Brett Bohan – Class Action Defense

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.

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

Colorado Federal Court Compel Arbitration In Parking Lot Dispute, Finding Posted Signs Create Binding Contracts

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

Duane Morris Takeaways: On April 14, 2026, in Brant, et al v. Parking Revenue Recovery Services, Inc., Case No. 1:25-CV-01771 (D. Colo. Apr. 14, 2026), Judge Gordon P. Gallagher of the U.S. District Court for the District of Colorado granted Defendant Parking Revenue Recovery Services, Inc.’s motion to compel arbitration. Plaintiffs, a group of parking lot customers who brought a putative class action, argued that they never agreed to arbitrate and that any arbitration clause was unconscionable. The Court rejected both arguments, finding that by parking in the lots, Plaintiffs assented to the terms posted on conspicuous signs — including a binding arbitration clause — and that the clause was not unconscionable. This ruling reinforces that businesses can form enforceable contracts, including arbitration agreements, through conspicuously posted signage, and that consumers who fail to read posted terms are nonetheless bound by them.

Case Background

Plaintiffs Brian Brant, Brooke Fitz, Robert Caldwell, and Mayenssi Montiel each parked at various parking garages managed by Defendant Parking Revenue Recovery Services, Inc. (“PRRS”) in Denver and Little Rock between 2023 and 2025. (ECF 36 at 1-2) At each of these lots, PRRS posted large red signs at the entrances, exits, and pay stations. (Id. at 2-14) The signs stated, in relevant part, “This is a Contract,” instructed customers to “Read these terms PRIOR to parking,” and included a capitalized, boldfaced “ARBITRATION” heading explaining that “[b]y parking on this Facility, you hereby agree that the sole remedy for all unresolved disputes is binding arbitration, and specifically waive the right to jury trial, class action and/or class arbitration”. (Id.)

Each of the Plaintiffs claimed they did not see the signs. (Id. at 7, 12, and 14.) Some faulted the location, lighting, and number of signs, while others argued there were no gates or speed bumps to slow drivers down enough to read the posted terms. (Id.)

The Court’s Order

The Court granted PRRS’s motion to compel arbitration, addressing both of Plaintiffs’ arguments against enforcement. (Id. at 16-21.)

First, as to whether a valid agreement to arbitrate existed, the Court noted that two other courts in Colorado had recently addressed the same issue with the same defendant. (Id. at 16.) Adopting the analysis of Chief Judge Daniel D. Domenico in Butler v. Asura Technologies USA, Inc., the Court held that a contract was formed when Plaintiffs manifested assent to the implied terms of the parking agreement by choosing to park in the lots. (Id. at 17.) The Court emphasized that the fundamental exchange — temporary use of a parking spot in exchange for a promise to pay — was sufficient to establish contract formation, and that the operator of a parking lot may modify or add to the basic terms by posting signs. (Id.) The Court analogized the posted signage to online “clickwrap” contracts, noting that users of such contracts are regularly bound by terms they never actually read. (Id. at 19.) Accordingly, whether Plaintiffs chose to read the signs was irrelevant because they agreed to the posted terms when they decided to park their cars on PRRS’s lots. (Id. at 18.)

The Court also rejected Plaintiffs’ argument that the arbitration clause was insufficiently specific because it lacked details regarding the scope, rules, or effect of any arbitration ruling. (Id. at 19.) Citing the Supreme Court of Colorado’s long-standing precedent in Guthrie v. Barda, 533 P.2d 487 (Colo. 1975), the Court held that a clause stating disputes “shall be submitted to binding arbitration” is sufficient and enforceable, even without additional procedural details. (Id.)

Second, the Court addressed Plaintiffs’ unconscionability defense. Applying the seven-factor test under Colorado law, the Court acknowledged that the first factor — a standardized agreement between parties with unequal bargaining power — may point toward unconscionability but noted that consumer contracts of adhesion are ubiquitous in modern commerce. (Id. at 20.) The remaining factors, however, weighed against a finding of unconscionability: Plaintiffs had the opportunity to review the terms before parking, the arbitration provision was written in large font against a contrasting red background and arbitration is a commercially reasonable method of dispute resolution. (Id.) The Court concluded bluntly that “if Plaintiffs did not wish to agree to the terms, they could have parked somewhere else.” (Id. at 21.)

The Court ordered the case stayed and administratively closed pending the conclusion of arbitration. (Id. at 22.)

Implications For Employers And Businesses

The Court’s decision in Brant v. Parking Revenue Recovery Services, Inc. affirms that conspicuously posted signage can create binding arbitration agreements with consumers, even in the absence of a signed written contract, a clickthrough mechanism, or any affirmative acknowledgment. For businesses that rely on physical signage to communicate contractual terms — including parking operators, event venues, and service providers — this decision provides a roadmap for drafting and displaying enforceable arbitration clauses. Specifically, businesses should ensure that their signs are prominently displayed, use clear language and contrasting formatting, and explicitly state that use of the premises constitutes acceptance of the posted terms, including arbitration. The decision also reinforces that a consumer’s failure to read posted terms does not relieve them of their contractual obligations, further underscoring the importance of adequate notice over actual knowledge.

December 1, 2025December 1, 2025 by Gerald L. Maatman, Jr.

Florida Federal Court Denies Certification Of Nationwide Classes Of Burger King Consumers in Suit Alleging Deceptive Practices

By Gerald L. Maatman, Jr., Brett Bohan, and Andrew Quay

Duane Morris Takeaways: On November 25, 2025, in Coleman, et al. v. Burger King Corp., Case No. 22-CV-20925, 2025 U.S. Dist. LEXIS 231422 (S.D. Fla. Nov. 25, 2025), Judge Roy K. Altman of the U.S. District Court for the Southern District of Florida denied a motion for class certification of three nationwide classes of consumers against one of the Burger King after the lawsuit narrowly survived two motions to dismiss. The Court held that due to the predominance of individual questions between the proposed classes, and plaintiffs’ lack of class-wide evidence to support certification, the plaintiffs failed to establish the prerequisites for class certification from the sale of “Whoppers” and “Big Kings” across the country. The opinion illustrates the hurdles plaintiffs face when attempting to certify multi-state, let alone nationwide, classes, and the fundamental, yet effective arguments corporate counsel can raise to defeat them.

Case Background

Plaintiffs, a group of Burger King consumers alleging that Burger King materially overstates the size of its burgers in advertisements, sought certification of three nationwide classes. Id. at *2. Plaintiffs sought certification under Rule 23(b)(3), which allows a district court to certify a class only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. at *6-7 (quoting Fed. R. Civ. P. 23(b)(3)). Plaintiffs insisted that they each purchased a burger because of the advertising and would not have if the size of the burgers had been portrayed accurately. Id. at *3. Notably, the plaintiffs did not offer any substantive analysis on variations between state laws despite their request for certification of nationwide classes.

Burger King responded that plaintiffs’ motion could not satisfy predominance and superiority under Rule 23(b)(3) and commonality and typicality under Rule 23(a). Id. at *8. Burger King argued that plaintiffs’ lack of class-wide evidence, coupled with Burger King’s affirmative defenses that raise additional individualized questions, was fatal to their motion for class certification. Id. at *33. Also weighing against predominance, Burger King argued, the proposed class members “were exposed to a wide variety of advertisements,” and “[n]o single photograph of a burger . . . can represent the appearances of the burgers every other class member received.” Id. at *23, 28.

The Court’s Opinion

In a 35-page opinion, Judge Roy K. Altman denied plaintiffs’ motion for class certification for failing to carry their Rule 23 burden. Explaining that plaintiffs are not entitled to “a mere pleading standard” on a motion for class certification, and that they must “affirmatively demonstrate” their compliance with each element of Rule 23, the Court held that plaintiffs failed to establish predominance and superiority under Rule 23(b)(3) and, at minimum, commonality under Rule 23(a). Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

As for predominance, the Court explained that Plaintiffs needed to be able to prove “the relative smallness of the burgers [they bought compared to the burgers in the advertisements] with a few pieces of common evidence that apply with equal force to everyone.” Id. at *30. Plaintiffs could not do that, the Court held, because each putative class member saw a particular advertisement and received a specific burger. Id. Plus, by seeking certification of nationwide or multi-state classes, plaintiffs bear the heavy burden to demonstrate that “variations in state law” do not threaten to “swamp any common issues and defeat predominance.” Id. at *10 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir. 2004)). Plaintiffs’ motion for certification did not provide “any analysis of potential state-law conflicts,” thus “utterly fail[ing]” to meet their burden of showing that common issues of law predominate. Id. at *12.

The Court further agreed that Burger King’s affirmative defenses raised additional individualized inquiries. If the Court were to grant certification, a “potentially significant percentage” of the putative class members may be precluded from pursuing their claims by virtue of an arbitration clause and class action waiver that loyalty rewards program users had agreed to, and with respect to at least one class, numerous plaintiffs and putative class members did not properly notify Burger King of the alleged breaches within a reasonable time after they discovered the alleged breaches.

For similar reasons, the Court rejected plaintiffs’ proffered method of calculating class-wide damages by subtracting the price of the burger from the value of the item as determined by the jury. Id. at *45. Burger King menu items vary by location, and the prices likely differed throughout the class period, so the Court would need to confirm when and where each individual plaintiff purchased a burger in order to compute damages. Id. at *46.

Turning to superiority, the Court held that plaintiffs’ proposed classes “would create an administrative nightmare.” Id. at *51. Plaintiffs contended that “there are no significant or unusual difficulties in managing this case” because Burger King’s liability “can be proven by its uniform advertisements and photographs of the actual Menu Items served to customers, which are common to the entire class.” Id. at *50. The Court rejected plaintiffs’ conclusory argument because the proposed class involves millions of consumers stretching to 2018, “very few of whom are likely to have retained proof of (or even remember) their fast-food purchases.” Id. at *52.

Finally, though not necessary for denying class certification, the Court held that plaintiffs failed to show that common questions they raised, such as whether Burger King’s advertisements are materially misleading, can be raised through class-wide evidence. Id. at *54. While plaintiffs offered questions common to the class, they failed to show that a class-wide proceeding would “generate common answers apt to drive the resolution of the litigation.” Id. at *55 (quoting Dukes, 564 U.S. at 350).

In sum, after narrowly surviving two motions to dismiss, plaintiffs were unable to surmount their burden at the class certification stage, and the Court denied their motion for class certification.

Implications For Companies

The Court’s holding in Coleman demonstrates the burden that plaintiffs must overcome when seeking to certify a class. Coleman shows that plaintiffs cannot rest on the allegations in their complaints to satisfy the elements of class certification and must instead put forth evidence from which courts may determine commonality and predominance.

In cases involving allegations of consumer fraud, it may not be sufficient for plaintiffs to establish that they were all deceived by the same allegedly fraudulent behavior. Instead, to certify a nationwide class, plaintiffs may also need to overcome differences between locations; difficulties in supplying reliable, supporting proof; and variations between state laws.

Additionally, Coleman represents a reminder of the continued utility of an arbitration agreement for defeating class certification, even where the agreement may not extend to all members of the class.

October 29, 2025October 29, 2025 by Gerald L. Maatman, Jr.

Illinois Federal Court Allows Plaintiffs To Proceed In Data Breach Class Action Anonymously

By Gerald L. Maatman, Jr., Brett Bohan, and Andrew Quay

Duane Morris Takeaways: On October 22, 2025, in Doe, et al. v. Veradigm Inc., No. 25-CV-10147, 2025 U.S. Dist. LEXIS 207942 (N.D. Ill. Oct. 22, 2025), Judge Mary M. Rowland of the U.S. District Court for the Northern District of Illinois granted plaintiffs’ motion to proceed under a pseudonym in a class action alleging violations of the Electronic Communication Privacy Act and the California Invasion of Privacy Act, and negligence for improper disclosure of plaintiffs’ protected health information (“PHI”). The Court held that the potential harm to the plaintiffs in revealing their identities exceeded the likely harm from concealment because revealing their identities would exacerbate the very harm plaintiffs sought to remedy.

The decision illustrates the delicate balancing that courts apply when deciding whether to allow plaintiffs to proceed anonymously, particularly when faced with allegations of improper disclosure of highly sensitive personal information including test results, doctor’s notes, and medical treatment information. When plaintiffs’ reasons for proceeding anonymously implicate the same reasons they brought the lawsuit, like in Veradigm, the scales are demonstrably tipped in favor of proceeding under a pseudonym.

Case Background

In August 2025, plaintiffs, proceeding under the pseudonyms “Jane Doe,” “Janet Doe,” and “John Doe,” filed a class action lawsuit against Veradigm alleging improper disclosure of their PHI to Google via Google’s online marketing systems. Id. at *1. Plaintiffs contended that the disclosure would make them particularly vulnerable if their true names were revealed, as the publication of their names together with improperly released PHI would make them a “prime target” for identity theft, fraud and financial loss, stigma, and similar threats. Id. at *2.

Plaintiffs’ initial motion to proceed under a pseudonym was denied without prejudice for failing to address recent Seventh Circuit precedent, Doe v. Loyola Univ. Chicago, 100 F.4th 910 (7th Cir. 2024), and Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997). Id at *1. In Loyola, the expelled plaintiff sought to proceed anonymously where he was accused of engaging in non-consensual sexual activity with another student. 100 F.4th at 912. In Blue Cross, the plaintiff requested anonymity out of fear that the litigation might result in the disclosure of his psychiatric records. 112 F.3d at 872. The Seventh Circuit indicated that it was inappropriate to allow the plaintiffs to proceed under fictitious names. See id.; Loyola, 100 F.4th at 914.

In their renewed motion in the case at hand, plaintiffs argued that Loyola and Blue Cross could be distinguished because, rather than concealing embarrassing information flowing from their own conduct, plaintiffs seek to prevent additional intrusions into their own private affairs. Veradigm, 2025 U.S. Dist. LEXIS 207942at *2. Plaintiffs agreed to reveal their true identities to Veradigm pursuant to a protective order to allow Veradigm to investigate their claims. Id. at *4-5.

The Court’s Opinion

The Court agreed that the sensitive information in Loyola and Blue Cross was “tangential” to the respective Title IX and ERISA claims, whereas in the case at bar “the injury litigated against is the same interest Plaintiffs seek to protect through pseudonyms: disclosure of Plaintiffs’ PHI.” Id. at *4. Furthermore, there could be no prejudice to Veradigm where the plaintiffs agreed to reveal their true identities under a protective order to allow Veradigm to investigate their claims. Id. at *4-5. Therefore, although the use of fictitious names is generally disfavored in federal court, the harm to plaintiffs in revealing their identities exceeded the likely harm from concealment, and the Court granted plaintiffs’ motion to proceed under a pseudonym.

An analogous decision from the U.S. District Court for the Northern District of California, In Re Meta Pixel Healthcare Litig., No. 22-CV-03580, 2025 U.S. Dist. LEXIS 45310 (N.D. Cal. Mar. 12, 2025), guided the opinion. There, as in Veradigm, the court considered whether the plaintiffs should be permitted to proceed under pseudonyms where data privacy was at issue. Id. at *12. It held that they should, reasoning that requiring the plaintiffs to proceed publicly would “arguably cause a further and greater privacy intrusion” and disclosure may dissuade plaintiffs from bringing privacy cases. Id. The court in Veradigm adopted this reasoning when granting plaintiffs’ motion for permission to proceed under a pseudonym. Veradigm, 2025 U.S. Dist. LEXIS 207942 at *4-5.

Implications for Companies

Veradigm illustrates that, where the privacy of an individual is at issue in a lawsuit, courts may be more inclined to permit plaintiffs to proceed anonymously to avoid intruding further on their privacy.

Individuals who know that they may be able to avoid disclosing their identities during litigation may feel emboldened to pursue a data privacy lawsuit that they may not have otherwise.

Therefore, companies should be aware of the risk of additional litigation as the result of plaintiffs being permitted to litigate under pseudonyms.

September 9, 2025September 9, 2025 by Gerald L. Maatman, Jr.

Colorado Federal Court Grants Summary Judgment For Employer In EEOC Case Alleging Long COVID Complications

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

Duane Morris Takeaways: On September 3, 2025, in Equal Employment Opportunity Commission v. A&A Appliance, Inc. d/b/a Appliance Factory Outlet, Inc., No. 1:23-CV-02456 (D. Colo. Sept. 3, 2025), Judge Daniel D. Domenico of the District Court for the District of Colorado granted Defendant A&A Appliance, Inc.’s motion for summary judgment as to the EEOC’s claims. The Court held that the EEOC failed to make a prima facie case of violations of the Americans with Disabilities Act because it had not shown Defendant was aware of a disability or request for accommodation from the charging party. This ruling illustrates the steps an employee must take to adequately demonstrate a disability and request an accommodation and the situations where an employer may be justified in terminating an employee who fails to return from taking leave under the Family Medical Leave Act.

Case Background

Defendant A&A Appliance, Inc. (“Defendant”) employed Karima Javanzad (“Claimant”) from February 2019 to June 2020. (ECF 172 at 1) Shortly before her termination, in April, the Claimant requested a retroactive 12-week leave of absence under the Family Medical Leave Act (“FMLA”), citing various ailments for her and her son, including COVID-19. Id. at 1-2. Defendant granted the Claimant’s FMLA request from March 12 to June 7. Id. at 2. During her leave, the Claimant contacted Defendant on several occasions to inquire regarding the length of her leave and whether she could extend it. Id. Defendant consistently communicated with the Claimant and informed her that she could extend her leave “if the triggering condition for FMLA was extended by [her] medical provider.” Id. The Claimant did not return to work on June 8, she did not respond to Defendant’s requests to discuss her position, and she did not provide nor receive any confirmation that she ever contracted COVID-19 nor had any disability requiring an accommodation until after the end of her leave. Id. at 6-7. The last doctor’s note the Claimant received in May stated that she did not have any work restrictions. Id. at 6. On June 9, Defendant informed the Claimant that her FMLA had been exhausted and requested to further discuss her position, but Claimant never responded. Id. at 7. As such, Defendant terminated her employment on June 10. Id. at 7.

In response to her termination, the Claimant filed a charge with the Equal Employment Opportunity Commission (the “EEOC”), alleging disability discrimination and retaliation under the Americans with Disabilities Act (the “ADA”). Id. at 2. When conciliation efforts between the parties failed, the EEOC filed a lawsuit on behalf of the Claimant against Defendant on the same grounds. Id. Following discovery, both parties moved for summary judgment. Id.

The Court’s Order

The Court granted summary judgment in favor of the Defendant on both the ADA discrimination and the retaliation counts. Id. at 4. On each count, the Court reasoned that the EEOC must show that the Claimant was either disabled or that she was engaged in a protected activity for which she was discriminated or retaliated against. See id. at 4-10. The Court concluded that the EEOC could prove neither element.

First, the Court noted that the Claimant provided three possible disabling illnesses, COVID-19, vocal cord paralysis, and gastritis. Id. at 7. However, she never received a formal diagnosis for any of them until after she was terminated. Id. Moreover, while the Claimant asserted that she was unable to return to work, her May doctor’s note contradicted her statements by indicating that she “did not have any [work] restrictions” and that she could return to work without issue. Id. at 6-7. The Court concluded that these “inconsistent representations regarding [Claimant’s] ability to return to work” coupled with the lack of clarity regarding her illness meant that “Defendant cannot be found to have been on notice of a disability that required accommodation under the ADA.” Id. at 7 (emphasis added).

Second, in the alternative, the Court held that, even if the EEOC had presented evidence that the Claimant suffered from COVID-19, the EEOC’s claims still failed. Id. The Court reasoned that, to recover for a claim for failure to accommodate or for retaliation for requesting an accommodation, an employee must “make an adequate request, making clear that she wants assistance for her disability.” Id. at 8 (internal quotation marks omitted). According to the Court, the Claimant’s requests for additional information regarding her remaining leave did not amount to an accommodation request. Id. In fact,“Ms. Javanzad never made an explicit request for an accommodation from Defendant — even for an additional leave of absence — until after her FMLA leave expired.” Id. And when she did request additional leave, the Claimant did not provide any details about the leave she was requesting. Id. The Court concluded that these facts provided an independent basis for entering summary judgment against the EEOC. Id. at 9.

Implications For Employers

The Court’s decision in A&A Appliance, Inc. serves as a reminder to both employees and employers. Although employers must engage in the interactive process for both ADA and FMLA purposes to reasonably accommodate employees’ disabilities, the onus rests with the employee to demonstrate a disability and to request an accommodation, effectively providing notice to the employer of the claimed disability. If the employee fails to satisfy either of these prerequisites, an employer is not on notice of any disability and may be justified in terminating the employee’s employment.

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

Illinois Federal Court Dismisses Data Breach Class Action Lawsuit For Lack Of Subject-Matter Jurisdiction

By Gerald L. Maatman, Jr., Christian Palacios, and Brett Bohan

Duane Morris Takeaways: On August 20, 2025, in Phelps v. Ill. Bone & Joint Inst., LLC, No. 24-CV-08555, 2025 WL 2410341 (N.D Ill. Aug. 20, 2025), Judge Martha Pacold of the U.S. District Court for the Northern District of Illinois granted Defendant Illinois Bone & Joint Institute, LLC’s motion to dismiss for lack of subject matter jurisdiction. The Court held Plaintiff failed to adequately plead Defendant’s citizenship, given its status as a limited liability company; therefore, the Court could not determine whether complete diversity existed between the parties. This ruling illustrates the differences between the general diversity statute under 28 U.S.C. § 1332(a), and the more lenient “minimal diversity” requirement under the Class Action Fairness Act, as well as the consequences of failing to sufficiently plead a limited liability company’s citizenship.

Case Background

On August 30, 2024, Defendant Illinois Bone & Joint Institute, LLC (“Defendant”) sent a data breach notification letter to its patients, including Plaintiff Alexandra Phelps (“Plaintiff”). Id. at *1. Plaintiff, individually and on behalf of a putative class, filed a lawsuit shortly after receiving the letter alleging negligence, negligence per se, breach of implied contract, and violation of the Illinois Personal Information Protection Act. Id.

Defendant moved to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Id. In the motion, Defendant raised two arguments, including: (i) that Plaintiff lacked Article III standing, and (ii) that Plaintiff could not establish diversity jurisdiction under the Class Action Fairness Act (“CAFA”). Id. Although Plaintiff had invoked jurisdiction under the CAFA in her Complaint, she did not respond to Defendant’s CAFA arguments. Id. at 2. Instead, Plaintiff argued that she could “invoke jurisdiction under the general diversity statute, 28 U.S.C. § 1332(a).” Id.

The Court’s Order

The Court determined that the Complaint failed to allege sufficient facts to support diversity jurisdiction.

First, the Court reasoned that Plaintiff’s decision not to respond to Defendant’s CAFA arguments amounted to a concession that Plaintiff could not meet the standards for subject-matter jurisdiction under the statute. Id. However, although Plaintiff had not invoked general diversity jurisdiction in her Complaint, the Court permitted her to raise these arguments because “a complaint’s imperfect statement of the legal theory supporting jurisdiction does not itself defeat jurisdiction.” Id.

Second, the Court observed that, to satisfy general diversity jurisdiction, Plaintiff must be able to show that Plaintiff is a citizen of a different state than Defendant and “the amount in controversy exceeds $75,000, exclusive of interest and costs.” Id. Under the CAFA, an LLC, like Defendant, is “a citizen of the State where it has its principal place of business and the State under whose laws it is organized.” Id. Under the general diversity statute, on the other hand, an LLC is a citizen “of every state of which any member is a citizen.” Id. The Court concluded that the Complaint did not include any allegations of Defendant’s “member’s identity or citizenship.” Id. As such, the Court could not determine whether “any member is a citizen of the same state as Phelps.” Id. Because the Complaint did not allege facts sufficient for the Court to conclude that “complete diversity between the parties” existed, the Court dismissed the case without prejudice. Id.

In sum, the Court concluded that, to establish diversity jurisdiction, a Complaint must adequately allege the citizenship of all parties. Id. Plaintiff’s failure to plead the citizenship of all Defendant’s members was, therefore, fatal to her claims. Id. at 3

Implications For Employers

The Court’s ruling in Phelps serves as a reminder of the distinctions between the the CAFA’s minimal diversity jurisdiction requirement and general diversity jurisdiction. While Plaintiff’s Complaint may have included sufficient facts to establish Defendant’s citizenship under the CAFA, the Complaint could not support the more demanding “complete” diversity jurisdiction requirement under 28 U.S.C. § 1332(a).

This case highlights an important procedural defense available to employers, particularly if the named corporate entity in the litigation is a limited liability company (rather than a traditional corporation, who’s citizenship is tied to its state of incorporation and principal place of business). Employers should take note of a plaintiff’s burden to sufficiently establish federal subject matter jurisdiction at the outset of the litigation, and the accompanying procedural defenses they might avail themselves of when a plaintiff fails to sufficiently plead the jurisdictional prerequisite.

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.