Duane Morris Takeaway: Happy Holidays to our loyal readers of the Duane Morris Class Action Defense Blog! Our elves are busy at work this holiday season in wrapping up our start-of-the-year kick-off publication – the Duane Morris Class Action Review – 2026. We will go to press in early January and launch the 2026 Review from our blog and our book launch website. This announcement also marks our 600th blog post.
The 2026 Review builds on the success of our previous editions and represents our 22nd annual study of the class action space. It will be the biggest and most comprehensive edition yet, at over 750 pages. The 2026 Review has more analysis than ever before, with discussion of over 1,700 class certification rulings from federal and state courts over this past year. The Review will be available for download as an E-Book too.
The Review is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting Corporate America, including the substantive areas of antitrust, appeals, the Class Action Fairness Act, civil rights, consumer fraud, data breach, EEOC-Initiated and government enforcement litigation, employment discrimination, the Employee Retirement Income Security Act of 1974, the Fair Credit Reporting Act, labor, privacy, procedural issues, product liability and mass torts, the Racketeer Influenced and Corrupt Organizations Act, securities fraud, state court class actions, the Telephone Consumer Protection Act, wage & hour class and collective actions, and the Worker Adjustment and Retraining Notification Act. The Review also highlights key rulings on attorneys’ fee awards in class actions, motions granting and denying sanctions in class actions, and the top-class action settlements in each area. It also will contain a brand-new appendix featuring analysis of rulings in the generative artificial intelligence and crypto space. Finally, the Review provides insight as to what companies and corporate counsel can expect to see in 2026.
The Duane Morris Class Action Review was recently cited in briefing to the U.S. Supreme Court in as the authoritative source on FLSA certification statistics and the widening circuit split regarding when it is appropriate to send notice to would-be plaintiffs, under 29 U.S.C. § 216(b) in a Fair Labor Standards Act (“FLSA”) collective action.
In its review of our practice group’s resource, Employment Practices Liability Consultant Magazine (“EPLiC”) said, “The Duane Morris Class Action Review is ‘the Bible’ on class action litigation and an essential desk reference for business executives, corporate counsel, and human resources professionals.” EPLiC continued, “The review is a must-have resource for in-depth analysis of class actions in general and workplace litigation in particular.
With the submission of our analysis to the U.S. Supreme Court, we are humbled and proud to be cited as the authoritative source in the class action space. The Review is also relied on by some of the world’s largest plaintiffs’ firms and federal judges, see, e.g., Laverenz v. Pioneer Metal Finishing, LLC, 746 F. Supp. 3d 602, 614 (E.D. Wis. 2024). The Duane Morris Class Action Review is the “one stop shop” and authoritative source on collective action certification rates, collective action trends and analysis, and the implications, pressures, and contours that parties face when engaged in FLSA collective action litigation.
We look forward to providing the 2026 edition of the Review to all our loyal readers in early January. Stay tuned and Happy Holidays!
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Bernadette Coyle with their discussion of the 2025-2026 edition of the American Tort Reform Association’s (“ATRA”) “Judicial Hellholes Report,” which details the eight least favorable venues for corporate defendants across the country.
Jerry Maatman: Thank you for being here, loyal blog listeners and readers, for the next episode of our ongoing series entitled The Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today is my colleague, Bernadette Coyle. Welcome, and thanks for being on the podcast.
Bernadette Coyle: Thanks, Jerry, I’m very happy to be here.
Jerry: Today, we’re discussing the annual report prepared by the American Tort Reform Association, known by the acronym ATRA, which is called the “Judicial Hellholes Report.” It focuses on litigation issues and identification of jurisdictions likely to have unfair or biased administration of justice that, in essence, are very difficult places in which corporate defendants are sued. This is an important read for corporate counsel facing class action litigation, because it identifies the who, what, when, where, and how of what jurisdictions are most difficult in which to defend class action litigation.
Bernadette: That’s right, Jerry. The report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, which generally is to the disadvantage of defendants.
Jerry: This year’s report identified eight total jurisdictions in its list, down from 10 that were identified last year. I’m sure our loyal blog listeners are anxious to hear what jurisdiction came out on top of the list as the most unfavorable jurisdiction in which to be sued.
Bernadette: Jerry, topping the list this year is Los Angeles. Although California has long been considered a plaintiff-friendly state, this year in particular, lawsuit abuse and judicial bias in Los Angeles have set it apart and pushed it to the top of the list. The report points to a $1 billion nuclear verdict, allegations of litigation abuse, and courts leaning into novel liability theories that broaden exposure for defendants. And small businesses are targeted in particular, being hit with ADA and no injury suits, while arbitration continues to face judicial resistance in California.
Jerry: Well, speaking from my own personal experience, I would agree it’s a very difficult place to practice law and defend cases, and its inclusion and placement at the top of the list comes as no surprise. Moving to number two is New York Metro, New York City. What’s happening there on the list?
Bernadette: New York City remained at number two this year, and the ATRF calls it a “fraudemic.” The city continues to produce nuclear verdicts, courts are expanding product liability theories, especially against tech companies, and both no-injury filings and asbestos cases remain heavy in New York City.
Jerry: Number three came in with South Carolina. It’s been on the radar for years of the American Tort Reform Association.
Bernadette: Exactly. The ATRF criticizes the relaxed causation standard, frequent sanctions, and even notes instances where courts increased jury awards because it believed that the jury did not go far enough.
Jerry: Let’s hit the rest of the list of eight. Louisiana, I believe, comes in fourth.
Bernadette: Yes, the first coastal litigation case finally went to trial, and it ended in a nine-figure verdict. Interestingly, the ATRF also points to political connections between plaintiffs’ lawyers and state leadership.
Jerry: Fifth is Philadelphia jurisdiction, where we’re handling many class actions.
Bernadette: Right, and also last year’s defending champion. A RICO lawsuit has raised allegations of fraud in the court system, and the complex litigation Center continues to attract mass tort filings, and historic nuclear verdicts are becoming more common.
Jerry: Sixth is Missouri in general, and St. Louis in particular. What are you seeing there?
Bernadette: Yes, the ATRF says courts there continue to allow junk science, and out-of-state plaintiffs are targeting St. Louis small businesses with ADA lawsuits. Judges have even overturned jury verdicts that they disagreed with.
Jerry: Seventh is a familiar Illinois trio, the counties of Cook, Madison, and St. Clair, the latter two of which were the motivating factors for the Class Action Fairness Act of 2005 that President Bush signed into law to allow for easier removal from state court to federal court. What’s happening on the Illinois front?
Bernadette: They are described as ground zero for baby formula litigation supported by questionable science. Also, litigation tourism persists, asbestos filings are high, and nuclear verdicts continue.
Jerry: And rounding out the list, at number eight is the state of Washington in general, and King County, in particular, where we’re seeing a rise of many employment-related class actions.
Bernadette: Correct. The report highlights the reinstatement of a nuclear verdict, expanded asbestos liability, and King County’s role in pioneering climate change litigation against energy companies. And as we’ve seen, there’s also been a sharp increase in class actions brought under the EPOA this year in Washington.
Jerry: Let’s shift now to the ATRA’s watch list. It highlights six jurisdictions that are not full judicial hellholes, but have been trending in that direction. What should our listeners know about the watchlist?
Bernadette: Three Georgia counties, Gwinnett, Fulton, and Cobb, are under scrutiny despite statewide reforms. The Pennsylvania Supreme Court did have a quieter year this year, but remains influential, especially in forum shopping and arbitration filings. Texas is seeing a rise in pro-plaintiff leanings and state-sponsored lawsuits. Michigan has major decisions pending, Louisiana still faces fallout from fraud schemes, and Kentucky continues to produce nuclear verdicts.
Jerry: The report also calls out what it calls dishonorable mentions. What stands out to you in terms of that list?
Bernadette: There are three main concerns noted in the report. First, the Fourth Circuit’s broad approach to public nuisance, a Colorado evidentiary ruling that the ATRF finds troubling, and Ohio appellate courts that are permitting unlimited non-economic damages.
Jerry: Well, it’s not all doom and gloom. There is a little bit of positive light. What does the report, refer to in terms of what it characterizes as “points of light”?
Bernadette: Yes, and there are some significant ones. Colorado rejected medical monitoring damages, Delaware and Maine pushed back on junk science and public nuisance expansion, North Carolina reaffirmed caps on non-economic damages, and the Utah Supreme Court eliminated phantom damages.
Jerry: Well, Bernadette, thanks so much for guiding us through the tour of the 2025-2026 Judicial Hellholes Report. It’s essential reading for corporate counsel, and certainly any company involved in high-stakes litigation or defending class action litigation. The report certainly manifests what we see on a daily basis in terms of the epicenters of class action litigation, and where the plaintiffs’ bar tends to file their cases in terms of trying to gain an advantage over corporate defenses.
Well, thanks so much for being here, Bernadette, and providing us with your thought leadership in this space.
Bernadette: Thank you for having me, Jerry, and thank you, listeners.
By Gerald L. Maatman, Jr., Eden E. Anderson, and Rebecca S. Bjork
Duane Morris Takeaways: On December 9, 2025, Judge Yvonne Rogers of the U.S. District Court for the Northern District of California held in Williams, et al. v. Moon Active Ltd., Case No. 4:25-CV-01626 (N.D. Cal. Dec. 9, 2025), that when a minor to a contract states her intent to disaffirm “all contracts” with a defendant, such disaffirmance of a contract “as a whole” presents an issue of contract validity for an arbitrator to resolve, and is not a specific challenge to an arbitration clause’s delegation provision that a court must resolve. Under the Williams decision, if a minor wants a court to rule upon the validity of a delegation provision contained within an arbitration agreement, then the minor must specifically disaffirm the delegation provision and not merely the whole of the contract within which the delegation provision appears. As such, this ruling is a required read for corporate counsel managing litigation risks through arbitration program.
Case Background
D.K., a minor, used the defendant’s Coin Master mobile game, which allowed users to purchase coins to spin a slot machine feature. When D.K. created an account to play Coin Master, a pop up screen asked her to confirm she was over 18 and that she had read and agreed to Terms and Conditions (Terms) applicable to her usage, with a hyperlink to those Terms also furnished. The opening paragraph of the Terms mentioned in bold that the Terms included an arbitration clause, and provided a link directly to the section of the Terms containing the arbitration clause. The arbitration clause included a delegation provision whereby any disputes concerning the enforceability, validity, scope or severability were delegated to the arbitrator to resolve.
D.K.’s mother filed a class action lawsuit on her behalf asserting claims for negligence, unjust enrichment, and violations of California’s unfair competition law, and her counsel then sent letters to the defendant indicating that D.K. disaffirmed “all contracts” with the company. Id. at 3. The defendant moved to compel arbitration.
The Decision
The court granted the motion to compel arbitration. The court first addressed whether an arbitration contract had been formed. Because California law permits a minor to contract in the same manner as an adult subject to the power of disaffirmance, and because conspicuous notice of the arbitration clause was furnished, the court held the Terms were a validly formed contract between the parties.
As to whether D.K. had disaffirmed the Terms by sending a letter to the defendant disaffirming “all contracts,” the court agreed with the defendant that such issue was a validity challenge to the Terms as a whole that needed to be resolved by the arbitrator pursuant to the delegation clause. D.K. argued that the delegation clause could not apply since she had disaffirmed the Terms. In rejecting this argument, the court explained that while courts are permitted to decide specific challenges to delegation clauses, it is arbitrators who, pursuant to delegation clauses, are to determine challenges to the validity of an arbitration agreement as a whole. The court found that D.K.’s letter, which disaffirmed “all contracts,” was a challenge to the Terms as a whole because the letter did not single out the arbitration clause or its delegation provision. In so holding, the court distinguished the circumstances that were present in J.R. v. Electronic Arts, 98 Cal.App.5th 1107 (2024) because the minor there has specifically disaffirmed “any” contract rather than “all contracts.”
Implications of the Decision
The Williams decision highlights the importance of the wording used when a minor seeks to disaffirm an arbitration agreement.
Under Williams, for a court to address the validity of a delegation provision within an arbitration agreement, the minor must specifically disaffirm the delegation provision itself and not generally disavow “all contracts.”
Duane Morris Takeaways: The American Tort Reform Association (“ATRA”) annually publishes its “Judicial Hellholes Report,” focusing on litigation issues and identifying jurisdictions likely to have unfair and biased administration of justice. The ATRA recently published its 2025-2026 Report and this year there was a brand-new entry for the #1 position as the most challenging venue for defendants – the courts of Los Angeles. Readers can find a copy here and the executive summary here.
The Judicial Hellholes Report is an important read for corporate counsel facing class action litigation because it identifies jurisdictions that are generally unfavorable to defendants. The Report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants. The Report is a “must read” for anyone litigating class actions and making decisions about venue strategy.
The 2025-2026 Hellholes
In its recently released annual report, the ATRA identified eight jurisdictions on its 2025-2026 hellholes list – which, in order, include: (1) Los Angeles (with massive nuclear verdicts, abusive litigation practices, and predatory no-injury lawsuits); (2) New York City (at this spot for the second time in a row, with expansive theories of product liability for tech companies and lawsuit abuses); (3) South Carolina (particularly due to a bias against corporate defendants in asbestos litigation); (4) Louisiana (namely, with the coastal litigation trial which concluded in a nine-figure verdict and various political biases); (5) Philadelphia Court of Common Pleas (for mass torts litigation); (6) St. Louis, Missouri (with focuses on junk science in the courtrooms and out-of-town ADA litigation); (7) Cook, Madison, and St. Clair Counties, Illinois (for baby formula and asbestos litigation); and (8) King County, Washington and the Washington Supreme Court (for junk science in the courtrooms and novel climate change litigation).
According to the ATRA’s analysis, these venues are less than optimal for corporate defendants and often attract plaintiffs’ attorneys, particularly for the filing of class action lawsuits. As a result, corporate counsel should take particular care if they encounter a class action lawsuit filed in one of these venues.
The “Watch List”
The ATRA also included six jurisdictions on its “Watch List” — up from only one on the previous list. These are listed in no precise order, and according to the Report, bear watching due to expansive liability and concerning trends. The Watch List selections include: Gwinnett, Fulton, and Cobb Counties in Georgia, after Georgia as a whole fell from the Hellholes list after significant reforms, these counties could remain problematic); Pennsylvania Supreme Court (which was previously listed in the Hellholes list with the Philadelphia Court of Common Pleas, and was moved to the Watch List after reforming some of the issues with forum shopping; Texas (with pro-plaintiff leanings and nuclear verdicts in trial courts); Michigan Supreme Court (which has yet to issue several high-profile, long-awaited decisions); Louisiana (on the watch list see how 2025 civil justice reforms impact the courts); and Kentucky (with regard to the trial court’s large verdict awards).
The “Dishonorable Mentions”
The ATRA included a few jurisdictions on its “Dishonorable Mentions” list, for making unsound decisions, engaging in abusive practices, or other actions that “erode the fairness of a state’s civil justice system.” The venues on the list include: (i) the Fourth Circuit (views on public nuisance); (ii) a Colorado Court (due to problematic evidentiary decision); and (iii) Ohio Appellate Courts (which permitted unlimited noneconomic damages).
Points Of Lights
In addition, the ATRA recognized that several jurisdictions made significant positive improvements this year, highlighting decisions by a Colorado court that dismissed a medical monitoring damages theory, the Delaware Supreme Court, which rejected junk science, the Maine Supreme Court, as it declined to broaden the scope of public nuisance liability, a North Carolina court which addressed legislative authority to limit noneconomic damages, and the Utah Supreme Court, which eliminated “phantom damages” windfalls.
Implications For Employers
The Judicial Hellholes Report often mirrors the experience of companies in high-stakes class actions, as California, New York, South Carolina, Louisiana, Pennsylvania, Missouri, Illinois, and Washington are among the leading states where plaintiffs’ lawyers file class actions. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and more generous damages recovery possibilities under state laws.
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Alex Karasik with their discussion of a North Carolina federal court decision adopting a magistrate judge’s recommendation to deny a motion for decertification of FLSA claims and grant the certification motion for state law claims.
Jerry Maatman: Thank you, loyal blog readers and listeners, for joining us again this week for the next episode of our weekly podcast series entitled The Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today is my colleague and partner Alex Karasik. Welcome so much, Alex, for being on the podcast.
Alex Karasik: Great to be here, Jerry. Thank you for having me.
Jerry: Today, we’re going to discuss an important ruling that emanated from North Carolina. It’s in a case called Landis v. The Elevance Health Cos., and it involves a Fair Labor Standards Act (FLSA) case and a North Carolina wage and hour law case. It involves a recommendation made by a magistrate judge to not decertify a FLSA conditionally certified collective action, and then on top of it, to certify a Rule 23 class under state law. From your perspective, Alex, in terms of following these sorts of rulings, what stands out to you, and what should employers take away from this ruling?
Alex: What stands out is the court’s straightforward endorsement. By finding no clear error, Judge Boyle confirmed that both the FLSA collective action and the North Carolina Wage and Hour Act class claims should remain intact. That was certainly a unique ruling to me.
Jerry: Well, these are misclassification claims by the plaintiff, Kathy Landis. Could you give our listeners a quick recap of what this lawsuit was all about?
Alex: Yeah, certainly, Jerry. Landis alleged that Elevance, formerly the Anthem Companies and its subsidiary, Amerigroup, misclassified utilization reviewers in the Nurse Medical Management (NMM) job titles as exempt employees. Landis and the other plaintiffs alleged that they were salaried, classified as exempt, and routinely worked more than 40 hours in a work week, and therefore did not receive overtime compensation for the hours worked beyond 40. Their primary job duty was utilization review, which is essentially assessing whether requested healthcare services are medically necessary using objective clinical criteria.
Jerry: The study we do each year in the Duane Morris Class Action Review gathers statistics on decertification motions, and in past years, basically a jump ball, 50-50 between plaintiffs and defendants. In this particular case, what were the factors that led the court to deny decertification of the collective action?
Alex: In this instance, the magistrate judge found that similarities across all NMM rules outweighed the differences. All NMMs used the same software systems, they reported with a common supervisory structure, they performed standardized utilization review, they followed similar approval and escalation procedures. So even though sometimes there were different guidelines, the main functions remained the same. The magistrate judge stated that the differences were not meaningful to the core question of exempt status and whether or not they were misclassified. In other words, even if the day-to-day details varied among the people in the case, the variations did not alter the legal inquiry under the FLSA.
Jerry: One way to think about decertification is the concept of chaos. You can’t put one person on the stand, they tell their story, and it transposes to everyone else. What was the court’s take on the defendant’s argument about the individualized nature of the duties, the jobs, the tasks at issue here?
Alex: Yeah, the court didn’t find that persuasive in this case. Judge Swank found that the defendants overstated the amount of individualized analysis that would be required. She concluded that the collective could be analyzed efficiently and because the exemption issue was common across the group. The court opined that the central question was whether the utilization reviewers were exempt, or were they performing exempt or non-exempt work, and minor variations among the work performed wouldn’t alter that inquiry. The magistrate judge also found that collective treatment would be a more efficient method in terms of adjudicating these claims as opposed to an individual case. The magistrate judge concluded that all factors weighed against decertification.
Jerry: Many believe that obtaining conditional certification of a collective action is easier than obtaining Rule 23 certification of a class action. How did the court treat theories that the plaintiffs offered here for Rule 23 certification of their state law wage and hour claims?
Alex: Yeah, the court here essentially rejected the defendant’s arguments in terms of what they disputed in the case of the Rule 23 factors. She stated that the class shared a central question of whether individuals in these roles whose primary job was utilization review. We’re properly classified as exempt. The court held that the variations in hours worked or guidelines used did not defeat commonality, because the exemption question could be answered with common evidence.
Jerry: Commonality under Rule 23(a)(2) is one thing, but predominance under Rule 23 is another, and a very exacting, difficult test. How did the court react to the defenses of predominance and superiority in this context?
Alex: Judge Swank found that common issues predominated because the exemption question was common across the class, and it could be resolved using largely uniform evidence, such as their job descriptions, the deposition testimony about the review process, and Elevance’s uniform exemption policy. In other words, the judge concluded that a class action would be the superior method for adjudicating these claims.
Jerry: Well, thanks so much, Alex, for your overview and thought leadership in this area. The Duane Morris Class Action Review is about a month out from being launched. Chapter 23 is the wage and hour chapter, probably the meatiest chapter in the entire book in terms of the volume of rulings, and this certainly is a good case study of how plaintiffs have succeeded, at least in North Carolina, in certifying their cases. So, thanks so much for being here today, and being our guest speaker on this week’s podcast.
Alex: Well, thank you, Jerry. I’m grateful for the opportunity to be here, and thank you to our listeners.
Duane Morris Takeaway: Duane Morris proudly invites you to the Duane Morris Class Action Review – 2026 Book Launch Event on Thursday, February 5, 2026, from 3:30 p.m. to 6:00 p.m. at the Northwestern Pritzker School of Law. Click here to register and attend! In-person and virtual options available.
About the Program
Featuring authors Gerald L. Maatman, Jr. and Jennifer A. Riley with Hon. Wayne R. Andersen (Ret.), JAMS Neutral and former U.S. District Judge for the Northern District of Illinois, in a discussion of the key class action trends and rulings in 2025 and what companies can expect in 2026.
By Gerald L. Maatman, Jr., Rebecca Bjork, and Anna Sheridan
Key Takeaways: In EEOC v. Security Assurance Management Inc., No. 25-CV-00181, 2025 WL 2911781 (D.D.C. Oct. 14, 2025), Judge Rudolph Contreras of the U.S. District Court for the District of Columbia refused to pare back the EEOC’s pregnancy and lactation claims against Security Assurance Management, Inc. (“SAM”), leaving all five causes of action under the Pregnant Workers Fairness Act (PWFA) and both Title VII counts intact. Applying Rule 12(c), the Court held – in an order denying Defendant’s Partial Motion to Dismiss – the “heavy burden” on a defendant seeking judgment on the pleadings and determined that the EEOC’s theories — though factually overlapping — targeted distinct harms and therefore were not “duplicative.” The Court’s refusal to dismiss any of the EEOC’s PWFA counts sends a clear signal that defendants will face an uphill battle when trying to narrow pregnancy-related claims at the pleadings stage, particularly after filing an answer.
Case Background
The EEOC filed suit under Title VII and the PWFA on behalf of Simone Cooper, a special police officer who was reassigned after the client at her post did not want her working at the site while pregnant. (Compl. ¶ 17). As the court summarized, the EEOC “brings this employment discrimination action against Security Assurance Management, Inc. pursuant to Title VII … and the Pregnant Workers Fairness Act,” alleging that SAM “disciplined and removed an employee, Simone Cooper (‘Ms. Cooper’), from her assignment due to her pregnancy-related condition and her need for accommodations.” Id. at *3.
After her maternity leave, Cooper was placed at a Hampton Inn post where she “was breastfeeding and had the pregnancy-related medical condition of lactation.” Id. The court noted that she “could nonetheless perform the essential functions of her job as an Unarmed Special Police Officer,” but SAM “repeatedly denied or ignored Ms. Cooper’s accommodation requests.” Id. The consequences were significant, as “Ms. Cooper leaked through her clothing during the workday on at least two occasions,” and because SAM provided no adequate space, “Ms. Cooper had to pump in her car in the Hampton Inn parking lot.” Id.
Despite outreach by Cooper, her union representative, and her attorney, the company allegedly did not engage in any interactive process. SAM eventually issued a written warning for “excessive absenteeism” that included days she was not scheduled and the day she left after leaking through her uniform. Id. at *4. She was later removed from the schedule entirely.
The complaint asserts seven claims, including two under Title VII and five under the PWFA for failure to accommodate, adverse action based on accommodation requests, denial of employment opportunities, retaliation, and interference. After it filed its Answer, SAM filed a partial motion to dismiss seeking dismissal of three of the counts as purportedly duplicative.
The Court’s Ruling
Because SAM filed an Answer before seeking dismissal, the court treated the request as a Rule 12(c) motion. As Judge Contreras explained, such a motion “will be granted only if Defendant can demonstrate that no material fact is in dispute and that it is entitled to judgment as a matter of law,” and at this early stage the movant “shoulders a heavy burden of justification.” Id. at *6.
The Court began with its definition, citing from Wultz v. Islamic Republic of Iran’s “duplicative claim test.” It explained that “duplicative claims are those that stem from identical allegations, that are decided under identical legal standards, and for which identical relief is available.” Id. at *7 (quoting Wultz, 755 F. Supp. 2d 1, 81 (D.D.C. 2010)). SAM argued that several PWFA claims were repetitive, but after analyzing each count, the Court held otherwise.
Most notably, SAM asserted that the “Adverse Actions” claim duplicated the PWFA retaliation claim because both concerned similar employment decisions. Judge Contreras disagreed, emphasizing that the counts “assert different motivations for Defendant’s allegedly unlawful conduct.” Id. at *8. The adverse-action theory centers on actions taken “on account of” Cooper’s accommodation requests, while retaliation requires adverse treatment because she opposed unlawful practices. “Because Count Two (Adverse Actions) and Count Four (Retaliation) arise from different allegations,” the court concluded, “the claims are not duplicative.” Id. at *9.
The Court applied the same reasoning to SAM’s attempt to collapse the PWFA adverse-action, denial-of-opportunities, and interference counts into the single failure-to-accommodate claim. Those theories, Judge Contreras explained, each addressed different harms and are evaluated under distinct legal standards. As a result, “none are duplicative,” and the Court denied the motion in full. Id. at* 7.
Implications For Employers
This opinion is a reminder that overlapping facts do not automatically render multiple statutory claims redundant — especially under the PWFA, where Congress created several discrete causes of action aimed at different workplace harms. Courts are giving each theory breathing room rather than collapsing them into a single “pregnancy discrimination” count.
Procedurally, the decision warns defendants against using post-Answer motions to trim suits. Under Rule 12(c), the movant faces a “heavy burden,” and close questions typically favor allowing the case to proceed to discovery.
Substantively, the facts the Court credited (removing a visibly pregnant worker at a client’s request, ignoring repeated lactation-related accommodation needs, forcing pumping in a car, and disciplining a worker for consequences of inadequate accommodations) are the kinds of scenarios likely to support claims not just under the PWFA, but also under Title VII.
The decision reinforces that the PWFA is a powerful, stand-alone statute with multiple actionable theories. Courts will not readily prune these claims at the pleading stage, and the EEOC is deploying them aggressively. Employers should treat pregnancy-related accommodation requests with the same rigor as disability accommodations – engage promptly, document communications, provide appropriate space and break time, and avoid client-driven decisions that move or remove pregnant workers.
By Gerald L. Maatman, Jr., Brett Bohan, and Andrew Quay
Duane Morris Takeaways: On November 25, 2025, in Coleman, et al. v. Burger King Corp., Case No. 22-CV-20925, 2025 U.S. Dist. LEXIS 231422 (S.D. Fla. Nov. 25, 2025), Judge Roy K. Altman of the U.S. District Court for the Southern District of Florida denied a motion for class certification of three nationwide classes of consumers against one of the Burger King after the lawsuit narrowly survived two motions to dismiss. The Court held that due to the predominance of individual questions between the proposed classes, and plaintiffs’ lack of class-wide evidence to support certification, the plaintiffs failed to establish the prerequisites for class certification from the sale of “Whoppers” and “Big Kings” across the country. The opinion illustrates the hurdles plaintiffs face when attempting to certify multi-state, let alone nationwide, classes, and the fundamental, yet effective arguments corporate counsel can raise to defeat them.
Case Background
Plaintiffs, a group of Burger King consumers alleging that Burger King materially overstates the size of its burgers in advertisements, sought certification of three nationwide classes. Id. at *2. Plaintiffs sought certification under Rule 23(b)(3), which allows a district court to certify a class only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. at *6-7 (quoting Fed. R. Civ. P. 23(b)(3)). Plaintiffs insisted that they each purchased a burger because of the advertising and would not have if the size of the burgers had been portrayed accurately. Id. at *3. Notably, the plaintiffs did not offer any substantive analysis on variations between state laws despite their request for certification of nationwide classes.
Burger King responded that plaintiffs’ motion could not satisfy predominance and superiority under Rule 23(b)(3) and commonality and typicality under Rule 23(a). Id. at *8. Burger King argued that plaintiffs’ lack of class-wide evidence, coupled with Burger King’s affirmative defenses that raise additional individualized questions, was fatal to their motion for class certification. Id. at *33. Also weighing against predominance, Burger King argued, the proposed class members “were exposed to a wide variety of advertisements,” and “[n]o single photograph of a burger . . . can represent the appearances of the burgers every other class member received.” Id. at *23, 28.
The Court’s Opinion
In a 35-page opinion, Judge Roy K. Altman denied plaintiffs’ motion for class certification for failing to carry their Rule 23 burden. Explaining that plaintiffs are not entitled to “a mere pleading standard” on a motion for class certification, and that they must “affirmatively demonstrate” their compliance with each element of Rule 23, the Court held that plaintiffs failed to establish predominance and superiority under Rule 23(b)(3) and, at minimum, commonality under Rule 23(a). Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).
As for predominance, the Court explained that Plaintiffs needed to be able to prove “the relative smallness of the burgers [they bought compared to the burgers in the advertisements] with a few pieces of common evidence that apply with equal force to everyone.” Id. at *30. Plaintiffs could not do that, the Court held, because each putative class member saw a particular advertisement and received a specific burger. Id. Plus, by seeking certification of nationwide or multi-state classes, plaintiffs bear the heavy burden to demonstrate that “variations in state law” do not threaten to “swamp any common issues and defeat predominance.” Id. at *10 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir. 2004)). Plaintiffs’ motion for certification did not provide “any analysis of potential state-law conflicts,” thus “utterly fail[ing]” to meet their burden of showing that common issues of law predominate. Id. at *12.
The Court further agreed that Burger King’s affirmative defenses raised additional individualized inquiries. If the Court were to grant certification, a “potentially significant percentage” of the putative class members may be precluded from pursuing their claims by virtue of an arbitration clause and class action waiver that loyalty rewards program users had agreed to, and with respect to at least one class, numerous plaintiffs and putative class members did not properly notify Burger King of the alleged breaches within a reasonable time after they discovered the alleged breaches.
For similar reasons, the Court rejected plaintiffs’ proffered method of calculating class-wide damages by subtracting the price of the burger from the value of the item as determined by the jury. Id. at *45. Burger King menu items vary by location, and the prices likely differed throughout the class period, so the Court would need to confirm when and where each individual plaintiff purchased a burger in order to compute damages. Id. at *46.
Turning to superiority, the Court held that plaintiffs’ proposed classes “would create an administrative nightmare.” Id. at *51. Plaintiffs contended that “there are no significant or unusual difficulties in managing this case” because Burger King’s liability “can be proven by its uniform advertisements and photographs of the actual Menu Items served to customers, which are common to the entire class.” Id. at *50. The Court rejected plaintiffs’ conclusory argument because the proposed class involves millions of consumers stretching to 2018, “very few of whom are likely to have retained proof of (or even remember) their fast-food purchases.” Id. at *52.
Finally, though not necessary for denying class certification, the Court held that plaintiffs failed to show that common questions they raised, such as whether Burger King’s advertisements are materially misleading, can be raised through class-wide evidence. Id. at *54. While plaintiffs offered questions common to the class, they failed to show that a class-wide proceeding would “generate common answers apt to drive the resolution of the litigation.” Id. at *55 (quoting Dukes, 564 U.S. at 350).
In sum, after narrowly surviving two motions to dismiss, plaintiffs were unable to surmount their burden at the class certification stage, and the Court denied their motion for class certification.
Implications For Companies
The Court’s holding in Coleman demonstrates the burden that plaintiffs must overcome when seeking to certify a class. Coleman shows that plaintiffs cannot rest on the allegations in their complaints to satisfy the elements of class certification and must instead put forth evidence from which courts may determine commonality and predominance.
In cases involving allegations of consumer fraud, it may not be sufficient for plaintiffs to establish that they were all deceived by the same allegedly fraudulent behavior. Instead, to certify a nationwide class, plaintiffs may also need to overcome differences between locations; difficulties in supplying reliable, supporting proof; and variations between state laws.
Additionally, Coleman represents a reminder of the continued utility of an arbitration agreement for defeating class certification, even where the agreement may not extend to all members of the class.
Key Takeaways: In Amazon.com Services, LLC v. Malloy, 141 Nev. Adv. Op. 50 (Oct. 30, 2025), the Nevada Supreme Court resolved an important certified question affecting wage-and-hour litigation statewide – it ruled that Nevada’s wage laws do not incorporate the federal Portal-to-Portal Act’s (“PPA”) broad exclusions for preliminary and postliminary activities. The ruling arose in the context of Amazon’s mandatory pre-shift COVID-19 testing policy during the pandemic, under which employees alleged unpaid time for required health screenings. Because Nevada has not adopted the PPA, the Court held that these federally recognized exemptions are not available to employers as a categorical defense under state law. However, the Nevada Legislature acted almost immediately, enacting SB 8 in a special session just weeks later to expressly import PPA style exemptions into the state law.
Case Background
Nevada Resident Dwight Malloy, a warehouse employee at an Amazon fulfillment center, filed a putative class action in the U.S. District Court for the District of Nevada alleging that Amazon violated NRS 608.016 by requiring workers to undergo mandatory health screenings without paying them for the time spent completing these protocols. He alleged that the mandatory COVID-19 testing before each shift added several minutes of unpaid time. Relying on Nevada’s broader state constitutional wage protections, Malloy brought a proposed class action seeking compensation for all employees subjected to this COVID-19 testing.
Amazon moved to dismiss, urging the district court to apply the Portal-to-Portal Act and treat the testing as non-compensable preliminary activity. Under the PPA, federal law excludes from the definition of compensable work time activities “preliminary to” or “postliminary to” an employee’s principal duties. Amazon argued that Nevada has historically mirrored the FLSA and that the PPA’s framework should follow. The district court disagreed, concluding that Nevada law had not incorporated the PPA and that mandatory testing time was compensable. Faced with competing interpretations of the statute and no controlling Nevada precedent, the federal court invoked Nevada Appellate Procedure Rule 5 and certified the central question to the Nevada Supreme Court. The Nevada Supreme Court accepted the certified question, setting the stage for a definitive interpretation of NRS 608.016.
The Nevada Supreme Court’s Ruling
Justice Ron Parraguirre authored the opinion of the Nevada Supreme Court and began by reframing the certified question to ensure a precise answer. The opinion was clear that the Supreme Court would decide only “whether Nevada’s wage-hour laws incorporate the exceptions to compensable ‘work’ that are laid out in the PPA.” Id. at 1-2. That focus on the exceptions drove the Supreme Court’s analysis.
Although Nevada’s wage laws often “mirror the FLSA,” the Supreme Court emphasized that its prior decisions have repeatedly refused to follow federal law where the texts diverge. Amazon.com Servs., LLC v. Malloy, 141 Nev. Adv. Op. 50, 2025 WL 3032215, at 2 (2025). This case, the Supreme Court explained, was one of those moments. The PPA provides a sweeping “catchall” set of exclusions for any activity deemed preliminary or postliminary. Id. at 4. Nevada’s statutes, by contrast, contain only “narrow and specific exceptions,” such as those enumerated in NRS 608.0195 and NRS 608.215. Id.
The Supreme Court stressed the structural mismatch: the PPA creates a broad outer boundary of non-compensable time, whereas Nevada’s Legislature chose not to include any analogous, general preliminary-activity exemption. The opinion makes the legislative intent point explicit: “The plain language of NRS Chapter 608 does not evince legislative intent to mirror the PPA, and the PPA’s broad exceptions do not correspond with the narrow and specific exceptions Nevada provides.” Id.
The Supreme Court also observed that the Legislature has amended Nevada’s wage-and-hour provisions “on multiple occasions” to align certain terms with federal law when it wished to do so—yet it never added PPA-style text or referred to preliminary or postliminary activities. Id. at *5. In other words, the Legislature knew how to adopt the PPA and simply chose not to.
Based on this textual and structural analysis, the Supreme Court answered the certified question “in the negative.” Id. Nevada has not incorporated the PPA’s exceptions, and employers cannot rely on them to avoid paying for required pre-shift tasks.
Notably, the Supreme Court did not resolve whether COVID testing is necessarily compensable in every scenario. Instead, the ruling’s effect is to eliminate the PPA as a categorical shield. Whether a specific pre-shift activity is compensable will depend on Nevada’s own definition of “work,” not federal carve-outs.
Implications for Employers
Although Malloy was quickly overtaken by legislative action, its interpretive significance cannot be overstated. For roughly two weeks, Malloy dramatically broadened the scope of compensable time under Nevada law by removing the federal preliminary/postliminary framework entirely. Employer groups immediately warned that the ruling could expose businesses to retroactive claims for any mandatory pre- or post-shift activity — health screenings, safety checks, clock-in delays, security gates, equipment pickups, or similar tasks.
In mid-November 2025, the Nevada Legislature enacted SB 8, expressly adding PPA-style exemptions into NRS Chapter 608 and applying them retroactively. The Governor signed it into law on November 20, and it took immediate effect. That legislation largely neutralized the backward-looking exposure that Malloy might have created. However, SB 8 itself carries a 2029 sunset, meaning Nevada may revisit the issue in future sessions. If SB 8 lapses or is modified, Malloy’s reasoning will again guide courts in interpreting Chapter 608.
Even with SB 8 in place, Malloy is a consequential decision for Nevada employers. It clarifies that Nevada’s wage statutes stand on their own terms and will not absorb federal exemptions absent explicit legislative action. Employers with Nevada operations should ensure that any required pre- or post-shift activity is properly categorized, measured, and recorded — and should keep a close eye on the evolving legislative environment as the 2029 sunset approaches.
By Gerald L. Maatman, Jr., Adam D. Brown, and Elizabeth G. Underwood
Duane Morris Takeaways: On November 25, 2025, in Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764 (D.D.C. Nov. 25, 2025), Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia dismissed an Amazon delivery driver’s lawsuit against the EEOC. The lawsuit alleged that the EEOC illegally halted investigations of disparate impact claims following an executive order from President Trump. The district court’s ruling is at least a short-term win for employers, demonstrating that a plaintiff who is not the subject of an EEOC action cannot easily resort to the federal courts to challenge the internal investigation and enforcement policies that caused the EEOC not to pursue theories of employer liability. The “win” is likely the first in a series of challenges to the EEOC’s stance on disparate impact litigation.
Case Background
The plaintiff in this case, Leah Cross, who worked as Amazon delivery driver for several months in 2022, was fired after she failed to satisfy Amazon’s delivery quota requirements. In May 2023, Cross filed a sex-based charge of discrimination against Amazon with the Colorado Civil Rights Division, asserting violations of Title VII and Colorado state law.
Cross contended that Amazon’s delivery quotas and resulting bathroom limitations had a disparate impact on female Amazon employees. Specifically, she alleged, Amazon enforced excessively high delivery quotas, which forced delivery drivers to forgo bathroom breaks. According to Cross, this disparately impacted female delivery drivers because of their differing personal needs relative to male drivers.
In January 2024, the EEOC’s Denver office began investigating the charge. But in April 2025, President Trump issued Executive Order 14281 titled “Restoring Equality of Opportunity and Meritocracy,” which instructed federal agencies to deprioritize enforcement of antidiscrimination laws based on disparate impact theories of liability. That Executive Order also specifically directed the EEOC to examine all pending investigations of such claims and take appropriate action consistent with the new enforcement priorities.
In September 2025, the EEOC issued a memorandum requiring staff to close all investigations of disparate impact claims, which included Cross’s claims. Thereafter, Cross filed a lawsuit against the EEOC, alleging that she “ha[d] been denied the benefit of a full investigation” by the Commission. Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764, at *3 (D.D.C. Nov. 25, 2025).
Cross claimed the EEOC’s memorandum violated § 706(2) of the Administrative Procedure Act, arguing that: (1) the Commission acted contrary to Title VII and the Age Discrimination in Employment Act by “selectively exclud[ing] categories of discrimination from the charge-investigation process;” (2) the Commission acted arbitrarily and capriciously in abruptly changing its policy; (3) the Commission’s memorandum constituted a substantive rule that was “in excess of statutory jurisdiction, authority, or limitations”; and (4) the Commission should have promulgated its memorandum through proper notice-and-comment rulemaking procedures. Id. Therefore, Cross sought a preliminary injunction requesting, among others, for her investigation to be reopened.
The Court’s Opinion
The Court held Cross failed to establish that she had standing to bring her claims and thus dismissed Cross’s claims for lack of subject-matter jurisdiction, without addressing them on the merits. To remedy Cross’s alleged injuries, the Court suggested that Cross could pursue a Title VII action directly against Amazon.
The Court determined that Cross did not show any judicially cognizable injury from the EEOC’s closure of her investigation. Moreover, the Court opined that “even if that were the kind of injury capable of judicial resolution, Cross has not shown that a favorable ruling by this Court would redress that injury.” Id. at *1.
The Court explained that “federal courts are ‘not the proper forum for resolving claims that the Executive branch’ should ‘bring more’ investigations and enforcement actions.” Id. at *4 (quoting United States v. Texas, 599 U.S. 670, 680 (2023)). Under applicable case law recognizing this principle, the Court held, because Cross was not the subject of an EEOC enforcement action, she lacked standing to challenge the agency’s investigation and enforcement decisions.
Implications For Companies
The Court’s ruling is a win for companies, confirming that federal courts currently are not willing to interfere with the EEOC’s internal investigation and enforcement policies regarding disparate impact claims. Even more broadly, the Court’s order reinforces the substantial deference federal courts grant the EEOC in its internal decision-making processes, which could cut in different directions depending on the enforcement priorities and policies of a particular executive branch or EEOC leadership regime.
Crucially, however, employers are not in the clear. Companies still should be proactive and continue to audit regularly their hiring and employment practices for potential disparate impact, which remains unlawful under both federal and state laws notwithstanding any vacillation in EEOC policy. While the EEOC may choose to deprioritize pursuing disparate impact claims, a charging party who receives a Notice of Right to Sue letter still can file a private lawsuit in reliance on longstanding precedent regarding disparate impact.
