Anna Sheridan – Class Action Defense

May 8, 2025May 8, 2025 by Gerald L. Maatman, Jr.

Class Action Issues In 2025 – Report From The 9th Annual Class Action Conference In New York City

By Gerald L. Maatman, Jr., Jennifer A. Riley, Shannon Noelle, and Anna Sheridan

Duane Morris Takeaways: On May 8, 2025, the Beard Group sponsored the Class Action Money & Ethics Conference in New York City. During the conference, over 200 attendees discussed key issues impacting class action litigation in 2025. We were privileged to chair the Conference and present the keynote address on class action litigation trends for the past year and what 2025 has in store for Corporate America. The discussion at the program underscores the cutting-edge issues facing companies in this area of law.

Key Trends For The Past Year

In our keynote address, we discussed the top ten developments in the class action litigation space. The leading trends center on the new era of heightened risks and elevated exposures that pivot on record-breaking settlement numbers, the high conversion numbers for class certification motions into certified classes, and the rise in privacy and data breach class actions.

On the settlement front, 2022 saw $66 billion in total proceeds when measured by the top ten settlements in all areas of law. In 2023, that figure totaled $51 billion, for a combined total of $117 billion over the past 24 months. And in 2024, those numbers came in at $42 billion, which pushed the settlement numbers to $159 billion for the past 36 months.

In terms of class certification motions, the Plaintiffs bar successfully secured certification in 63% of cases over the past year. Those figures ranged from nearly 83% in WARN lawsuits to 37% in RICO cases. That said, the plaintiffs’ bar has proven its track record to convert class action lawsuit filings in to certified classes at a high rate.

In the privacy and data breach space, such claims became ubiquitous in 2024, with a virtual explosion in those types of lawsuits. While certification rates were quite low in data breach situations, the plaintiffs’ bar secured certification in privacy class actions at a higher rate.

We also discussed how class actions over environmental. social, and governance issues went mainstream in the past year. We predicted that ESG class actions will continue to increase, especially as the plaintiffs’ bar refines their theories of recovery and begin to monetize their claims. In particular, securities fraud class actions over DEI commitments are increasing as a result of the U.S. Supreme Court’s recent decision in Students For Fair Admissions, Inc., et al. v. President And Fellows Of Harvard College, 600 U.S. 181 (2023). Both plaintiffs’ lawyers and defense counsel anticipate more litigation in this space.

Data Breach Panel

An interesting panel discussion – consisting primarily of plaintiffs’ lawyers – ensued after the keynote address on wiretapping class claims under the Video Privacy Protection Act and data privacy class action litigation. They reflected on the patchwork quilt of rulings in these areas over the past year and the low certification rates due to problems in surmounting standing issues based on lack of injury-in-fact showings.

The panelists predicted a subtle shift in privacy and data breach lawsuits to effectuate a “work around” to these impediments. Multiple plaintiffs’ counsel predicted more reliance on state law claims and litigation of class-wide claims in state court.

Panel On Class Notice Strategies

The next panel focused on trends for class notice in 2025 and how artificial intelligence is now mainstream in terms of its use to facilitate the notice send to class members. The panelists expressed how these practices are quite innovative and rapidly evolving. Notice through social media and/or texts or email also is considerable cheaper than U.S. Mail, which is driving down settlement administration costs.

The challenge, however, is to prevent fraudulent claims from individuals seeking a share of the settlement pot. As to take rates, social media advertising is driving the rates upward, but the rates in data breach cases remain low at 1% to 5% (as compared to other types of settlements).- Class member demographics also impact the take rate, as older individuals are apt to view social media notice as “junk mail” or a scam. Conversely, staying ahead of fraudsters has created an imperative for settlement administrators (e.g., where settlement shares are claimed by an IP address of a bot).

Panel On Fraud In The Class Action Process

Another panel discussed the rise of fraudsters in the class action space. Some involve “deep fakes” of persons who seek to assert false claims as named plaintiffs or class members. Others involve cyber-criminals who infiltrate the settlement administration process through artificial intelligence software and seek class settlement shares on a false basis.

Judicial responses have run the gamut from shutting down the settlement administration process and rebooting it with enhanced security measures to referrals to law enforcement personnel to combat fraud. Panelists predicted that judges are apt to ratchet up the scrutiny of final settlement approval of class actions, and possibly promote direct mail notice over digital communications.

Implications For Companies

Class action litigation is a fact of life for corporations operating in the United States. Today’s conference underscored that change is inevitable, and class actions litigation is no exception.

April 25, 2025April 25, 2025 by Gerald L. Maatman, Jr.

Consent Decree Gets Dumped: Court Refuses To Approve Vague Settlement In EEOC v. Waste Pro

By Gerald L. Maatman, Jr., Anna Sheridan, and Brett Bohan

Duane Morris Takeaways: On April 22, 2025, in EEOC v. Waste Pro Fla., Inc., No. 23-CV-1132, (M.D. Fla. Apr. 22, 2025), Judge Wendy Berger of the U.S. District Court for the Middle District of Florida denied a joint motion for approval of a consent decree between the EEOC and Waste Pro of Florida, Inc. The Court determined that the parties failed to comply with the Middle District of Florida’s local rules and to provide specificities necessary for approval of the consent decree. For those who think that EEOC consent decrees simply get rubber-stamped, this order demonstrates that that this is not the case. This ruling illustrates the importance of litigants closely adhering to a courts’ local rules and always providing a legal and factual basis for the court to grant their motions, even when those motions are unopposed.

Case Background

On September 26, 2023, the EEOC, on behalf of charging party Fednol Pierre, filed a lawsuit against his former employer, Waste Pro of Florida, Inc. (“Waste Pro”) regarding allegations systemic racial harassment and retaliation under Title VII of the Civil Rights Act of 1964. (ECF 1.) The EEOC alleged that Waste Pro perpetuated a work environment that subjected Mr. Pierre to racial slurs and derogatory racial comments and retaliated against Mr. Pierre when he complained of harassment. Id. ¶¶ 36, 57.

On October 15, 2024, the parties jointly moved for approval of a consent decree. (ECF 65.) The motion spans two pages and includes details about the procedural background of the case, the claims made in the complaint, the settlement process, the decree’s compliance with the federal rules, and the decree’s public benefit. Id. Among other provisions, the agreement provided for a $1.4 million cash award to Mr. Pierre and other Black and Haitian employees and required Waste Pro to employ an officer to ensure compliance with civil rights laws. (ECF 65-1 ¶¶ 17–44.).

The Court’s Order

The Court denied the parties’ joint motion to approve the consent decree and found the motion failed on two independent grounds, including: (1) the motion did not provide a basis for approval and (2) the motion did not comply with Middle District of Florida Local Rule 3.01(a). (ECF 70 at 1.)

First, the Court determined that “the filing fails to provide this Court with any legal or factual basis” for granting the motion. Id. Courts do not rubber stamp consent decrees. See In Re Blue Cross Blue Shield Antitrust Litig. MDL 2406, 85 F.4th 1070, 1094 (11th Cir. 2023). Instead, courts must independently determine whether the agreements are “fair, adequate, and reasonable” by considering various factors. Bennett v. Behring Corp., 737 F.3d 982, 987 (11th Cir. 1984). In this case, the Court concluded that the parties had not provided it with sufficient information to undertake this analysis, so the Court could not approve the consent decree. (ECF 70 at 1.) As the parties here learned, courts generally will decline to enforce a consent decree that simply restates existing legal obligations without measurable terms.

Second, the Court held that “the filing fails to comply with Local Rule 3.01(a).” Id. The rule requires joint motions to include the word “unopposed” in the title. L.R. 3.01(a). It also requires a motion to include “a concise statement of the precise relief requested, a statement of the basis for the request, and a legal memorandum supporting the request.” Id. The parties titled the motion “Joint Motion for Approval of Consent Decree” and did not include a supporting legal memorandum; therefore, the Court determined that they failed to adhere to the requirements of the rule.

In sum, the Court concluded that it could not grant the parties’ motion without a firm factual or legal basis and that it would not excuse the parties’ violation of the local rules. (ECF 1 at 1.) Instead, it denied the motion and gave the EEOC one week to show cause why the lawsuit should not be dismissed with prejudice. Id.

Implications For Employers

The Court’s ruling in Waste Pro should serve as a stark warning to all litigants that they should always review a court’s local rules and be in the habit of giving the court a reason to rule in their favor, even when the relief they seek is unopposed.

This case demonstrates the serious consequences that can result from a lack of attention to detail. Here, the Court rejected the parties’ attempt to circumvent the Court’s independent duty to determine the fairness, adequacy, and reasonableness of the agreement.

When settling with the EEOC or any regulatory body, vague promises to “do better” will not suffice. If employers want their settlements approved, they cannot just recycle boilerplate language.

March 28, 2025 by Gerald L. Maatman, Jr.

No Shot at Class Certification – Pennsylvania Federal Court Rules that Company Review of COVID-19 Vaccine Exemption Requests Requires Individualized Inquiries Not Suitable For Class Treatment

By Gerald L. Maatman, Jr., Shannon Noelle, and Anna Sheridan

Duane Morris Takeaways: In Meinert et al. v. Port Authority of Allegheny County, Case No. 2:22-CV-01736 (W.D. Pa. 2025), Judge Robert J. Colville of the U.S. District Court for the Western District of Pennsylvania denied class certification for a class of former transit company employees that were allegedly denied medical and religious exemptions to an employer-mandated COVID-19 vaccination policy. In so doing, the Court highlighted opportunities for defendants to defeat class certification by offering proof that the proposed class is amenable to ordinary joinder and that individualized inquiries predominate over common ones in terms of the qualified disabilities, sincerely held religious beliefs, and undue hardship. The ruling is a required read for corporate counsel facing workplace-related class actions.

Background

Former bus drivers and maintenance workers of Pittsburgh Regional Transit filed a class action complaint against the transit company in December 2022 alleging that a company policy issued in early 2022 requiring COVID-19 vaccinations for employees resulted in class members being denied a medical or religious exemption in violation of federal and state law prohibiting discrimination based on a disability or sincerely held religious belief. In total, the transit company received 350 accommodation requests related to its COVID-19 vaccination policy — 54 of which were for medical exemptions and 296 of which were for religious exemptions. The Company formed an Accommodation Review Committee that ultimately granted 13 medical exemption and 30 religious exemption requests to its vaccination policy.

The plaintiffs argued that the exemption review process was a “sham.” As it regards the medical exemption review process, the plaintiffs argued all proposed class members (the “medical exemption class”) were denied a medical exemption because their pre-existing conditions or disabilities did not show a contraindication to the CDC guidelines and the Company did not factor whether the conditions were a recognized disability under the ADA. As it regards its religious exemption review process, the plaintiffs maintained that the Company did not engage in any individualized analysis to determine undue hardship (the “religious exemption class”).

The Court’s Decision

In its Rule 23 analysis, the Court ruled that the medical exemption class failed to meet the numerosity and commonality prerequisites and that the religious exemption class failed to satisfy the commonality and predominance requirements for class certification. The Court found that as the plaintiffs presented no evidence to contradict the Company’s proof that only 12 individuals fell into the proposed medical exemption class, the Court opined that the plaintiffs failed to establish numerosity and demonstrate that joinder of all members was impracticable, particularly given that all class members were employees of the Company in Pittsburgh.

The Court also rejected plaintiffs’ generic arguments that class certification would promote consistent results and judicial economy. The Court further addressed the lack of commonality of the medical exemption class in dicta (as the lack of numerosity was sufficient to dismiss the proposed class) but nevertheless found that determining whether each member of the class had a cognizable disability would be an individualized inquiry that could not be considered on a class wide basis.

With respect to the religious exemption class, the Court found a lack of commonality given that the sincerity of a class member’s religious beliefs and the undue hardship to the Company are both individualized inquiries not suitable for class treatment. The Court rejected plaintiffs’ contention that the Company did not engage in any individual analysis to determine undue hardship, crediting an affidavit submitted by the Company detailing the Accommodation Review Committee’s process and attaching denial letters, which it reasoned illustrated that the Company considered undue hardship on an individual-by-individual basis. For the same reasons, the Court also reasoned that predominance was lacking as to the religious exemption class given that the sincerity of class members’ religious beliefs and undue hardship to the Company would both turn on individualized proof rather than evidence common to all class members.

Implications of the Decision

The Court’s decision underscores the opportunity for defendants to defeat certification by submitting evidence that proposed members of the class are limited and could be easily joined through ordinary joinder procedures and that the proposed class-wide proceeding is not apt to generate common answers as to whether class members are entitled to relief, as opposed to common questions.

Employers implementing similar review processes for exemption requests to company policies are well-advised to document and evidence an individualized process in evaluating and responding to such requests to defend against class action exposure.

February 26, 2025February 26, 2025 by Gerald L. Maatman, Jr.

EEOC Male Bias Suit Against Sports Bar Restaurant Group Survives Dismissal

By Gerald L. Maatman, Jr., Anna Sheridan, George J. Schaller

Duane Morris Takeaways: In EEOC v. Battleground Restaurants, Inc. et al., 1:24-CV-792, 2025 U.S. Dist. LEXIS 32071 (M.D.N.C. Feb. 24, 2025), the Court denied Defendants’ motion to dismiss an EEOC lawsuit alleging discriminatory hiring practices against men at a chain of sports bars. The EEOC’s complaint asserts sex discrimination in hiring for server, bartender, and host positions, and for failures to preserve employment records in violation of Title VII of the Civil Rights Act of 1964.

This case signals a new wave of anti-discrimination enforcement actions against companies that prioritize hiring practices that may exclude male applicants. The Commission’s litigation efforts are in full swing, and companies must review their hiring practices to ensure all applicants are weighed neutrally during the application process.

Complaint Allegations

The EEOC’s complaint alleges that between December 1, 2019, and February 18, 2022, Kickback Jack’s restaurants located throughout North Carolina, Virginia, and Tennessee discriminated against males by failing to hire men for front of house, non-managerial positions. Id. at *1. Kickback Jack’s is owned and operated by Battleground Restaurants, Inc. and Battleground Restaurant Group, Inc. (“BRGI”) (collectively “Defendants”). Id.

Kickback Jack’s employs “servers, hosts, and bartenders in non-managerial front-of-house positions,” all of which require no “special skills or qualifications.” Id. at *2. Kickback Jack’s advertisements state that applicants need only “[b]ring [their] great attitude to work and [Kickback Jack’s] will train you.” Id. at *2.

The underlying charge was filed on July 31, 2020, when a female server, Melody Roe, filed an EEOC charge of discrimination against Kickback Jack’s. Id. Included in Roe’s charge of discrimination was statements that Kickback Jack’s “has a policy and/or practice of only hiring females for front of house positions and not into management.” Id. at *3. The EEOC’s investigation into Roe’s charge of discrimination found that Battleground Restaurants, Inc. “maintained a policy or practice . . . of failing or refusing to hire males for non-managerial front of house positions because of their sex.” Id.

The Commission’s investigation further revealed that of the 2,100 non-managerial front-of-house employees employed between December 1, 2019, and February 18, 2022, “approximately 3% were male” and some Kickback Jack’s locations “did not employ male servers at all.” Id. at *4.

As a result of these newly uncovered hiring practices, the EEOC filed a complaint asserting that “a predominantly female front-of-house workforce cannot be justified by any legitimate business purposes” and that Defendants’ hiring practices “were and are intentional and willful.” Id. The Complaint also alleged that Defendants failed to make and preserve records relevant to their employment practices, and specifically failed to retain applications for employment. Id. at *5.

Defendants moved to dismiss the EEOC’s complaint, dismiss or strike BRGI, and requested the Court certify the case for interlocutory appeal. Id. at *1.

District Court’s Ruling

The Court denied the Defendants’ motion in all aspects on the basis that the EEOC complied with procedural and administrative requirements, plausibly alleged a pattern or practice of disparate sex discrimination, and that the EEOC could properly include BRGI as a defendant. Id.

Defendants argued the EEOC failed to provide them with adequate notice of its claims on “behalf of male applicants and the Title VII records violations.” Id. at *5. Defendants did not dispute that it received notice of Roe’s charge of discrimination within 10 days (as required by 42 U.S.C. § 2000e-5(b)). Rather, the Defendants argued the charge of discrimination did not “give them notice of an EEOC investigation into discrimination against males in hiring.” Id. at *7.

The EEOC countered that the investigation into discrimination against males was implicit in Roe’s allegations that the restaurant had “a policy and/or practice of only hiring females” for front of house positions. Id.The Court agreed that the “alleged discrimination against males for front of house positions appears on the face of the charge of discrimination,” Defendants did not allege that they were not on notice of the charge of discrimination, and therefore, the EEOC complied with its administrative and procedural requirements under the statute. Id. at *8

The Court also denied Defendants’ motion to dismiss the EEOC’s preservation of records claim because no 10-day notice requirement exists under the statutory provisions. Id. at *8-9. The Court further disagreed with Defendants that the EEOC’s claims should be limited to 180 days before Defendants received notice of the charge of discrimination because “the complaint [did] not contain the facts necessary to assess whether the EEOC’s claims exceed Title VII’s statute of limitations period.” Id. at *10-11.

On Defendants’ argument to dismiss or strike BRGI, the Court opined that the Commission plausibly alleged BRGI is “essentially, Kickback Jack’s operator.” Id. at *12. The Court held the EEOC can sue BRGI “despite not naming [BRGI] directly as a party in the charge of discrimination or communicating with it based on both the joint enterprise test and substantial identity exception.” Id. at *15.

On the EEOC’s allegations of Title VII sex discrimination in hiring, the Court denied the Defendants’ motion to dismiss because the EEOC “plausibly alleged a pattern or practice of discrimination by using statistics” which demonstrated of the 2,100 non-managerial front-of-house employees approximately only 3% were male. Id. at *18. And in some instances, locations “did not employ any male servers at all.” Id. The EEOC also satisfied its pleading requirements under Title VII as it alleged Defendants discriminated “against male applicants –– a protected class — ” and alleged that “male applicants qualified” for the front-of-house roles.” Id. *17-18. Based on these findings, the Court reasoned “this type of ‘gross disparity’ plausibly demonstrates an inference of discrimination against males who applied to work as servers.” Id. at *18. Therefore, the Court found that the EEOC has met its burden of plausibly alleging the elements of its claim sufficiently to survive a motion to dismiss.

The Court also denied Defendants’ request for certification stating it did “not find any esoteric issues meriting an interlocutory appeal.” Id. at *2.

Implications For Employers

Employers’ hiring practices remain a target for EEOC initiated litigation. This case is but one example of the EEOC bringing a lawsuit after identifying a pattern of potentially discriminatory practices first alleged in a charge. While uncommon, the EEOC does regularly bring these “pattern-or-practice” lawsuits under Section 706 or Section 707 of Title VII of the Civil Rights Act of 1964 when it has a case that draws significant public interest or could make an industry-wide impact.

This is far from the first case of male gender discrimination in the restaurant industry. The popular restaurant chain Hooters has settled several similar lawsuits, one in 1997 for $3.75 million, and one in 2009 for an undisclosed sum. See Latuga v. Hooters, Inc., 1:93-CV-7709 (N.D. Ill. Nov. 25, 1997); see also Grushevski v. Texas Wings, Inc., No. 09-CV-00002 (S.D. Tex. Apr. 16, 2009). Lawry’s restaurants were also hit with an EEOC pattern or practice lawsuit in 2006 alleging that Lawry’s practice of only hiring females for its server positions constituted gender discrimination. See EEOC v. Lawry’s Restaurants, Inc., No. CV 06-01963 (C.D. Cal. Mar. 31, 2006).

The recent case against Battleground shows that the EEOC continues to closely scrutinize hiring practices which select individuals based on a protected characteristic, including gender. Employers must also monitor and audit their hiring practice outcomes to ensure statistical models don’t demonstrate discrimination otherwise an EEOC action may be on the horizon.

February 11, 2025February 11, 2025 by Rebecca S. Bjork

Kansas Federal Court Declines To Revisit Motion for Summary Judgment Order In EEOC Lawsuit And Rejects Interlocutory Appeal Request By Employer

By Rebecca S. Bjork, Gerald L. Maatman, Jr., and Anna Sheridan

Duane Morris Takeaways: A Federal Judge in Kansas recently refused a request for reconsideration of summary judgment and a request for interlocutory appeal on the correct legal standard for hostile work environment claims post-Muldrow v. City of St. Louis, Mo. In EEOC v. Chipotle Services, LLC, Case No. 23-CV-2439 (D. Kan. Feb. 10, 2025) (linked here), Judge Kathryn H. Vratil of the U.S. District Court for the District of Kansas found that appellate review of the Muldrow standard used at summary judgment likely would not affect the case substantially, but rather lead to delay before the case would proceed in the same manner regardless of a decision by the Tenth Circuit. The opinion also rejected the employer’s motion for reconsideration to rehash arguments it should have made on summary judgment – in the Court’s view, an inappropriate use of a motion for reconsideration. This decision not only highlights the importance of timely arguments made at the appropriate stage of litigation, but also counsels employers to analyze and balance the potential outcomes of motions with the time and costs associated with non-dispositive or only partially dispositive motions.

Case Background

Areej Saifan, a Muslim woman, and former Chipotle crew member, alleged in a Charge of Discrimination that she experienced religious harassment from a co-worker during her employment. Saifan alleges that a co-worker repeatedly asked to see Saifan’s hair, which was covered by hijab, and on at least one occasion, the co-worker physically pulled on the hijab, partially uncovering Saifan’s hair. Saifan resigned the next day. After investigating the Charge, the EEOC filed suit on behalf of Ms. Saifan against Chipotle alleging that Chipotle (1) subjected Saifan to unlawful religious harassment, (2) constructively discharged her, and (3) retaliated against her for reporting religious harassment.

Chipotle filed a motion for summary judgment on all three of the EEOC’s Title VII claims but was unsuccessful on all counts.

On December 17, 2024, defendant filed two motions, asking the Court to (1) reconsider its order on defendant’s summary judgment motion, and (2) certify an interlocutory appeal.

The Court’s Ruling

Judge Vratil dismissed defendant’s motion for reconsideration as “simply a rehash of arguments that it made or could have made on summary judgment.” Slip Op. at 5. The Court rejected each of Defendant’s positions as an argument that “it [Defendant] could have raised in summary judgment briefing and chose not to.” Id. at 8. The Court found that Chipotle had not met its burden of showing an intervening change in the controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice as is required by the local Kansas rules.

Judicial economy also took center stage in this ruling when the Court denied the motion to certify its Memorandum and Order for immediate appeal, finding that an interlocutory appeal would not materially advance the ultimate termination of the litigation. While the question of whether Muldrow changed the legal standard for hostile work environment is a controlling question of law, the Court determined that Chipotle failed to establish that the Tenth Circuit would likely dispose or affect the EEOC’s claims for trial. As such, an interlocutory appeal would only delay, rather than expedite or eliminate trial.

Implications For Employers

Employers often may want to fight a non-dispositive decision that feels unfair. However, this decision counsels employers to consider the implications of motions practice before proceeding if the requested outcome would not materially change the future of the case.