Lawyer Limelight: Rafey Balabanian

Rafey Balabanian didn’t set out to be a trendsetter. He wanted to help people; the trends followed.

The son of Armenian immigrants, Balabanian found his way to his current plaintiffs’ privacy and mass action practice through trial-and-error: He fell in love with arguing cases before a judge as a prosecutor for the City of Chicago’s traffic court in his third year of law school; he represented tenants in landlord tenant litigation for a while after that; then he tried commercial litigation. Each job helped him get a little bit closer to determining what mattered most to him as a lawyer. He found that answer in his current firm, Edelson.

In its nascent stages when Balabanian joined on, the firm has grown substantially in the last 15 years – and so has Balabanian. With a knack for choosing the right risks, sheer determination and unbridled commitment to his clients, he has lit up the plaintiffs’ bar with headline-grabbing privacy and class action litigation. When privacy litigation exploded in the last decade, Balabanian and his team were at the helm. Among others, he has litigated major cases against Facebook, including a precedent-setting biometric data case that recently settled for $650M. “All of those issues were completely untested at the time,” he says. “That's always a dangerous game, of course, but we poured our heart and soul into it.”

Recently, he has found similar passion for a burgeoning mass action practice, with prominent cases including the NCAA college football concussion litigation and advocating for victims of the wildfire in Paradise, Calif. In another untested area, he and his team have been taking on gambling app companies for purposely making users addicted to the platforms. Though finding standing in new areas of litigation is always a challenge, Balabanian was committed to ensuring victims received the compensation they were owed. In 2020, they settled with Big Fish Games and Churchill Downs for $155M, and a $415M settlement is pending approval in a class action against mobile gaming company DoubleDown Interactive.

Balabanian has never been afraid of risk – not when he knows that there is a victim who deserves his advocacy. Calculated risk combined with razor-sharp intuition has seen Balabanian successfully serve his firm, his clients and the plaintiffs’ bar.

LD: How did you start your journey with Edelson?

RB: A very close friend of mine had just started at what’s now Edelson. There were only about four people at the firm at the time. I got an interview with Jay Edelson, and I was honored that he saw something in me.

LD: Do you know what it is exactly he saw in you?

RB: He saw that I was willing to put myself out there and that I wasn't fearful of going out and doing things that I had never done before.

That was how the job was pitched: “We’re trying to build a firm, we're bringing huge cases against huge companies, and it's going to be quite a fight. You're going to do things that make you uncomfortable that you've never done before.” It sounds cheesy, but I think he saw that I would run through brick walls for the firm.

LD: And what did you see in him and in the firm?

RB: Jay's a brilliant person. He has this uncanny ability to motivate people and to lay out a vision.

He always had these huge, lofty goals for the firm. When you look back on it, you wonder at the time how we didn’t think he was totally crazy. After all, it was just a few of us ­– how did he have such high hopes for us; how does he have such unwavering confidence in our ability to make our mark on the plaintiffs’ bar and change the law? He was inspiring.

LD: Now that you’ve seen the firm grow and develop over the years, what makes it unique?

RB: We have always been – and this starts with Jay – focused on long-term goals. Everything is about building a practice that is sustainable and something that we could be proud of in every way, shape and form – something that was very different from the traditional law firm model.

We think of ourselves as change agents, and that certainly is the case when it comes to the plaintiffs’ bar. Thirty years ago, class actions were used as a means to get the lawyers paid. They would file cases in friendly jurisdictions and random state courts that provided little relief to the class, but a huge fee payout to the lawyers. You can do that and get rich off of it, but it's not a sustainable model, and it certainly doesn't make you feel good. Most importantly, it's antithetical to what we should be doing as plaintiffs’ lawyers.

So, we’ve always focused on putting together settlements that provide real relief to our clients. Our view was that if we do that, then the money, to us, is a natural byproduct. Defendants take note of that, too, which raises the bar for everyone. We appear in front of the same judges over and over again, and you want them to respect you and what you do, and that's really the only way to achieve that. There aren’t too many places to hide once you're exposed for doing it the other way.

It sounds cheesy, but I think he saw that I would run through brick walls for the firm.

LD: Tell me a bit about the firm’s culture – it seems different, fun and cutting-edge.

RB: We try to cultivate an environment where it's not stuffy, where you're not having to wear a suit every day, where we honestly try to all get along as best we can. As the firm grows, things change in some ways, but we try to carry over that culture that we had from the start.

LD: What’s changed?

RB: It's not quite as rowdy as it used to be. Ping pong used to really take an outsized role in our lives. The Chicago office has a volleyball court in it. It's a random sport to put in your office space, but it's quite collegial and it's a lot of fun to just bat the ball around a little bit.

LD: I know the firm prides itself on taking on cases that other firms won’t. Can you give me an example of that?

RB: A good example in a general sense is privacy litigation. When the firm started out in about 2007, privacy was not on anyone's radar – certainly not the courts’. The laws were, and still are in large part, antiquated. They didn't address things like privacy issues, the rise of tech and how that was going to affect people's lives, and what it meant to lose your privacy through the various tech that we all have on a daily basis now. There were no privacy cases in a real way back then, and there certainly was no money in it – but we saw the way that we thought that the world was going, and we carved out a niche in that area because we saw that it was lacking.

There were not a lot of firms who were willing to bring those types of cases. Standing was a major issue, whether or not you could get statutory damages or whether there was a private right of action for this or that – all of those things were much more unsettled when the firm started out.

LD: Tell me about that case against Comscore, which was one of your earliest privacy cases.

RB: We alleged that they would install spyware on users’ computers without their knowledge or consent. We filed the case in federal court in Chicago, and fought for a long time.

That case really broke new ground. The claims didn't fit nicely within the statutes at the time, but we fought very hard to advance the case, to push it towards certification, then trial. We did get that class certified, and we ended up settling the case for $14M, which was a huge settlement to us back then, in 2014.

Then you fast-forward to 2020, when we came up with the Facebook case under the Illinois Biometric Information Privacy Act.

LD: Tell me that story.

RB: We had been litigating with Facebook for years on various matters. So, this was a case that our tech team had looked into for a long time: We wanted to understand what the photo tagging feature on Facebook was really doing. Based on our analysis, we felt as though Facebook was unlawfully collecting biometric information through that feature and weren't properly disclosing it under the Illinois statute. So, in 2015 we brought suit, and a couple other firms did as well afterwards, and we all worked together quite nicely.

We fought that case as hard as we possibly could have. It was originally filed in the Northern District of Illinois, but transferred to the Northern District of California. We got the class certified, and long story short, we ultimately settled on the eve of trial – the final settlement was $650M.

LD: What were the biggest challenges of that case?

RB: Standing was a huge issue in that case. Certifying the class was not an easy task because of the issues related to determining who was covered under the Illinois statute. Was it Illinois residents? Was it people passing through Illinois? There were all types of issues that arose with respect to that and whether or not you could define a class precisely enough in order for it to be ascertainable and certifiable. On the merits issues, we had to argue whether or not Facebook's technology actually did collect and harvest biometric information, or whether something else was going on that didn't fall within the purview of the statute.

We had teams from Robbins Geller and Labaton Sucharow working on the case, and we worked quite well together and have worked on other matters together since. And we were up against Meyer Brown, who had excellent lawyers as well. So, from start to finish, it was quite a battle.

LD: Do you thrive on that risk?

RB: We do. It's the nature of the game. As an up-and-coming firm, you have to get those big wins, I believe, in order for future defendants to take you seriously and to understand that the case isn't going to go away based on a low-ball offer. It takes years of staying true to your principles and proving that over and over again in order for you to command the attention of those big defendants.

We saw the way that we thought that the world was going, and we carved out a niche in that area.

LD: What continues to excite you about your practice?

RB: Our practice has changed quite a bit over the last five years. We've moved into the mass action space a lot, as well. While I truly believe that privacy issues are real and deserving of all of our efforts, the human element of mass actions is something that also keeps me going.

LD: Tell me about some of those – like the football concussion litigation.

RB: The NCAA cases are near and dear to my heart. We've been working on them for years. We still have a long way to go, and it's an uphill battle, but we’re not going anywhere.

I try not to get too emotional about cases. I try not to demonize the other side. But I do have a real problem with the way the NCAA has conducted itself over the years as it relates to the health and safety of their student athletes. The reality is these are kids who trust the adults to keep them safe and healthy and to tell them the truth about things, and I don't believe that happened when we’re talking about repeated hits to the head. These former players deal with the effects of that in a life-changing way on a daily basis.

Another recent mass action arose out of the campfire that took place in Paradise, Calif. In November of 2018. We had over a thousand clients who suffered losses and who had loved ones perish in the fire. We heard the stories of people who fled the fire and who lost not just everything that they owned, but everything they knew – their entire way of life was completely uprooted in a moment.  

LD: What other cases are keeping you busy lately?

RB: We have a lot of gambling app cases right now, which are a fusion of our practice – they’re part tech cases and part mass actions in the sense that people lost so much money through the addictive nature of those apps. They’re just another example of predatory practices: You can download these gambling apps on your phone, and you can set it up so they're attached to your bank account or your credit card.

We hear story after story of people who became addicted to these games, and not just through their own fault, but because these companies actively sought to get them addicted, just like casinos do. People have been left destitute by these unscrupulous practices.

So, we brought those cases around 2014 in various jurisdictions across the country. We lost every one of them in the trial courts. They were all dismissed for lack of standing, or failure to state a claim, or any number of reasons that the courts came up with. But we appealed all of them because we believed in those cases. Nobody would touch those cases until we started winning them.

People have been left destitute by these unscrupulous practices.

LD: What are your hobbies outside of your practice?

RB: I love playing tennis. I played growing up and for a brief stint in college as a walk on.  A few years ago, I picked up boxing, too. We sponsor an up-and-coming MMA fighter who lives with us, teaches us different skill sets and teaches my boys how to wrestle.

Other than that, I just like spending time with my family. My two boys are my entire world, and my wife is truly my better half – an amazing person who is just as responsible for any success that I've managed to achieve.