Litigants turn to class actions to hold Trump administration to account

Linda Thompson

A major ruling by the US Supreme Court has sharply curtailed the ability of judges to impede presidential policies nationwide, while providing an avenue around that prohibition via class actions.

The case – Trump v Casa – challenged the President’s executive order restricting birthright citizenship. The Supreme Court held in June that federal courts lack the authority to issue nationwide injunctions – which control how the government acts toward everyone in the country – because they exceed the powers granted to courts by Congress. The Court didn’t address the constitutionality of the actual order, however.

Donald Trump’s second presidency has seen a record number of nationwide injunctions being issued against his administration. Greg Siskind, Co-Chair of the IBA Immigration and Nationality Law Committee, believes that the Supreme Court was attempting to make it a little more difficult for judges to close down policies on a national basis, rather than take that power away from them entirely. ‘It was becoming too easy for every policy that a president was rolling out to be shut down,’ he explains.

Within hours of the Supreme Court ruling, a case with the same parameters as Trump v Casa was filed – this time, however, the attorneys moved for a preliminary injunction on behalf of a proposed nationwide class of infant children subject to the executive order, as well as their parents. Two weeks later, a New Hampshire federal court certified the proposed class in the case – Barbara v Trump – a process that, even on an expedited schedule, tends to take six to seven months.

Several other lawsuits challenging President Trump’s executive orders have been pursued under a class action basis. In July, for instance, a Seattle court ruled that a legal challenge to the Trump administration’s suspension of refugee resettlement could move forward as a class action lawsuit on behalf of all impacted refugees.

The primary impact of Trump v Casa is that litigation against the President’s executive orders will take longer and require more resources because it’s simply more difficult to put together a class action than an individual case, says William Stein, Chair of the Appellate Practice Group at Hughes Hubbard & Reed in Washington, DC.

Pending and future class actions will have to meet the requirements of Rule 23 of the Federal Rules of Civil Procedure to have a class certified and obtain injunctive relief. ‘It’s not simply a matter of drafting a complaint. You have to put together some evidence supporting the contention that you meet all the requirements of Rule 23, so that the court has a basis to certify a class,’ explains Stein. These requirements include, for example, assembling proper class representatives.

Federal courts may opt in certain cases to grant so-called provisional certification to a class. According to Siskind, who’s a founding partner at Siskind Susser in Tennessee, a court would probably make a determination on such provisional class certification quickly if they viewed the case as an emergency. For the administration, it’s a win, he says, because its policies are going to be rolled out – if only briefly – given that Trump v Casa has made it more difficult to obtain temporary restraining orders.

However, while Trump v Casa has ‘basically made it more difficult to get the national relief on the front end in the same timeframe that we were seeing before […] that doesn’t necessarily really change the outcome,’ says Siskind. He highlights the high success rate of lawsuits challenging executive orders.

Patricia Brum, an LA-based partner at Snell & Wilmer, questions how using class action to obtain constitutional relief will ‘play out’, asking ‘how are you going to give notice to all the potential class members? How are you even going to identify them?’ For example, referring to the Trump v Casa case, she queries how the people born after the executive order went into effect whose mother or father are not lawful residents or citizens of the US would be identified. ‘That information is not centralised and it’s not within one person,’ she says. ‘It may be information that you don’t typically disclose, or you’re not required to disclose.’

Brum says the lawsuits would have to fully play out before these certification questions are definitely resolved. ‘You’re going to see the same judges that would grant the universal injunctions prior to Trump v Casa be more lenient and certify these classes, so that they can issue the nationwide relief injunctions that the plaintiffs are seeking,’ she says. However, she adds that a class certified by a district court may be decertified at a later point.

The silver lining for groups challenging the executive orders is that the recent class actions will be more procedurally defensible if they end up before the nation’s highest court, Stein says. He believes that at least the procedural basis for injunctions in class actions will probably be upheld at the Supreme Court level. ‘Whether they will agree on the substance [and] merits of the case is an entirely different question,’ says Stein.

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UK introduces rules to hold big tech accountable for child safety

Alice Johnson, IBA Multimedia Journalist

During the summer, child safety rules introduced as part of the UK’s Online Safety Act 2023 came into force. To comply, online platforms, including social media companies and search services, must implement age verification checks to block people under 18 from accessing ‘harmful content’ including pornography and material that might promote eating disorders, self-harm and suicide.

‘The Online Safety Act starts with the idea of regulating systems and processes,’ says Lorna Woods, a professor at University of Essex whose research contributed significantly to the legislation. ‘Back in 2017, people were becoming aware that the way a platform is designed does impact the way people behave.’

Other requirements for online platforms introduced by the Act include the duty to take down illegal content and empower users to report problems online and filter the content they can see. Failure to comply can result in companies facing fines of up to £18m or ten per cent of their global revenue, whichever is greater.

‘It is a huge relief now that companies will be legally obliged to keep young people safe online,’ say members of UK charity the National Society for the Prevention of Cruelty to Children’s (NSPCC) Young People’s Board for Change.

The introduction of laws that aim to make the internet safer, especially for children and vulnerable users, is an area of increased focus, with similar laws introduced in the EU, France and Australia. Legislators have been under increasing pressure to introduce stricter regulation of tech companies as concern has grown about the mental health impacts of internet and social media use. The Center for Countering Digital Hate says the Online Safety Act is a ‘vital, evidence-based law’ that has ‘set a global standard for protecting children and communities online’.

The new rules have faced pushback from campaigners who say they’re concerned about the implications for data privacy and freedom of expression on the internet. According to Ofcom, the UK’s communications regulator, sites or social media platforms with adult or harmful content are required to implement ‘highly effective’ age assurance tests which can include requiring users to upload photo identification, allow access to banking information or undergo facial age estimation. The Act requires online platforms to ensure that their age verification systems – whether in-house or through a third-party provider – comply with UK data protection laws and collect only necessary information for as long as it’s needed.

Woods says that while data protection is a legal requirement in the UK, international data protection standards specifically for age verification systems should be introduced to ensure providers have greater clarity on what’s expected of them and reduce the risk of inappropriate data use. ‘There is a question of data protection, but I don’t know automatically that all industry actors are equally problematic,’ she says.

Experts have also raised concerns about the vulnerability of age verification systems to cyberattacks and data breaches, with recent catastrophic data leaks underlining the importance of robust data security. In July, Tea, a US-based dating safety app for women, experienced a significant data breach exposing the identification photos and private conversations of its users, and in the UK, a High Court judge lifted a superinjunction to reveal a catastrophic leak by the Ministry of Defence of the identities of over 18,000 Afghans who had applied for relocation to the UK following the Taliban takeover of Afghanistan in 2021. ‘All the legal safeguards that can be put in place will never prevent a breach or a hack,’ says Raphaël Dana, an officer of the IBA Technology Law Committee and a member of the Paris Bar. ‘One day you will open the wrong attachment or insert a USB that is contaminated.’

Dana says that online platforms requesting users to upload their identification documents may create a chilling effect on freedom of speech because of the fear of repercussions in the case of a leak. ‘It is important to keep technical ways to ensure the internet is the one worldwide platform where oppressed people for reasons based on their race, religion, philosophical beliefs, sexual orientation, are able to be heard,’ he says.

The UK Online Safety Act and France’s Sécuriser et Réguler l’Espace Numérique (SREN) law do not give regulators the power to determine what people see online and place duties on platforms to protect freedom of expression and political debate, with special protections for journalism and content of ‘democratic importance’.

Another challenge related to the online safety rules is people using virtual private networks (VPNs) – which can conceal a user’s IP address and location – to circumvent the safeguards and access age-gated content. In July, after websites such as Reddit and X began rolling out age verification, VPN apps became the most downloaded on Apple’s app store. ‘Circumvention is perhaps inevitable but maybe the law is like putting speed bumps in the road,’ says Adam Rose, an officer of the IBA Technology Law Committee and partner at Mishcon de Reya in London. ‘It slows enough people down and that makes the roads safer.’

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