Class Action Defense

June 18, 2026June 18, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 152: Key Arbitration Developments In Class Action Litigation

Duane Morris Takeaway: This week’s episode features Duane Morris partner Jerry Maatman and special counsel Eden Anderson and Rebecca Bjork with their discussion of significant arbitration developments in class actions.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Thank you, loyal blog readers and podcast listeners for joining us for our next episode of our weekly series and podcast called The Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today are my colleagues, Eden Anderson and Rebecca Bjork. Thank you so much for being here today on the podcast.

Eden Anderson: Great to be here, Jerry.

Rebecca Bjork: Thanks for having me, Jerry.

Jerry: Today, we wanted to discuss and explore trends and important rulings in the area of arbitration and class action litigation. Arbitration has been one of the areas where each year seems to bring new rulings and new gloss to the Federal Arbitration Act. We saw significant Supreme Court decisions this past year, and California courts also continue to reshape the relationship between arbitration and representative actions brought under the PAGA. Eden, when you look at the last 18 months, what stands out to you?

Eden: Yeah, Jerry, two things stand out. First, the Supreme Court continues to refine the scope of the Federal Arbitration Act’s transportation worker exemption. And second, California courts are still trying to answer some fundamental questions about how arbitration affects representative PAGA claims.

Jerry: Let’s start with the U.S. Supreme Court. The biggest arbitration decision so far this year is probably Flowers Foods vs. Brock. Rebecca, what was that case all about?

Rebecca: That case involved delivery drivers who distributed bakery products for a company named Flowers Foods, and the drivers argued that they fell within the transportation worker exemption in Section 1 of the Federal Arbitration Act and therefore could not be compelled to arbitrate under that act. The company argued that the drivers were making local deliveries only, and were not the kind of interstate transportation workers Congress had in mind when it created that exemption.

Jerry: And how did the Supreme Court come out on that question?

Rebecca: Oh, the Supreme Court disagreed. The court focused on the role that the workers played in the movement of goods through interstate commerce, and the key takeaway is that a worker doesn’t necessarily have to cross state lines personally to qualify for the exemption. If the worker is participating in a continuous interstate flow of goods, the exemption may apply even when the worker’s own deliveries occur entirely within one state.

Eden: And that is what makes the decision important. A lot of businesses have assumed that local delivery drivers were safely within the FAA’s scope. Flowers Foods suggests the analysis is more nuanced than that. Employers with delivery networks, logistic operations, warehouse-to-consumer distribution systems, or similar models should be evaluating whether portions of their workforce might now fit within the transportation worker exemption.

Rebecca: And what’s interesting is that this case, Flowers Foods isn’t really an outlier. It’s part of a broader trend at the Supreme Court. Over the last several years, the court has repeatedly focused on the actual work being performed, rather than formal job titles or industry labels, and Flowers Foods continues that trajectory.

Jerry: So, if that’s the federal story at the Supreme Court level, what about California in terms of the state law story and the significant litigation that occurs within the Golden State?

Eden: Well, as our listeners know, under the U.S. Supreme Court’s decision in Viking River, out in California, individual PAGA claims can be separated from a PAGA action and compelled to arbitration. But after Viking River, plaintiffs here began trying to disclaim their individual PAGA claims, trying to avoid arbitration. And courts out here have been grappling with whether that’s a permissible tactic and whether if an individual PAGA claim is found to be meritless or non-viable, whether the plaintiff can still pursue representative PAGA claims on behalf of other employees.

Jerry: One of the most significant cases from California in 2025 surely is the CRST Expedited v. Superior Court case, where the employee voluntarily dismissed the individual PAGA claim and sought to continue litigating only in a representative capacity. The employer argued that once the individual claim was gone, the representative claim also had to go as well, but the Court of Appeal disagreed.

Eden: That’s right, Jerry. Faced with supposed ambiguity in the statute, the Court of Appeal interpreted PAGA very broadly, and concluded that plaintiffs can abandon their individual PAGA claims, sidestep arbitration altogether, and pursue only representative PAGA claims in court.

Jerry: So, the bottom line is the CRST decision effectively gave support to the notion that a plaintiff’s lawyer can litigate a headless PAGA theory successfully in court.

Rebecca: It was a significant victory for the plaintiffs’ bar, yes, because it suggested that representative claims might survive even after an individual claim is dismissed.

Rebecca: But that’s actually not the end of the story, because just two days later, another California appellate court reached the opposite conclusion. And that case was Williams v. Alacrity Solutions Group, and the court held that a plaintiff needed a viable and timely individual claim in order to pursue representative PAGA penalties. And because the plaintiff’s own claim was time-barred, that court concluded he could not proceed with the representative action.

Eden: Yeah, and we saw a similar approach in Leeper vs. Shipt. The plaintiff there also tried to avoid arbitration by disclaiming individual relief, and the Court of Appeal there held that all PAGA actions necessarily must include an individual claim. In the court’s view, you can’t simply disclaim an individual PAGA claim and proceed only in court on behalf of others: your individual PAGA claim has to be asserted and is subject to arbitration.

Jerry: Well, it sure seems like these issues and principles are on a collision course for the California Supreme Court at this point.

Rebecca: That’s exactly right, and that’s why the California Supreme Court’s upcoming review is so important. The Court has agreed to address two fundamental questions: first, does every PAGA action necessarily contain both an individual and a representative component? And second, can a plaintiff choose to pursue only the representative portion of a PAGA claim?

Jerry: Well, these sound like technical parsings of the statute, but my sense is there are enormous practical consequences that can stem from the outcome of this question.

Eden: That’s correct, Jerry. If the California Supreme Court approves headless PAGA actions, plaintiffs who signed arbitration agreements, will be able to bypass arbitration and proceed, directly with representative claims in court. It could also occur, though it seems contrary to the statute, that the court could find that a plaintiff who lacks a viable PAGA claim may nonetheless still pursue representative PAGA claims on behalf of others. On the other hand, if the court rejects a ‘headless’ PAGA theory, then individual PAGA claims will continue to be arbitrated, and if a plaintiff loses, then their case should be over. Oral argument in Leeper was supposed to occur in May, but the parties had a conflict, and the California Supreme Court doesn’t hear arguments all summer long, so even if argument occurs in September, we may not see a decision on this issue until year’s end. So, we have a ways to go before we will know the outcome.

Jerry: The bottom line, then, it isn’t just whether or not an employer has an enforceable arbitration agreement, it’s whether, under the pertinent case law, a plaintiffs’ lawyer can structure PAGA claims in such a way to avoid or bypass arbitration altogether. Well, before we wrap up, what are the practical takeaways in your advice for employers, given this mosaic of rulings?

Rebecca: Well, first, review your arbitration agreements, and especially if your workforce includes drivers, delivery personnel, others involved in moving goods through interstate commerce, because Flowers Foods may affect assumptions that you have had in place for many, many years regarding your arbitration program.

Eden: And second, continue viewing arbitration as an important tool, but not necessarily one that can be used in all PAGA cases.

Rebecca: And third, stay current in the law. This is a fast-moving area, and it’s an area where a single appellate decision can material change litigation strategy.

Jerry: Well, that’s a great summary from both of you. Eden and Rebecca, thanks so much for joining us today on The Class Action Weekly Wire, and thanks to all our loyal listeners for tuning in. We’ll continue to track developments on the arbitration front and it’ll culminate in Chapter 4 of the Duane Morris Class Action Review for 2027 to be published during the first week of January next year. Well, thanks so much for being here, and looking forward to being with you next time.

Eden: Thanks, Jerry, and thanks to the listeners.

Rebecca: Thanks for having us!

June 17, 2026June 17, 2026 by Gerald L. Maatman, Jr.

The Duane Morris Class Action Defense Blog’s 700th Post!

By Gerald L. Maatman, Jr.

Duane Morris Takeaways: Since its inception in September of 2022, the Duane Morris Class Action Defense blog has posted 700 times! There have been over 100,000 views to blog posts, with thousands of people reading about class action litigation developments. There are so many highlights from the last 700 posts, but we wanted to provide just a few for you here. Click on the links below to see all the hot trends in class action litigation.

We launched the third edition of the Duane Morris Class Action Review, which is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting Corporate America. The Review has been prominently featured in the media and is a must-have for all human resources professionals and corporate counsel.

We also published mini-books focused on specialized areas of law (including ERISA, Products Liability & Mass Torts, FCRA, Discrimination, Consumer Fraud, Antitrust, TCPA, Data Breach and Privacy, Wage & Hour and PAGA, and EEOC and Government-Enforcement), various unique industries (including Higher Education, Insurance, Energy, Oil, & Gas, Transportation, Automotive, & Logistics, Healthcare, Hospitality, and Digital Assets & Blockchain), and state-specific laws in class action litigation and on EEOC-Initiated litigation.

Every week on the blog, we feature attorneys and experts discussing the latest class action developments and rulings on the Class Action Weekly Wire Podcast. Tune in each week for a new episode! Some of the most popular podcasts were featuring the dismissal of a class action in a data breach area, a discussion on the California’s Supreme Court’s win for employers, and the overview of class action litigation in the digital assets and blockchain sector.

Click here to read our most viewed blog post of 2026, entitled “AI Hallucinated Case Citations Prompt Sanctions And Delay Class Action Settlement.” Over 2,000 people read this post! Other top reads included our analysis of a 2024 ruling in Illinois dismissing class action privacy claims, an overview of the American Tort Reform Association’s picks for the top Judicial Hellholes in 2025, and our always sought-after annual blog post covering the developments in EEOC FY Filings.

Thank you, loyal followers, for making the Class Action Defense blog your stop for class action litigation related information, trends, and analysis. We truly appreciate it! Please keep coming back, we promise to keep the content fresh and informative!

June 11, 2026June 11, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 151: Key Appellate Decisions In Class Action Litigation

Duane Morris Takeaway: This week’s episode features Duane Morris partner Jerry Maatman, special counsel Tyler Zmick, and associate Christian Palacios with their discussion of significant appellate rulings in class actions.

Episode Transcript

Jerry Maatman: Thank you for being here again, loyal listeners, for the next episode of the Duane Morris Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my colleagues, Tyler and Christian. Thanks so much for being on the podcast.

Tyler Zmick: Thank you for having me, Jerry.

Christian Palacios: Glad to be here, Jerry.

Jerry: Today, we wanted to discuss trends and important rulings in the area of appeals in class action litigation. Parties have limited options when it comes to seeking direct or interlocutory appellate review of class certification decisions and other class-like rulings. What are the typical ways in which parties can move for interlocutory appeal in this space?

Tyler: So, the primary mechanism is Rule 23(f) of the Federal Rules of Civil Procedure, and under that rule, a party can ask the federal appellate court for permission to appeal within 14 days of the district court issuing an order that either grants or denies class certification. Parties can also seek interlocutory appellate review under Federal Statute 28 U.S.C. § 1292(b), and Section 1292(b) appeals are especially helpful in complex cases to correct early errors, questions of law that, if put off until after final judgment, might otherwise require parties to re-do years of extensive litigation.

Jerry: What’s the primary practical difference between these two options?

Christian: So, unlike interlocutory appeals under 28 U.S.C. §1292(b), Rule 23(f) doesn’t require the District Court to certify an issue for appeal. Moreover, Rule 23(f) does not include the potentially limiting requirements of Section 1292(b), under which the District Court can certify an issue for appeal only where an order “involve[s] a controlling question of law as to which there is substantial ground for difference of opinion” and where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

Jerry: At the end of the day, what sort of analytics underlie the success and failure of these types of petitions, typically, at the Court of Appeals level?

Tyler: So that’s a great question, and the data shows that appellate courts deny approximately 75% of Rule 23(f) petitions to appeal class certification decisions, and most of those denials come by way of summary orders that do not provide any reasoning. That said, in approximately 10% of cases, the appellate court issues an opinion explaining its reasons for either granting or denying the Rule 23(f) petition. And while reasoned decisions are somewhat rare in this space, appellate courts nonetheless issued several noteworthy decisions in 2025 regarding Rule 23(f) appeals and Section 1292(b) appeals.

Jerry: Chapter 3 of the Duane Morris Class Action Review summarizes and analyzes those key appellate rulings. Do you have some examples of some significant rulings where petitions for appeal were granted over the last 12 months?

Christian: Definitely. In Konya, et al. v. Lockheed Martin Corp., the plaintiffs, four retirees, filed a class action against the defendant, alleging that the company violated the Employee Retirement Income Security Act, or ERISA, when it transferred responsibility for their pensions to a private annuity provider, named Athene Annuity & Life Assurance Company of New York, through a pension risk transfer. The plaintiffs claimed that Athene was a riskier and less secure choice than traditional providers and that the defendant prioritized cost savings over the plaintiffs’ financial security in retirement. The defendant then moved to dismiss for lack of standing, under the U.S. Supreme Court’s decision, Thole, et al. v. U.S. Bank, 140 S.Ct. 1615 (2020), arguing that because the plaintiffs had not yet lost any benefits, they were not able to bring lost benefits claims. The court rejected this argument, finding that the retirees had alleged enough potential harm to proceed. That same day, a district court in Washington, D.C., ruled the opposite way in a nearly identical case involving Athene. Faced with these conflicting rulings and mounting litigation nationwide, the defendant filed a motion for an interlocutory appeal. The court granted the motion, finding that the question of standing was a purely legal issue that could potentially resolve or significantly simplify the case. Noting the conflicting court decisions and the broader implications for similar lawsuits, the court granted defendant’s motion for an interlocutory appeal and stayed the case while the Fourth Circuit considers the matter.

Jerry: That’s a very interesting outcome, especially in-so-far as the rationale of the Court of Appeals was, elucidated to give the reader of the opinion a sense of what motivated the Court of Appeals to grant the petition. So, we’ll see what happens and how the Fourth Circuit rules. Any other key rulings in the appeal space to share with our listeners?

Tyler: Yes, I think one noteworthy decision came from the Northern District of California in 2025 in a case called Mullins v. International Brotherhood of Teamsters, and the District Court in that case granted a request by the defendants to certify an interlocutory appeal under Section 1292(b). And the issue in that case was whether the Federal Railway Labor Act, or RLA, gives individual employees the right to pursue grievances independently, even when their union decides not to do so. Previously, the district court had ruled in favor of the plaintiffs and held that individual employees can pursue grievances even when the union does not do so. The defendants argued that this ruling was appropriate for interlocutory appeal because it involved a controlling legal question on which there was substantial disagreement among courts, and that resolving it now could advance the case. And the district court agreed, noting that other courts, including other federal appellate courts, have issued conflicted opinions on whether the RLA provides individual grievance rights. Therefore, because the issue was a purely legal issue and central to the one remaining claim, the District Court determined that it met the standard for interlocutory appeal under Section 1292(b). Therefore, the District Court granted the motion and certified the appeal, which the Ninth Circuit actually later accepted, and that appeal is still pending before the appellate court.

Jerry: Well, those are two great examples, and one would anticipate that we’ll see, during the next 12 months, a continued pattern by courts of appeals in terms of this kind of patchwork quilt of data analytics in terms of acceptance or denial or reasons why an appeal might be ripe to be decided by a court of appeals.

Well, thanks so much for all this great analysis, Christian and Tyler, and thank you for being here today as our guests on the Class Action Weekly Wire. Listeners, thanks so much for tuning in.

Tyler: Thank you for having me, Jerry, and thank you, listeners.

Christian: Thanks, everyone. Happy to be a part of the podcast.

June 10, 2026June 10, 2026 by Gerald L. Maatman, Jr.

Seventh Circuit Affirms Summary Judgment For Tortilla Manufacturer El Milagro In Sexual Harassment Suit

By Gerald L. Maatman, Jr., Jennifer A. Riley, Gregory Tsonis, and George J. Schaller

Duane Morris Takeaways: On May 27, 2026, in Sanchez, v. El Milagro, Inc., 2026 U.S. App. LEXIS 14984 (7th Cir. May 26, 2026), the Seventh Circuit issued an opinion that affirmed a district court’s decision granting summary judgment in favor of tortilla manufacturer El Milagro, Inc. (“El Milagro”) for claims of sexual harassment in the workplace in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Illinois Human Rights Act (“IHRA”).

The opinion fully vindicated the Company’s defenses, and clarifies that a prompt and thorough investigation coupled with appropriate action to bring harassment to an end are crucial to avoid liability under sexual harassment law.

Background

In 2022, Plaintiff Alma Sanchez filed a Class Action Complaint against her employer, El Milagro, Inc. (“El Milagro”), a tortilla manufacturer and distributor of tortilla products, alleging a sexually hostile work environment in violation of the IHRA and, subsequently, Title VII.

Plaintiff alleged she joined El Milagro in July 2019. Plaintiff claimed that in 2020, co-worker Francisco Gutierrez sexually harassed her by “inappropriately touching her three times,” although the Seventh Circuit’s opinion noted that Plaintiff’s version of events changed in numerous ways over time. Id.

According to the subsequent statement to Human Resources that Plaintiff submitted after the third alleged incident, Gutierrez “inappropriately touched [Plaintiff] first in October or November 2019, then in March 2020, and finally in August 2020.” Id. *4-5. Her Complaint, however, alleged that “Gutierrez touched her first in May or June 2020, then in July 2020, and finally in August 2020.” Id. *5.

As to her first alleged incident of harassment, Plaintiff’s Complaint asserted that Gutierrez “intentionally ‘rubbed his genitals’ against her buttocks as he passed her on the production line and then continued to walk away.” Id. In her deposition, however, Plaintiff testified that “she believe[d] Gutierrez purposefully touched her because ‘there were many ways for him to pass through without touching [her],” that he did not “touch her for long because ‘he made it look like he was passing by,’” and when she felt the contact and turned around “[h]e had already passed.” Id. In her later statement to Human Resources, Plaintiff wrote that Gutierrez “said sorry” but at her deposition, she testified that Gutierrez “turned around and stare[d] at me like watching and saying ‘oops.’” Id. *5-6.

Plaintiff alleged she verbally reported this incident two hours later to Supervisor Arturo Brito, which Brito denied. Id. *6. In her HR statement, Plaintiff “stated that although she mentioned this incident to Brito, she did not tell him Gutierrez’s name.” At her deposition, however, Plaintiff claimed that “she ‘specifically told Brito that Mr. Gutierrez had rubbed his genitals on my buttocks’” but, when asked outright, she “agreed that she did not share Gutierrez’s name with [the supervisor] when she reported the first incident.” Id. No Human Resources report was made about this incident at the time.

Plaintiff also asserted Gutierrez “sexually harassed her for the second time in July 2020” and claimed that he “groped her buttock with his hand.” Id. *6-7. Plaintiff contradicted herself about whether and when she reported this incident. In her HR statement, she wrote that she “could not have reported the incident because the factory had been permanently shut down because of the pandemic, but later claimed in the lawsuit that she did report the harassment to Brito the day after it happened. Id. *7. Plaintiff alleged that she informed Brito about this incident, but no complaint about this alleged incident was sent to El Milagro’s Human Resources department. Id.

The third incident occurred on August 29, 2020, and Plaintiff contended that “Gutierrez touched her buttocks for ‘a short time,’ or ‘a few seconds’ while she was stooping down to put down boxes that she was holding.” Id. In her written statement to HR, Plaintiff claimed that “Gutierrez touched her buttocks with one hand” but asserted during the lawsuit that “Gutierrez groped her with both hands when she bent over to put down a box that she was carrying.” Id.

After reporting the third incident to Brito, Plaintiff submitted a written statement to Human Resources describing the three incidents. Gutierrez’s statement claimed he accidentally touched Plaintiff while packing tortillas and apologized. Id. Plaintiff later testified that she “had not seen anyone else experience sexually harassing conduct at any time during her employment at El Milagro.” Id. Plaintiff also alleged subsequent verbal harassment by other coworkers, but Plaintiff did not tell Brito or El Milagro’s HR the names of those individuals. Id. *9.

The district court granted El Milagro summary judgment on Plaintiff’s claims. It also ruled that Plaintiffs’ class action claims could not be certified. Plaintiff appealed the district court’s decision on her individual claim to the Seventh Circuit.

The Seventh Circuit’s Opinion

The Seventh Circuit, in an opinion written by Judge Kenneth F. Ripple, affirmed the district court’s decision granting summary judgment in favor of El Milagro and fully vindicated its position.

As to the controlling legal standard, the Seventh Circuit first concluded that while Title VII and the IHRA do not contain identical language, “both this court and Illinois state courts consistently state that the analytical standards are the same.” Id. *9. Thus, “[t]o constitute actionable sexual harassment, the activity ‘must be sufficiently severe or pervasive to alter the conditions of the [the victim’s] employment and create an abusive working environment.” Id. *10. While noting that “physical acts are considered ‘more severe than harassing comments alone,’” the Court also noted that “physical harassment lies along a continuum just as verbal harassment does.” Id. *12.

Turning to the merits, the Seventh Circuit noted an employer is liable under the IHRA and Title VII “only if it was negligent in controlling working conditions.” To prove such negligence, the Seventh Circuit explained Plaintiff must establish two points: (1) that El Milagro had “notice or knowledge of the harassment,” and (2) that El Milagro “did not take ‘prompt and appropriate corrective action reasonably likely to prevent harassment from recurring.” Id. *16.

Assuming that Plaintiff reported the first two incidents to Brito, as she claimed, the Seventh Circuit concluded that Plaintiff could not establish El Milagro’s knowledge of the first two incidents of alleged harassment. Based on the record evidence, the Court reasoned that “what she told Brito led him to believe that she was complaining of accidental touching that happened because the production lines on which she and Gutierrez worked had close quarters.” Id. at *21. As a result, the Seventh Circuit concluded that “[w]e do not believe that a reasonable jury could conclude from [Plaintiff’s] deposition testimony, or any other evidence in the record related to her reporting of the first two incidents, that she gave Brito ‘enough information to make a reasonable employer think that there was some probability that she was being sexually harassed.’” Id. *20-21.

As to the third incident, all three judges agreed that investigation and corrective measures taken by El Milagro’s Human Resources department were sufficient. The Seventh Circuit noted that “[a]n HR employee interviewed [Plaintiff] and Gutierrez separately,” “HR concluded that the events described by [Plaintiff] could not be substantiated,” and that El Milagro “provided [Plaintiff] with a letter, dated September 16, informing her that the case was closed and that it had told Gutierrez, in a ‘call of attention’ letter, to immediately change his behavior toward her.” Id. *21-22. The Seventh Circuit also determined that “[a]lthough El Milagro did not interview any witnesses, [Plaintiff] did not identify any.” Id. *22.

Thus, the Seventh Circuit concluded that the “prompt investigation” was “the hallmark of a reasonable corrective action” (id.) and that “El Milagro’s investigation shows that it ‘took the harassment seriously and took appropriate steps to bring the harassment to an end.’ . . . [i]t had in place a viable and appropriate mechanism for reporting the misbehavior.” Id. A jury could not reasonably conclude, the Seventh Circuit held, that “El Milagro was negligent in fulfilling its responsibilities in responding to the situation.” Id.

Finally, as to alleged verbal harassment that occurred after HR investigated, the Seventh Circuit concluded that Plaintiff “did not report to anyone the names of the people who made the harassing comments that she overheard after the investigation concluded so El Milagro could not investigate them.” Id.

Accordingly, the Seventh Circuit affirmed the judgment of the district court.

Implications For Employers

The Seventh Circuit’s opinion clarifies what constitutes proper notice in alleged incidents of sexual harassment and reasonable corrective measures taken when an employer is properly on notice, including prompt investigations to bring alleged harassment to an end.

Employers should evaluate their sexual harassment policies and practices to ensure that reporting mechanisms, documentation, and investigation process are sound and that reports of harassment are communicated promptly to those responsible for investigating them. A thorough investigation and quick implementation of reasonable corrective measures can often insulate employers from liability under either Title VII or the IHRA.

June 5, 2026June 5, 2026 by Gerald L. Maatman, Jr.

President Trump’s New National Enforcement Program For The EEOC And What It Means For Employers

By Gerald L. Maatman, Jr., George J. Schaller, and Ryan T. Garippo

Duane Morris Takeaways: On June 4, 2026, the U.S. Equal Employment Opportunity Commission (the “EEOC”) announced its National Enforcement Plan (the “NEP”) for fiscal years 2025 – 2029. The NEP reflects the EEOC’s new priorities under President Donald Trump and formally rescinds the agency’s strategic objections during President Joseph Biden’s administration.

Employers should take note of this development as it is clear that the NEP signals a forthcoming crackdown on: (1) employers’ diversity, equity, and inclusion (“DEI”) programs; (2) instances of “anti-American” bias; (3) efforts to limit “single-sex spaces” for transgender individuals; and (4) failures to provide religious accommodations.

The EEOC’s National Enforcement Plan

As readers of this blog will know, the EEOC looks and acts differently under President Trump than it did under President Biden. President Biden’s strategic priorities, which we wrote about here, here, and here, largely focused on discrimination resulting from the use of artificial intelligence, preventing systemic harassment, enforcing equal pay obligations, and protecting historically marginalized groups. President Trump’s EEOC is a lot different.

On June 4, 2026, the EEOC’s Chair Andrea Lucas (R) and Commissioner Brittany Panuccio (R) rolled out the agency’s new NEP over the objection of Commissioner Kalpana Kotagal (D). The NEP describes the agency’s areas of strategic focus because “it is not feasible for the [EEOC] to devote the same amount of resources to each charge.” (NEP at 2.) Thus, “the agency must continue to be strategic about the matters it prioritizes to maximize the agency’s impact.” (Id.) To that end, the EEOC identified four major areas where it intends to be more proactive in its enforcement efforts, each of which is discussed more fully below.

First, the EEOC stated an explicit intention to attempt to “[r]emedy[] DEI-related race and sex discrimination.” (Id. at 6.) In particular, the EEOC cited the U.S. Supreme Court’s recent decisions in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024), and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) as the basis for its decision. As a result, we expect to see continued efforts from President Trump’s administration to crackdown on DEI programs both in the workplace and in higher education.

Second, the EEOC states that it plans to prosecute claims with an intent to “protect[] American workers from anti-American national origin discrimination.” (NEP at 6.) This prosecutorial decision tracks with last year’s first-of-its-kind settlement against LeoPalace Resort, which we blogged about here, where a group of American workers alleged that they were subject to less favorable treatment than their Japanese colleagues. We can also expect these enforcement actions to continue throughout the second Trump administration.

Third, the EEOC intends to ensure access for women to “single-sex spaces at work” due to the “binary nature of sex.” (Id.) This objective continues to signal a rollback of President Biden’s efforts to enforce protections in favor of transgender workers, and tracks with the agency’s decision last year to dismiss all lawsuits seeking to enforce such protections. As readers will recall, we blogged about the decision to dismiss these lawsuits here because they were purportedly based on “gender ideology extremism.” This area is one where there is the potential for a significant uptick in EEOC enforcement actions and investigations.

Fourth, the EEOC stated its continued commitment to “religious liberty rights” including the right “to receive religious accommodations and be free from religious discrimination, harassment, and related retaliation.” (Id.) As we explained here, however, employers can expect certain types of religious bias to be policed more heavily than others. In accordance with President Trump’s policy platform, EEOC Chair Lucas has explicitly cited “antisemitism” as the basis for the current emphasis on religious discrimination. This enforcement priority tracks with recent appellate court decisions, such as EEOC v. Center One, LLC, No. 22-2943, 2024 WL 379956, at *4 (3d Cir. Feb. 1, 2024), where the Third Circuit held that forcing an employer to work on Yom Kippur and Rosh Hashanah could create “’intolerable’ conditions of discrimination.” Thus, the EEOC is signaling its intent to continue to build on precedent like Center One in the religious discrimination space.

Implications For Employers

Employers should take note of these enforcement priorities as it previews the types of cases that the EEOC intends to pursue both through investigations and litigation. Thus, if they have not already, corporate counsel should consider whether any revisions are necessary to their organization’s DEI programs as well as to any policies concerning differential treatment provided based on national origin, sex, or religion.

Further, if an organization receives notice of an EEOC charge or subpoena – particularly one targeting a pattern, practice, or policy based on the above-mentioned objectives – it should take such allegations extremely seriously and contact experienced counsel to help them navigate the process.

June 5, 2026June 5, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Denies EEOC Application To Enforce Administrative Subpoenas Against Psychological Testing Firm In Discrimination Investigation

By Gerald L. Maatman, Jr., Tiffany Alberty, and Brett Bohan

Duane Morris Takeaways: On June 3, 2026, in Equal Employment Opportunity Commission v. Psychological Dimensions, No. 1:26-MC-00072 (D. Colo. June 3, 2026), Senior Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado denied the EEOC’s application for an order to show cause as to why two administrative subpoenas served on Psychological Dimensions should not be enforced. The EEOC sought information regarding a pre-offer psychological assessment administered to job applicants for the Arapahoe County Sheriff’s Office. The Court concluded that the subpoenas sought information that had nothing to do with the discrimination allegedly suffered by the charging party and declined to hold that the EEOC’s investigative authority is unlimited.

Courts typically give wide berth to the EEOC with its administrative, pre-lawsuit subpoenas, but this ruling illustrates that courts may impose meaningful limits on the EEOC’s subpoena power where the information sought bears no connection to the harm alleged by the individual claimant.

Case Background

On June 10, 2020, Jessica Roe applied for a position as a Public Information Liaison at the Arapahoe County Sheriff’s Office (“ACSO”). (ECF 20 at 1) The application process included both pre-offer and post-offer phases. During the pre-offer phase, Ms. Roe completed a 430-plus question psychological examination, sometimes referred to as a “Job Suitability Assessment,” administered by Psychological Dimensions, a contractor to the ACSO. (Id.) Ms. Roe also took a polygraph test, provided writing samples, and participated in interviews. (Id. at 2) Following these steps, Ms. Roe was informed she was one of three finalists, had additional interviews, and was offered the job contingent upon further medical, psychological, and background investigation. (Id.)

In the post-offer phase, Ms. Roe completed another extensive psychological examination and met with the Chief Psychologist of Psychological Dimensions. (Id.)During that meeting, she disclosed a mental health diagnosis, a mental health provider, and additional information regarding prescriptions she had been given. (Id.) She was also asked to release information for the diagnosing doctors. (Id.) However, when Psychological Dimensions attempted to verify the information, the diagnosing provider could not confirm Ms. Roe had been a patient or provide records to Psychological Dimensions due to its document retention policy, so the psychologist was unable to “pass” her. (Id.) On September 14, 2020, the ACSO rescinded the job offer because Ms. Roe did not pass the post-offer psychological exam. (Id.)

On June 4, 2021, Ms. Roe filed a Charge of Discrimination with the EEOC, alleging retaliation and discrimination based on sex in violation of Title VII and disability in violation of the ADA. (Id. at 3) Nearly three years later, on March 20, 2024, Ms. Roe filed an Amended Charge to expand the allegations to include discrimination based on race, color, sex, religion, national origin, retaliation, age, disability, genetic information, and pregnancy, invoking additional federal statutes. (Id.)

On August 28, 2025, as part of its investigation, the EEOC served two administrative subpoenas on Psychological Dimensions — one pursuant to the ADEA and one pursuant to the ADA and Title VII. (Id.) The subpoenas required Psychological Dimensions to produce the Job Suitability Assessments and related communications for all individuals who answered affirmatively that they had experienced workplace sexual harassment, filed formal complaints against an employer, been involved in lawsuits, or appeared in legal proceedings. (Id. at 4)

On September 10, 2025, Psychological Dimensions objected to the subpoenas, arguing that the information was not relevant, that compliance would be unduly burdensome (requiring at least 1,500 hours), that the request infringed on the privacy and HIPAA rights of non-parties, and that the request sought proprietary trade secrets. (Id.) The parties were unable to resolve the dispute, and the EEOC filed an application for an order to show cause. (Id. at 5)

The Court’s Order

The Court denied the EEOC’s application on procedural and substantive grounds.

As an initial matter, the EEOC argued that Psychological Dimensions’ objections were both procedurally defective and untimely. (Id.) The EEOC noted that the September 10, 2025, objection letter identified only the ADEA subpoena, and there is no administrative procedure for objecting to ADEA subpoenas. (Id.) The EEOC also pointed out that objections to subpoenas issued pursuant to the ADA or Title VII are due within five days after service, making Psychological Dimensions’ objections untimely. (Id. at 5-6) The Court acknowledged the untimeliness — the objections were filed thirteen days after service — but declined to treat this delay as dispositive. (Id.)

Turning to the substance of the subpoenas, the Court identified what it characterized as a “bigger problem.” (Id. at 6) The Court recognized that the four questions in the Job Suitability Assessment potentially punished applicants for exercising their rights under discrimination laws, and the subpoenas sought information to determine whether persons who answered “yes” to those questions were consistently denied employment at the ACSO. (Id. at 7) However, that information had “no application to the charging party, Ms. Roe.” (Id.) The Court’s rationale was that it was undisputed that Ms. Roe answered “no” to all four questions, was found suitable for the position, made the short list of three finalists, and was offered the job. (Id.) The reasons her offer was rescinded were found in the post-offer evaluation, not in the pre-offer Job Suitability Assessment.

Ultimately, the Court determined it was “unwilling to hold that the EEOC’s authority to investigate discrimination in the workplace is unlimited, or that an individual’s claim that she lost a job opportunity due to discrimination opens the door to compelling a third party to produce information that has nothing to do with the discrimination allegedly suffered by the claimant.” (Id. at 7-8) For this reason, the Court denied the EEOC’s application for an order to show cause on its two administrative subpoenas. (Id. at 8)

Implications For Employers

The Court’s decision in Psychological Dimensions is a significant ruling for employers and third-party contractors who face EEOC subpoenas during the investigation of discrimination charges. The decision signals that courts may impose meaningful limits on the scope of the EEOC’s investigative subpoena power where the information sought lacks a nexus to the actual harm alleged by the charging party.

This case demonstrates that, although the EEOC’s subpoena power is broad, it is not boundless. Where the EEOC seeks to expand an investigation beyond the facts that are relevant to the charging party’s claims, courts may be willing to deny enforcement of those subpoenas. Employers who receive subpoenas that they believe extend beyond the scope of the underlying charge should carefully consider whether the information sought bears a meaningful connection to the claimant’s allegations and should be prepared to articulate that disconnect to a court.

June 5, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 150: Key Class Action Trends In The Higher Education Sector

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman, Jennifer Riley, Katherine Brodie, and Tony Guida with their discussion of Duane Morris’ Higher Education Class Action Review, highlighting several trends and developments shaping class action litigation in this sector.

Episode Transcript

Jerry Maatman: Welcome to our listeners. Thank you for being here today for our podcast, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and today is a very, very special edition of the show. We are celebrating episode number 150 of our podcast series. We appreciate the support of our listeners and guest speakers that have tuned in and joined us every week since 2023.

Joining me today is my co-host and colleague, Jennifer Riley, a partner and vice chair of the Class Action Defense Team, and our special guests today are two team leads from the Duane Morris Education Industry Group, which this morning was recognized by Chambers as one of the top practices in that space throughout the United States. We’re very proud of our industry group lawyers. Katherine Brodie, a partner in our Washington, D.C. office, and Tony Guida, a partner in our San Diego and Los Angeles offices, are joining us today. Thanks so much, everyone, for being here.

Jennifer Riley: It’s great to be here for our 150th episode, Jerry. Thanks for having me.

Katherine Brodie: It’s great to be here, thanks for having me.

Tony Guida: Yeah, thanks, Jerry. Thanks for having us.

Jerry: Today on the podcast, we’re discussing our newly released Higher Education Class Action Review, which is available on our Duane Morris Class Action Defense Blog. Jen, can you tell our listeners a bit about this new offering?

Jennifer: Absolutely, Jerry. So, this is the final e-book in our series of industry-focused class action references that we debuted earlier in 2026. This publication analyzes the key class action rulings and developments in 2025 throughout the higher education sector. It provides an outlook on trends impacting this particular industry for 2026 and beyond. So, we really hope that higher education institutions will benefit this resource in their efforts to comply with these ever-evolving laws and legal standards.

Jerry: Let’s start with the big picture and the value-add attributes of this publication. Why focus our reference on class actions in higher education?

Katherine: Thanks, Jerry. Well, we’ve been really looking forward to this publication because class actions in higher education are highly relevant. Basically, as you know well, class actions are a tool, a very influential procedural tool in the American legal system. And that really changed the stakes of litigation dramatically – they changed the cost, the risk analysis, damages can increase exponentially. Once a class action is formed and asserted, it drives litigation strategies, settlement pressures, institutional decision making. So, I think this is going to be an incredible resource for general counsel offices, so they can understand trends and identify, you know, where there might be risk exposure for them.

Jerry: So, the bottom line is simply the possibility of class action, exposure, and litigation changes the environment in which educational institutes operate.

Katherine: Absolutely. It’s already happening. There have been some, you know, major class action attempts on different theories against institutions of higher education. There’s been an uptick in lawsuit filings. And there’s been some successful class actions where large settlements have, you know, cost a lot of money to institutions, and I think they need to pay attention. So, this, again, is going to be an incredible resource for general counsels and their staff.

Jerry: When one drills down into the analytics, what sorts of cases or varieties of class actions are schools and universities dealing with these days?

Tony: The scope is incredibly broad now. Earlier generations of higher education litigation tended to focus on isolated cases like student claims for failure to deliver promised educational services, admissions misrepresentations claims, or employment discrimination claims. As you described in the e-book, today institutions face a myriad of class actions involving tuition and fee refunds both partial and full, antitrust allegations, Title IX compliance, financial aid practices, disability accommodations, labor and employment disputes, consumer protection laws, student privacy concerns, data breaches, and even litigation connected with emerging educational technologies.

Jerry: And certainly, I would think the COVID pandemic and its impact on the educational system really accelerated the pace of plaintiff’s lawyers focusing on institutions of higher education as targets in the class action space.

Tony: Yeah, absolutely. The pandemic created an unprecedented wave of litigation. Courts suddenly had to examine questions about remote learning and how that impacted their contractual obligations of institutions, student tuition refunds, the fiduciary duties of the governing boards, and overall institutional decision-making during a global emergency. Universities were forced into legal territory that, in many respects, had never been tested at that scale before.

Jennifer: And I would like to add, one thing that our publication highlights is that this isn’t just about more lawsuits, it’s also about a changing relationship between universities and their stakeholders.

Katherine: Yeah, and I’m really glad that you picked up on that point and that trend because we’re seeing it not just with class action lawsuits, but in higher education in general. I think, you know, traditionally, folks, the public didn’t really see students as customers, per se, right, of institutions of higher education, but there’s a lot of questions being asked now about the value of higher education, and the product being delivered, so to speak, the services being delivered to students. So, it’s created a situation where I think plaintiffs’ attorneys see institutions as uniquely situated for class action litigation. Universities have large populations, expansive data sets, lots of assets in some cases, policies that cover thousands or millions of people potentially, and they’re a perfect environment for class claims, and I think that the relationship has changed, and it’s now very much in the sights of consumer advocates.

Jennifer: Right, right, absolutely. And as you know, universities aren’t typical corporations.

Katherine: Right, we deal with that every single day. Higher education is very diverse. You’ve got nonprofits, you’ve got public institutions, you’ve got for-profits, you’ve got, you know, public institutions with their constitutional obligations, you’ve got nonprofit missions, and courts have to parse that out, right? These are unique institutions in our system, the American system. There’s, you know, oversight and, that is very unique. So, courts have struggled to reconcile, sort of, the obligations unique institutions have with modern consumer protection theories, and you’ve seen that play out in some of the COVID litigation. But they’re becoming more astute at it, and I think trying to parse their way through the expectations consumers should have versus the obligations and independence that institutions should have.

Jennifer: Can you give our listeners some additional examples of how that complexity plays out?

Katherine: Right. So, in a commercial litigation situation, the contract dispute is going to be the four corners of the contract and pretty clear, right? In higher education, there’s not necessarily a contract per se, so courts have looked to what is the contract, what is the promise, and the promise being made by the institution, so they’ve looked at statements in student handbooks, whether catalogs create enforceable promises, there may be enrollment agreements involved, there may be public statements on website, we saw that during COVID about the expectation of the institution being open. So, and then there’s academic judgment issues, like when does academic judgment cross into actionable negligence or misconduct? And then damages becomes very complicated, because how does a court assess the value of education itself? And that’s really tripped up a lot of courts in the past.

Jerry: Those are fascinating issues, because it sounds like class actions against educational institutions sit at the intersection of law and policy and institutional identity.

Tony: That’s exactly right, Jerry. And as you know, our practice is unique, in that we, in addition to being lawyers, have a policy team, and we actively lobby at the federal level. So, we follow these issues, and it’s really the purpose of the Higher Education Class Action Review, as well. That publication looks at aggregate litigation involving colleges and universities and school districts from both the analytical and practical perspectives.

Jerry: I know that the publication is downloadable on phones, and it comes out as an e-book. What can readers expect from this desk reference?

Jennifer: Well, the review examines the procedural frameworks governing class certification, as well as the substantive legal theories that are most commonly asserted against educational institutions, the strategic considerations that shape litigation outcomes, and all of those things. The goal really is to give readers an analysis and some practical insights into how these cases are evolving.

Tony: And it’s really intended for, you know, general counsel at colleges and universities, administrators, litigators, risk professionals, academics, really anybody trying to understand where higher education litigation is headed, and how class action exposure is reshaping institutional decision making and risk.

Jerry: As we wrap up, what do you think is the biggest takeaway for readers that you want them to walk away from in terms of having the publication on their bookshelf?

Tony: I think that higher education litigation is no longer niche or episodic. It’s becoming a defining operation on a strategic issue for institutions nationwide. Understanding class actions now is essential for anyone involved in higher education leadership or compliance. The consequences of these cases vary significantly depending on the institution’s size, resources, and risk profile. Some institutions may face threats that go to the core of their operations. Well, larger institutions may be better positioned to defend the claims but face heightened reputational and stakeholder risks.

Jerry: Well, well said, and great summary. Jen, Tony, and Katherine, thanks so much for joining us on our 150th podcast, and for discussing the Duane Morris Higher Education Class Action Review – 2026.

Jennifer: Listeners, remember to bookmark or download your free copy from the Class Action Defense Blog. Thanks, everybody, for tuning in.

Katherine: Thanks, and congratulations!

Tony: Yes, and thank you, listeners.

June 4, 2026June 4, 2026 by Gerald L. Maatman, Jr.

“Transfer, Not Dismissal” — Arizona Federal Court Confirms That 28 U.S.C. Section 1631 Applies To Personal Jurisdiction

By Gerald L. Maatman, Jr., Jennifer A. Riley, Jamar D. Davis, and Kenny Tran

Duane Morris Takeaways: On June 1, 2026, in Andrew Harrington et al. v. Cracker Barrel Country Store Inc., No. 21-CV-000940, 2026 WL 1532921 (D. Ariz. June 1, 2026), Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona, reaffirmed the Ninth Circuit’s determination that 28 U.S.C. section 1631 does apply to personal jurisdiction issues.

The ruling serves as a blueprint for corporate counsel on jurisdictional defenses in nationwide wage & hour lawsuits

Case Background

Plaintiffs, former Cracker Barrel employees, brought an FLSA collective action seeking redress for alleged failure to pay proper wages. Id. at *1. Cracker Barrel filed a Motion to Dismiss due to the existence of a valid arbitration agreement. Id. A subset of the Plaintiffs who did not continue with arbitration refused to relent, filing a First Amended Complaint asserting that that their signed arbitration agreements were invalid because the Plaintiffs were minors when they signed the agreements. Id. Again, Cracker Barrel filed a Motion to Dismiss contending that the Court lacked personal jurisdiction as none of the named Plaintiffs were from Arizona or worked in Cracker Barrel Arizona stores. Id. The Court subsequently granted Cracker Barrel’s second Motion to Dismiss for lack of personal jurisdiction. Id. Remaining steadfast, the Plaintiffs filed a Second Amended Complaint adding an Arizona Cracker Barrel employee as a plaintiff. Id. In denying Cracker Barrel’s third Motion to Dismiss, the Court held that the addition of the Arizona Cracker Barrel employee cured the jurisdictional defect. Id.

Following the grant of conditional certification, Cracker Barrel filed a Motion to Certify an Interlocutory Appeal. Id. The Court certified for appeal two questions, including, “[w]hether Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 265 (2017), prevents a District Court from sending notice under Section 216(b) of the FLSA to individuals over whom the Court lacks specific personal jurisdiction.” Id. The Ninth Circuit answered in the affirmative and held that “Bristol-Myers applies in collective actions under the FLSA and to that end, specific personal jurisdiction must be analyzed for every individual plaintiff proceeding under the collective action.” Id. In real word application, this meant that the Plaintiffs attempt to cure their Second Amended Complaint by adding an Arizona Cracker Barrel employee was ineffective as specific personal jurisdiction must be satisfied for all Plaintiffs in the collective action. Id. In other words, the Ninth Circuit determined that the District Court lacked personal jurisdiction over the non-Arizona Plaintiffs. Id. at *3.

In response, Plaintiffs filed a Motion to Sever and Transfer Non-Arizona Plaintiffs to the U.S. District Court for the District Court of Massachusetts. Id. at *1.

The Court’s Decision

Plaintiffs cited three statues, 28 U.S.C. Sections 1404, 1406, and 1631, to advance their motion. Id. at *2. The Court found that Section 1404 did not apply to Plaintiffs’ Motion. Id. The Court also clarified that Section 1406 did not apply to Plaintiffs’ Motion as the statute is appropriate when making an attempt to transfer a case if the initial court is not in the proper venue. Id. The Court noted that that venue “is not a jurisdiction component” and that Section 1406 is only proper if the defendant moved to dismiss (or transfer) for improper venue. Id.

The Court observed that Section 1631 did not apply to Plaintiffs’ Motion as it “is used specifically to cure deficiencies in jurisdiction.” Id. The statute, however, hinges on a “want of jurisdiction.” 28 U.S.C. § 1631. All circuits agree that “want of jurisdiction” applies to subject matter jurisdiction; however, there is a circuit split on whether the term applies to personal jurisdiction. Harrington, 2026 2026 WL 1532921, at *2. The Ninth Circuit typically finds that Section 1631 applies to personal jurisdiction. Id.

In the end, the Court made the decision to sever the non-Arizona plaintiffs and transfer their claims to the District Court of Massachusetts because there was a “want of jurisdiction” for the non-Arizona plaintiffs and because the legislative history, plain text, and the Ninth Circuit’s interpretation of Section 1631 (that the statute applies to personal jurisdiction) allowed for the transfer. Id. at 3.

Implications For Employers

Employers should remain diligent to confirm that personal jurisdiction applies for each plaintiff proceeding under a collective action. This is because attempts by the plaintiff’s bar to retain jurisdiction with the addition of a single plaintiff who is a resident of the location for the presiding court are futile. Further, this decision reaffirms the application of the Ninth Circuit’s reading of Section 1631 — namely, that “want of jurisdiction” applies to personal jurisdiction issues. Companies defending nationwide wage and hour actions should closely evaluate whether transfer motions can be used strategically when personal jurisdiction defects exist, especially in cases involving large groups of opt-in plaintiffs from multiple states.

June 4, 2026June 4, 2026 by Gerald L. Maatman, Jr.

Colorado Federal Court Allows Employer To Seek Attorneys’ Fees Against EEOC After Deeming Long COVID Claims Frivolous

By Gerald L. Maatman, Jr., Tiffany Alberty, and Bernadette Coyle

Duane Morris Takeaways: On June 1, 2026, in Equal Employment Opportunity Commission v. A&A Appliance, Inc., No. 1:23-CV-2456 (D. Colo. June 1, 2026), Chief Judge Daniel D. Domenico of the U.S. District Court for the District of Colorado granted Defendant A&A Appliances, Inc.’s (“A&A”) motion to deem the EEOC’s claims under the Americans with Disabilities Act (“ADA”) frivolous, unreasonable, and without foundation, entitling the employer to seek a full award of attorneys’ fees. This decision is an important read for corporate counsel facing employment discrimination cases, particularly EEOC-initiated litigation. The ruling demonstrates that the federal agency can face fee-shifting consequences when it pursues claims that lack evidentiary support from their inception.

Case Background

Defendant A&A Appliance, Inc. (“A&A”) employed Karima Javanzad from February 2019 to June 2020. During the early months of the COVID-19 pandemic, Ms. Javanzad sought a 12-week FMLA leave for varied reasons, including her own possible COVID-19 infection, her son’s illness, and a gastrointestinal condition. A&A approved the medical leave retroactively, covering mid-March through early June 2020. Over the following weeks, A&A and Ms. Javanzad exchanged emails, calls, and texts about when her leave would expire and whether an extension was possible. When Ms. Javanzad did not return to work after her leave ran out, A&A terminated her employment on June 10, 2020, explaining that it had offered to extend her leave only if the original FMLA-triggering condition warranted it, and that her gastrointestinal disorder (unrelated to COVID-19) did not qualify.

Ms. Javanzad subsequently filed a charge of discrimination with the EEOC in December 2020, asserting that A&A had discriminated against her based on her disability and retaliated against her for seeking a reasonable accommodation. Following its investigation, the EEOC concluded there was reasonable cause to believe A&A violated the ADA and attempted to resolve the matter through conciliation. After those efforts failed, the EEOC filed suit in September 2023 claiming: (1) failure to accommodate, (2) disparate treatment, and (3) retaliation under the ADA.

In September 2025, the Court granted summary judgment in favor of A&A on every claim, concluding that the EEOC had not demonstrated that A&A was ever on notice of a qualifying disability that required accommodation under the ADA. A&A then moved for an order deeming the EEOC’s claims frivolous, unreasonable, and without foundation so that it could recover its full attorney’s fees.

The Court’s Decision

Chief Judge Domenico granted A&A’s motion. The Court applied the standard from Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which permits an award of attorney’s fees to a prevailing defendant in an ADA case where the court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. at 422.

The Court applied three factors from the Eleventh Circuit’s decision in Walker v. NationsBank of Florida, N.A., 53 F.3d 1548 (11th Cir. 1995), which the Tenth Circuit has affirmed: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits. All three factors weighed in A&A’s favor — the EEOC failed to establish a prima facie case, A&A offered to settle, and the case was dismissed on summary judgment before trial.

The Court rejected the EEOC’s argument that the Christiansburg Garment standard is met only when a party “utterly fails to produce any evidence in support of material issues necessary to withstand summary judgment.” The Court explained that while the EEOC presented some evidence that Ms. Javanzad had a disability and requested leave, it failed to present evidence for the critical element of A&A’s knowledge of the claimed disability. As the Court emphasized, “[a] ‘health condition’ does not equate to a qualifying disability under the ADA” and “knowledge of a health condition is not necessarily knowledge of a disability.”

Importantly, the Court found that the EEOC had multiple years before initiating the action in September 2023 to investigate the facts and apply established case law. The EEOC’s own initial complaint showed that it knew Ms. Javanzad was diagnosed with vocal cord paralysis and gastritis after her June 9 endoscopy, and thus presumably after her June 10 termination, and that she was diagnosed with COVID-19 after termination. These facts undermined the EEOC’s assertion that its evidence changed throughout discovery. Moreover, fact discovery closed in July 2024, seven months before the dispositive motion deadline, and A&A raised issues of factual and legal deficiencies throughout litigation prior to summary judgment.

Finally, the Court noted that the EEOC is not a “regular plaintiff” and that courts may consider distinctions between the Commission and private plaintiffs. Quoting the Fifth Circuit, the Court observed that the EEOC “owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 473 (5th Cir. 2009). The Court concluded: “Ms. Javanzad might have been excused from pressing these issues. The EEOC is not.” For these reasons, the Court entitled A&A to reasonable attorney’s fees.

Implications For Employers

For employers facing EEOC-initiated litigation, this decision underscores the importance of raising factual and legal deficiencies early, consistently and persistently throughout discovery, as the Court credited A&A’s efforts to put the EEOC on notice of the weaknesses in its case. This decision also reinforces that while there is a high threshold for establishing entitlement to attorney’s fees, prevailing defendants are not without recourse when the EEOC presses claims lacking foundational evidentiary support.

June 2, 2026June 2, 2026 by Gerald L. Maatman, Jr.

California Federal Court Clarifies Limits On AI Bias Testing And Applicant Data Disclosure In Mobley v. Workday

By Gerald L. Maatman, Jr., Adam D. Brown, and Elizabeth G. Underwood

Duane Morris Takeaways: In Mobley, et al. v. Workday, Inc., Case No. 23-CV-00770, 2026 WL 1510537 (N.D. Cal. May 29, 2026) (ECF No. 340), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California issued an order resolving three discovery disputes in this closely watched employment discrimination class action involving novel artificial intelligence (AI) issues. The Court denied Plaintiffs’ motion to compel production of Workday’s bias-testing data, finding that the attorney-client privilege protects the data because Workday’s attorneys curated it and used the results in providing legal advice. The Court also denied Plaintiffs’ motion to compel Workday to produce its customers’ applicant data because Plaintiffs failed to show that Workday had control of that data within the meaning of Rule 34 of the Federal Rules of Civil Procedure. However, the Court ordered production of Workday’s EEO-1 and Office of Federal Contract Compliance Programs (OFCCP) documents, finding those documents to be relevant to Workday’s knowledge of potential demographic disparities when utilizing its AI tools.

The ruling is significant for corporate counsel. For employers navigating the intersection of privilege, discovery obligations, and AI hiring tools, this ruling provides important guidance on protecting bias-testing data while recognizing the broad scope of discoverable information in AI employment discrimination cases.

This development follows Workday’s unsuccessful Motion to Dismiss Plaintiff’s Amended Complaint, which we blogged about here, Workday’s first successful Motion to Dismiss, which we blogged on here, and the EEOC’s amicus brief filing, which we blogged about here.

Case Background

Plaintiffs are suing Workday for utilizing an AI screening system that allegedly is more likely to deny employment applications from individuals who are African American, suffer from disabilities, or are over forty years old. Id. at *1. Workday Recruiting is a software product that helps customers manage hiring, and customers who purchase Workday Recruiting have access to an algorithmic feature called Candidate Skills Match, which determines the extent to which an applicant’s skills match the role to which they applied. Id. In 2024, Workday acquired HiredScore, which allowed Workday to offer additional features to customers, including Spotlight, a candidate review tool, and Fetch, a sourcing tool that connects organizations with potential talent by suggesting individuals for open jobs. Id.

As to the present discovery disputes, first, Plaintiffs filed a motion to compel Workday to produce its bias-testing data and its customers’ applicant data. Id. at *3. The parties disagreed as to whether the bias-testing data was protected by attorney-client privilege and whether Workday had control of its customers’ applicant data. Id. Second, Plaintiffs sought to compel production of Workday’s EEO-1 and OFCCP documents, with the parties disputing relevance, burden, and waiver. Id. at *6. Third, Plaintiffs moved to compel Workday to provide deanonymized data of applicants’ names and other application information. Id. at *7.

The Court’s Decision

Attorney-Client Privilege Applied To Bias-Testing Data

First, the Court agreed with Workday that its bias-testing data was protected from disclosure by the attorney-client privilege. Id. at *4. Specifically, the Court reasoned that the bias-testing data was privileged because Workday had shown more than mere direction from its attorneys and “ha[d] represented that its attorneys curated the data it used in the bias testing, the overall purpose of the testing was to provide legal advice and not to be used in a business capacity, and it ha[d] not submitted the data to a regulatory body.” Id.

Moreover, the Court rejected Plaintiffs’ arguments that Workday had waived privilege by using the bias-testing data offensively through reliance on an “AI Fact Sheet” that stated Workday performs bias testing. Id. at *5. Instead, the Court held that “Workday’s invoking the mere existence of its bias testing outside of litigation [was] not enough to waive privilege.” Id.

No Control Over Customer Application Data

Second, the Court denied Plaintiffs’ motion to compel Workday to produce its customers’ applicant data. Id. at *6. The Court found that Plaintiffs had not met their burden of demonstrating that the provision of the Master Subscription Agreement allowing Workday to produce a customer’s data under a court order constituted “control” under Rule 34 because Workday did not have a legal right to obtain its customers’ data on demand. Id. at *6. However, the Court observed that some third parties that Plaintiffs had subpoenaed had taken the position that Plaintiffs should seek the data from Workday instead. Id. Thus, the Court encouraged the parties to work together to resolve the issue. Id.

Production Of EEO-1 and OFCCP Documents

Third, the Court ordered production of Workday’s EEO-1 and OFCCP documents, finding that Plaintiffs had met their initial burden on relevance. Id. In particular, the Court reasoned that Workday utilizes the same AI tools as its customers, and under either the agent or direct-employer theory, “Workday’s EEO-1 and OFCCP documents are relevant to its knowledge of potential demographic disparities when utilizing AI tools.” Id. at *6.

Deanonymized Applicant Data

Finally, the Court disposed of Plaintiffs’ request for deanonymized applicant data as moot because Plaintiffs had admitted in subpoenas seeking the same information from third parties that they did not need applicant names. Id. at *7.

Implications For Employers

This decision reinforces the concept that bias-testing data can be shielded from production under attorney-client privilege when an employer’s attorneys curate the underlying data and conduct bias-testing for the purpose of providing legal advice, as opposed to a business or regulatory compliance purpose. Of note, and as supported by this Court’s decision, companies that utilize AI in their hiring processes should structure their bias-testing under the direction of legal counsel to preserve attorney-client privilege.

Moreover, the Court’s ruling on EEO-1 and OFCCP documents suggests that employers and AI vendors should be aware that they may face broad discovery obligations regarding their own use of the same AI tools they market to customers, as in this case, the Court found Workday’s EEO-1 and OFCCP documents relevant because Workday uses the same AI tools as its customers.