page containing an embedded video or audio visual file.

These universally utilized “tracking pixels” are pieces of code for Google Analytics and/or Meta Platforms Inc. that are incorporated into a company website that collect information about how users interact with the site, such as whether users initiate purchases, what content users view, and other details, and then shares information about the individual including the title and URL of the video.

C. Current Litigation

It has been reported that over 70 lawsuits asserting claims under the VPPA have been filed in the past year, and due to the willingness of some courts to entertain these claims at least past a motion to dismiss stage, it is very likely that more lawsuits will continue to be filed.

Companies faced with VPPA claims have argued that the information collected by the tracking pixels does not rise to the level of PII. There is a split of authority dictating what qualifies as PII. For example, the United States District Court for the District of Massachusetts in the First Circuit has adopted a broad approach, holding that the transmission of viewing records along with GPS coordinates and a device’s unique identification number constituted PII despite requiring additional information in order to link the plaintiff to their video history. In contrast, other courts including the United States District Court for the Southern District of New York in the Second Circuit have adopted a narrower view, requiring that for information to qualify as PII the disclosure itself, without any additional information, must identify a particular person.

Other arguments advanced in motions to dismiss VPPA claims include the following:

  1. The plaintiff is not a consumer under the VPPA. The VPPA defines “consumer” to mean any renter, purchaser, or subscriber of goods or services from a video tape service provider;
  2. The plaintiff cannot show that defendant is a “video tape service provider” under the VPPA;
  3. The plaintiff failed to plausibly allege that the defendant “disclosed” personally identifiable information because it is the consumer’s web browser, as opposed to the company website, that transmits the purportedly identifying consumer data;
  4. The plaintiff failed to plausibly allege that the defendant “knowingly” disclosed PII since the defendants have no access to or knowledge of the existence of the cookie on the web browser that may transmit the additional information; and
  5. The VPPA is unconstitutional because it restricts commercial speech in violation of the First Amendment.

Faced with these arguments, at least three courts—the United States District Court for the Districts of Massachusetts, Southern District of New York, and Northern District of Georgia— have denied motions to dismiss, finding that the plaintiffs plausibly asserted a claim under the VPPA, and allowing the VPPA claim to proceed to discovery.

Some defendants, however, have found success. As noted above, the Southern District of New York takes a narrow view on what qualifies as PII, and as a result dismissed a VPPA claim on the basis that the plaintiff failed to plausibly allege that the information the defendant company disclosed to third parties was PII. Federal district courts for Rhode Island and the Northern District of California have also dismissed VPPA claims where the viewed content at issue was live-streamed content, as opposed to prerecorded, on the basis that this fell outside the definition of “video tape service provider” in § 2710(a)(4).

The orders issued from these cases thus far demonstrate that there is no imminent consensus among federal courts. Until there is a clear consensus among federal courts on the viability of VPPA claims, we can expect to see a continued stream of VPPA litigation.

The slew of lawsuits alleging VPPA claims seek to impose enormous liability on what has become routine and universal data analytics. As a result, companies that utilize video content in brand marketing and advertising analytics could potentially be opening themselves up to a new class of consumer privacy litigation seeking $2,500 in statutory fees per violation, as well as potential punitive damages and attorneys’ fees.

Time of the event:
3:00 p.m. to 3:30 p.m. Eastern
2:00 p.m. to 2:30 p.m. Central
1:00 p.m. to 1:30 p.m. Mountain
12:00 p.m. to 12:30 p.m. Pacific

About the Program

On Tuesday, February 7th, Seyfarth attorneys Ada Dolph and Danielle Kays will present a webinar entitled The Here and Now of BIPA: Updates and Developments in Biometric Privacy.

As we move into 2023, Biometric Information Privacy remains a constantly evolving field, with states enacting new statutes, technology evolving, plaintiffs raising new theories, and cases being filed daily. Keeping up with biometric laws can be a daunting task for these reasons. Join our experts as we take a look at some of the recent developments in this ever-changing area of law, and break down how companies can adapt.

Topics include:

  • Questions that have finally been answered, and which areas remain unresolved
  • How to remain in compliance and avoid violations
  • What’s next for information privacy and protection

To register, click here.


If you have any questions, please contact Kate Stacey at kstacey@seyfarth.com and reference this event.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC and VA. The following jurisdictions may accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, NH. The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. Please note that attendance must be submitted within 10 business days of the program taking place. If you have questions about jurisdictions, please email CLE@seyfarth.com. CLE credit for this recording expires on February 6, 2024.

Following its recent “initiative” and request for information to reduce “exploitative junk fees,” the Consumer Financial Protection Bureau (“CFPB”) has on June 29, 2022 released an advisory opinion. The opinion concludes that “pay-to-pay fees,” which the debt collection industry refers to as “convenience fees” violate the Fair Debt Collection Practices Act (“FDCPA”) “unless the fee amount is in the consumer’s contract or affirmatively permitted by law.”

Section 808(1) of the FDCPA, 15 U.S.C. § 1692f(1), states: “A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” Despite acknowledging that some courts have ruled otherwise, the advisory opinion concludes that “[t]he collection of any fee is prohibited unless the fee amount is in the consumer’s contract or affirmatively permitted by law.” CFPB Press release; see advisory opinion at 5. The opinion also construes the term “permitted by law” narrowly so that “[w]here no law expressly authorizes a fee, it is not ‘permitted by law,’ even if no law expressly prohibits it.” Id. “The CFPB therefore interprets FDCPA section 808(1) to prohibit a debt collector from collecting any amount unless such amount either is expressly authorized by the agreement creating the debt (and is not prohibited by law) or is expressly permitted by law. That is, the CFPB interprets FDCPA section 808(1) to permit collection of an amount only if: (1) the agreement creating the debt expressly permits the charge and some law does not prohibit it; or (2) some law expressly permits the charge, even if the agreement creating the debt is silent.” Advisory opinion at 6. The opinion also clarifies that “[d]ebt collectors violate the FDCPA when using payment processors who charge unauthorized fees at a minimum if the debt collector receives a kickback from the payment processor.” CFPB Press release.

The CFPB’s jurisdiction and advisory opinion is limited to construing federal law, in this instance the FDCPA, which governs consumer debt collection by (mostly) third-party debt collectors. But it’s advisory opinion has state law implications as well. The Pennsylvania state law version of the FDCPA, for example, not only declares that “[i]t shall constitute an unfair or deceptive collection act or practice under this act if a debt collector violates any of the provisions of the [FDCPA],” it further prohibits first-party creditors from “us[ing] unconscionable means to collect or attempt to collect any debt” by “collect[ing] … any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” PA ST § 2270.4(a) & (b)(6)(i). The Rhode Island version also prohibits “[a] debt collector,” defined to (mostly) include third-party collectors, from “[c]ollecting any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law[.]” RI ST § 19-14.9-8(a). Collectors of consumer debt should check the laws of their applicable jurisdictions.

On June 15, 2022, in Viking River Cruises v. Moriana, the United States Supreme Court ruled that individual claims under the California Private Attorneys General Act (“PAGA”) can be compelled to arbitration under the Federal Arbitration Act, partially preempting the California Supreme Court’s longstanding and contrary Iskanian decision.

To read the full Legal Update, click here.

As we previously reported, employers generally have found success when the United States Supreme Court takes up questions about the arbitrability of workplace disputes. The unanimous decision in Southwest Airlines Co. v. Saxon bucks that trend, holding that those who load cargo onto airplanes engaged in interstate travel are exempt from the Federal Arbitration Act (FAA). The Court’s fact-specific decision, however, rejects any bright-line test. As such, it leaves room for employers looking to enforce their arbitration agreements under federal law and opens the door to future litigation regarding whether workers are actually “engaged in interstate commerce” when they do not cross borders to perform their work.

To read the full Legal Update, click here.

Medical service providers who engage in medical billing, debt collection, and credit reporting are the focus of new regulations and regulatory enforcement efforts. Civil litigation is sure to follow. Under the direction of its new Director, Rohit Chopra, the Consumer Financial Protection Bureau “is working to stop unfair medical debt collection and coercive credit reporting practices that add to the strain on American families.” The Bureau has targeted that “$88 billion of outstanding medical bills are currently in collections – affecting one in five Americans.” Id. A federal consumer protection law, the “No Surprises Act,” came into force this year. It provides billing and collection rights to medical patients, both insured and uninsured. The Bureau has issued a Bulletin, warning that the attempted collection of a medical debt that is barred by the No Surprises Act may violate federal consumer debt collection practice law. A plethora and ever growing number of state laws also heavily regulate medical billing, collection, and credit reporting practices.

To read the full Legal Update, click here.

A federal judge has dismissed a class action lawsuit that challenged the Washington Long-Term Cares Act (“Cares Act”), ruling that because the Cares Act is not established or maintained by an employer and/or employee organization, it is not an employee benefit plan and therefore not governed or preempted by ERISA. The Court also held that the premiums assessed by the Cares Act constitute a state tax. As such, only state courts, not U.S. federal courts, have jurisdiction to rule on the Cares Act.

Click here to read our Legal Update on the dismissal of the law suit.

In the second annual installment of Seyfarth Shaw’s Commercial Litigation Outlook, our nationally-recognized team provides keen insights about what to expect in 2022. It will be a busy year that will call upon clients and their counsel to be flexible, creative, and proactive on many fronts.

As you will read in the full Outlook linked below, reliance on all things online, and remote workforces, has amplified the risks around cyberattacks and privacy and insurance premiums are increasing across the board for all lines of insurance, particularly as insurers adjust their risk to the increase in expensive ransomware attacks. Other key trends in the commercial litigation space addressed in this issue are: Antitrust, Bankruptcy, Consumer Class Action Defense, Consumer Financial Services Litigation, eDiscovery Litigation, Fair Credit Reporting Act, Franchise and Distribution, Health Care Litigation, International Dispute Resolution, Real Estate Litigation, Securities Litigation, and a Trial Outlook.

Looking Ahead: Webinar Series – In the coming weeks, our team of authors will present a two part webinar series covering the topics mentioned above, including any recent developments. Please be on the lookout for further information!

Seyfarth Synopsis:  The Illinois Supreme Court issued its long-awaited decision in McDonald v. Symphony Bronzeville Park, LLC, et al., 2022 IL 126511 (Feb. 3, 2022), holding that claims for statutory damages against an employer under the Illinois Biometric Information Privacy Act (“BIPA”) are not preempted by the exclusivity provisions of the Illinois Workers’ Compensation Act (the “IWCA”).  This ruling is a major development in the BIPA class action landscape, as it resolves a frequently-contested issue and effectively precludes employers from asserting IWCA preemption as a defense to BIPA claims. 

Case Background

The plaintiff in McDonald claimed her former employer, Symphony Bronzeville Park, LLC, violated the BIPA by requiring her and other employees to use a time-clock system that scans their fingerprints without properly providing notice, providing a publicly-available retention policy, or obtaining written consents required by the statute.  Defendant moved to dismiss on the basis that plaintiff’s claims were barred by the exclusivity provisions of the IWCA, under which the sole remedies for employees who have suffered work-related injuries are the remedies set forth in the IWCA.

The trial court denied defendant’s motion to dismiss but certified for appeal the question whether the IWCA’s exclusivity provisions bar a claim for statutory damages under BIPA.  The Illinois Appellate Court affirmed on the grounds that a BIPA claim for statutory damages is not an injury compensable under the IWCA.  See McDonald v. Symphony Bronzeville Park LLC, 2020 IL App (1st) 192398, ¶ 27.

The Illinois Supreme Court’s Decision

On appeal to the Illinois Supreme Court, defendant argued that the IWCA precluded plaintiff’s action because plaintiff’s alleged injury occurred in the course of her employment — meaning her available remedies were limited to those set forth in the IWCA.  In opposition, plaintiff argued that the IWCA’s exclusivity provisions applied only to physical or psychological injuries that are compensable under the IWCA and that a privacy injury under the BIPA constitutes a different type of injury.

The Supreme Court agreed with plaintiff. It held unanimously that her BIPA claims could proceed because her alleged privacy injury “is not categorically within the purview of the [IWCA].”  McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, ¶ 44.

The Supreme Court analyzed the BIPA’s purpose, as articulated in the 2019 decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186.  The Supreme Court reiterated that through the BIPA, the Illinois General Assembly “codified that individuals possess a right to privacy in and control over their biometric identifiers and biometric information,” and that “when a private entity fails to comply with one of section 15’s requirements, that violation constitutes an invasion, impairment, or denial of the statutory rights of any person or customer whose biometric identifier or biometric information is subject to the breach.”  McDonald, 2022 IL 126511, ¶ 24 (quoting Rosenbach, 2019 IL 123186, ¶ 33).

The Supreme Court explained that the IWCA generally provides the exclusive remedy for work-related injuries, unless a plaintiff can establish one of the four recognized exceptions to the IWCA’s exclusivity provisions, including: (1) if the injury was not accidental; (2) if the injury did not arise from employment; (3) if the injury did not occur during the course of employment; or (4) if the injury is not compensable under the IWCA.  McDonald presented a question regarding the fourth exception, i.e., whether the injury resulting from a BIPA violation is compensable under the IWCA.

In answering in the negative, the Supreme Court relied primarily on its decision in Folta v. Ferro Engineering, where a plaintiff diagnosed with mesothelioma sued his former employer after allegedly being exposed to asbestos on the job.  2015 IL 118070, ¶ 3.  The trial court granted plaintiff’s employer’s motion to dismiss based on the exclusivity provisions of the Workers’ Occupational Diseases Act (the “WODA”), which were interpreted in accordance with the IWCA’s exclusivity provisions.  The plaintiff argued the exclusivity provisions did not apply pursuant to the “compensability” exception because he could not recover under the WODA in that he filed his claim beyond the 25-year repose period.  The Illinois Appellate Court reversed. It opined that the plaintiff’s inability to recover damages under the WODA placed his case within the exception for “non-compensable injuries.”

The Supreme Court reversed the appellate ruling, concluding that the exclusivity provisions barred the plaintiff’s cause of action even though compensation was unavailable due to the statutory time limits.  Folta framed the question of whether an injury is compensable as “not whether an injury was literally compensable, i.e., whether the employee could literally receive compensation for injuries under the acts,” but “whether the type of injury categorically fits within the purview of the” workers’ compensation acts.”  McDonald, 2022 IL 126511, ¶ 24 (quoting Folta, 2015 IL 118070, ¶ 23).  Because the WODA addressed diseases caused by asbestos exposure, Folta held that the plaintiff’s injury was “the type of injury contemplated to be within the scope of” the WODA.  Id. ¶ 39 (quoting Folta, 2015 IL 118070, ¶ 25).

Using Folta’s framework, the Supreme Court in McDonald held that injuries caused by BIPA violations “are different in nature and scope from the physical and psychological work injuries that are compensable under the [IWCA].”  Id. ¶ 43.  The Supreme Court contrasted “injuries that affect an employee’s capacity to perform employment-related duties, which is the type of injury for which the workers’ compensation scheme was created,” with the privacy injuries “caused by violating [BIPA’s] prophylactic requirements.”  Id.

The Supreme Court further noted that the BIPA’s text supported its conclusion because the BIPA “defines the precollection ‘written release’ required by” Section 15(b) of the BIPA “to include ‘a release executed by an employee as a condition of employment.’”  Id. ¶ 45 (quoting 740 ILCS 14/10).  The Supreme Court reasoned that the legislature knew BIPA claims could arise in the employment context, “yet it treated them identically to nonemployee claims except as to permissible methods of obtaining consent.  Therefore, the text of [the BIPA] itself . . . is further evidence that the legislature did not intend for [BIPA] claims to be presented to the Workers’ Compensation Commission.”  Id. ¶ 45.

Implications For Employers

McDonald has major implications for employers facing BIPA claims.  The decision effectively makes the IWCA preemption defense unavailable in BIPA cases.  Moreover, many BIPA cases pending in state and federal courts have been stayed pending the Illinois Supreme Court’s McDonald decision, and those stays may soon be lifted in light of the opinion being released.

Significant questions remain, however, regarding BIPA’s application to companies that collect biometric information.  Some questions will be decided in other appeals pending before the Illinois Supreme Court, which may lead courts to maintain previously-entered stays despite the issuance of McDonald.  For example, the U.S. Court of Appeals for the Seventh Circuit recently issued a decision in Cothron v. White Castle Systems, 20 F.4th 1156 (7th Cir. 2021), certifying to the Illinois Supreme Court the question whether claims asserted under Sections 15(b) and 15(d) of the BIPA accrue only once upon the initial collection or disclosure of biometric information, or each time a private entity collects or discloses biometric information.  (See here).  Similarly, the limitations period applicable to BIPA claims remains unresolved.  As previously noted (here), the Illinois Appellate Court in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), held that a one-year limitations period governs actions brought under BIPA Sections 15(c) and (d), while claims under BIPA Sections 15(a), (b), and (e) are subject to the catch-all five-year limitations period.  The Illinois Supreme Court allowed the Tims defendant’s petition for leave to appeal on January 26, 2022 — meaning it is poised to issue two more critical BIPA rulings in the coming months.

On November 9, 2021, the Oklahoma Supreme Court in State ex rel. Hunter v. Johnson & Johnson, No. 118474, 2021 WL 5191372 (Okla., Nov. 9, 2021), overturned a $465 million verdict against opioid manufacturer, Johnson & Johnson (“J&J”). In the 5-1 decision, the court held that the district court erred in holding J&J liable under the state’s public nuisance law because the statute does not extend to the manufacturing, marketing, and selling of products. The court warned that extending public nuisance law to the manufacturing, marketing, and selling of products would allow consumers to convert product liability actions into public nuisance claims.  Id. at *11. Such an expansion of public nuisance law could catalyze widespread litigation against large companies for any public health problem.

Factual and Procedural Background

Like many cities across the United States, Oklahoma has seen the effects of the over-prescription of opioids to its residents. Id. at *1. In an effort to hold large opioid manufacturers accountable, the State sued three opioid manufactures in June 2017, including J&J. Id. The State argued that J&J marketed the benefits of opioid use while downplaying the dangers in an effort to increase sales. Id. at *2. The State settled with the other manufacturers and later dismissed all claims against J&J with the exception of the public nuisance claim. Id.

The district court held a month-long bench trial on the public nuisance issue. Id. The Oklahoma public nuisance statute states, “[a] public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.” 50 Okl. St. § 2. Thus, the question before the court was whether J&J was liable for creating a public nuisance in the marketing and selling of opioids within the state. State ex rel. Hunter, No. 118474, 2021 WL 5191372 at *1.

The court returned a verdict against J&J, finding them liable for conducting “false, misleading, and dangerous marketing campaigns” about opioids. Id. at *2. In doing so, the court ordered J&J to pay $465 million to fund one year of government programs aimed at combating the opioid crisis. Id. In issuing this hefty damage award, the court did not base the amount on J&J’s specific market interest of prescription opioids sold. Id. The court also did not offset the amount with the amount the State received from the settlement agreements with the other opioid manufacturers. Id.

J&J appealed the verdict and the State cross-appealed, arguing that J&J should be held liable for a higher amount to fund twenty years of the state’s government programs aimed against opioid use. The Supreme Court of Oklahoma retained the appeal. Id. at *3. The issue on appeal was whether the district court correctly determined that J&J’s actions in marketing and selling opioids created a public nuisance. Id.

Supreme Court of Oklahoma’s Decision

Origins and History of Oklahoma Public Nuisance Law

The Oklahoma Supreme Court began its opinion by giving a history of the public nuisance doctrine going back to the twelfth century. Id. The court explained how the public nuisance theory began as a criminal remedy used to protect the rights of public property. Id. Many years later during the twentieth century, public nuisance evolved into a common law tort and was later codified by the Oklahoma Legislature. Id. at *4. In applying the state’s nuisance statutes, the court has limited public nuisance liability to defendants “(1) committing crimes constituting a nuisance, or (2) causing physical injury to property or participating in an offensive activity that rendered the property uninhabitable.”  Id. Nuisance cases can also be brought in cases in which conduct “annoys, injures, or endangers the comfort, repose, health, or safety of others.” Id. at *5. Yet, the court reminded the State that such conduct has traditionally been criminal or property-based. Id. As such, the court reasoned that applying nuisance law to the manufacturing, marketing, and selling of lawful products would be an overbroad application of the law. Id.

Oklahoma’s Public Nuisance Law Does Not Cover the State’s Alleged Harm

The court refused to extend the public nuisance doctrine to the State’s claim that J&J’s failure to warn of the dangers of opioids constitutes a public nuisance. In reaching this decision, the court identified three reasons for which the doctrine is inapplicable to product liability: (1) the manufacture and distribution of products rarely cause a violation of a public right, (2) a manufacturer does not generally have control of its product once it is sold, and (3) a manufacturer could be held perpetually liable for its products under a nuisance theory. Id. at *6.

In analyzing the first factor, the court concluded that the State failed to show a violation of a public right. The court defined a public right as a right to a public good (i.e. natural resources, public spaces). Id. The court rejected the State’s argument that J&J’s conduct amounted to an interference with the public right of health because prescription opioids do have beneficial uses for pain management and the rise in misuse and addiction could not have been anticipated. Id. at *7 The court distinguished J&J’s conduct from cases of pollution in public water or the discharge of sewer on property, in which injury could have been anticipated. Id. Further, the court reasoned that the State’s argument would promote the notion that an unreasonable interference with a public right could be shown solely by the unanticipated misuse of products by some consumers. Id. “A public right to be free from the threat that others may misuse or abuse prescription opioids—a lawful product—would hold manufacturers, distributors, and prescribers potentially liable for all types of use and misuse of prescription medications.” Id. Thus, the court concluded that the State failed to show a violation of a public right in this case.

As to the second factor, the court reasoned that J&J did not have control over the manner in which opioids were used once they were sold. Id. at *8. “A product manufacturer’s responsibility is to put a lawful, non-defective product into the market. There is no common law tort duty to monitor how a consumer uses or misuses a product after it is sold.” Id. The court reasoned that J&J had no control over its products once they were sold through the multiple levels of distribution which included distributors, wholesalers, pharmacies, hospitals and doctors’ offices. Id. Without control, J&J could also not abate or fix the nuisance. Here, the court attacked the remedy of monetary sanctions imposed by the district court. Id. at *9. Though, the amount awarded to the State was intended to go to the State’s abatement plan to combat opioid addiction, the court did not find this to be a suitable remedy. The court reasoned that the abatement program would not stop the promoting or selling of opioids. Id. Therefore, the court rejected the monetary damage award as it did not address the alleged nuisance. Id.

In addressing the third and final factor, the court plainly rejected the imposition of liability for public nuisance in this case, because J&J could be held continuously liable for its products. Id. J&J’s products entered the stream of commerce more than twenty years ago. Id. The court reasoned that imposing liability under a public nuisance cause of action here would subject manufacturers to endless liability and would sidestep the statute of limitations in traditional tort law. Id.

This Court Will Not Extend Oklahoma Public Nuisance Law to the Manufacturing, Marketing, And Selling of Prescription Opioids

In sum, the court, held that it will not extend the state’s public nuisance law to J&J’s conduct in the manufacturing, marketing and selling of prescription opioids. The court dug its heels into the common law criminal and property-based limitations that have shaped the state’s public nuisance doctrine. Without these limitations, the court warned that businesses could be held boundlessly liable for the manufacturing, marketing or selling of products, i.e. “will a sugar manufacturer or the fast food industry be liable for obesity, will an alcohol manufacturer be liable for psychological harms, or will a car manufacturer be liable for health hazards from lung disease to dementia or for air pollution.” Id. at *11. Though the court does tip its hat to the State’s novel theory of extending public nuisance liability for the marketing and selling of a legal product, the court remained unconvinced. Instead, the court advised that this is an issue that could be more appropriately addressed by the legislature, rather than the courts.

Takeaways

There is a growing trend in which courts are reluctant to apply public nuisance law to opioid-manufacturer cases. This case comes on the heels of a recent tentative decision from a California superior court in which the court also rejected the plaintiffs’ argument that defendants, J&J, Endo Pharmaceuticals, Teva Pharmaceuticals, and Allerfan PLC, created a public nuisance by manufacturing and selling opioids. People v. Purdue Pharma, No. 30-2014-00725287-CU-BT-CXC (Cal. Super. Nov. 9, 2021). Prior to these decisions, North and South Dakota courts have also rejected public nuisance claims against the same defendants for the same alleged conduct. See State ex rel. Stenehjem v. Purdue Pharma, L.P., No. 08-2018-cv-01300, 2019 WL 2245743, at *13 (N.D. Dist. Ct. May 10, 2019) (rejecting the public nuisance claim because public nuisance law does not apply to cases involving a sale of goods); see also State ex rel. Ravnsborg v. Purdue Pharma L.P., No. 32CIV18-000065 (S.D. Cir. Ct. Jan. 13, 2021) (rejecting the public nuisance claim as applied to the sale of good and holding that defendants did not have control of the instrumentality of the nuisance when the damage occurred).

These decisions mark a shift in the landscape of opioid litigation, casting doubt on the use of the public nuisance doctrine as applied to the manufacturers of these drugs. Another important aspect of this ruling is the questionable ability of plaintiffs to receive monetary damage awards to redress harm in these cases. The Oklahoma Supreme Court expressed skepticism in this approach and encouraged redress to be handled by public policy rather than the courts. If plaintiffs continue to allege that that the manufacturing and selling of opioids constitutes a public nuisance, it may become increasingly difficult to prove that the appropriate redress is something other than an injunction on such manufacturing and selling.

As it stands, it is not clear whether these cases are outliers or a projection of a growing national trend. Given differences in states’ public nuisance doctrines, cases certainly could come out on the other side. As more cases are set to go to trial in the coming months, it will be instructive on how courts view this doctrine and its applicability to opioid-related cases.