Author: Gerald L. Maatman, Jr.

By Gerald L. Maatman, Jr.

Duane Morris Takeaway: Government enforcement litigation is similar in many respects to class action litigation. In lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC), as well as the U.S. Department of Labor (DOL), government enforcement claims typically involve significant monetary exposure, numerous claimants, and complex procedures. These types of lawsuits most often pose reputational risks to companies.

Watch the video below to hear all about this trend with partner and DMCAR editor Jerry Maatman:

As the White House shifts from blue back to red, the incoming Trump Administration has promised less government oversight of business and less regulation, thereby signaling less government enforcement litigation. Change, therefore, is inevitable.

Although agencies like the EEOC will retain their democratic majorities until 2026, President Trump ran on a platform that runs counter to many of the “emerging issues” on the EEOC’s current priority list, signaling a future realignment if not an “about face” on the horizon. Consistent with the precedent established by the Biden Administration, President Trump will appoint new general counsel of the EEOC as well as the NLRB as the new administration settles into place, thus having an immediate influence on the enforcement trajectory of the agencies.

Historically, the EEOC and DOL are among the most aggressive federal agencies in terms of prosecuting government enforcement litigation. In the face of change and a reduction in such enforcement litigation, companies can expect the private plaintiffs’ bar “to fill the litigation void.”

Litigation And Settlement Trends

In FY 2024 (October 1, 2023, to September 30, 2024), the EEOC’s litigation enforcement activity showed a notable decrease in filings in a year of transition for America.

Although the total number of lawsuits filed by the EEOC decreased from 144 in 2023 to 110 in FY 2024, the EEOC’s targeted efforts involve a bevy of September filings concerning discrimination allegations against employers across myriad industries.

Each year, the EEOC’s fiscal year ends on September 30, and the final sprint for EEOC-initiated litigation in September 2024 aligned with prior “last-month” enforcement efforts.

This past year, 67 lawsuits were filed in September, equal to the 67 filed in September of FY 2023.

As with other fiscal years, the EEOC’s filing patterns remained consistent through June 2024, with a slight increase in July 2024, another slight increase in August 2024, and significant jump in September 2024.

Of the 110 total filings this year, more than half – 67 total – were filed in September. The following chart shows the EEOC’s filing pattern over FY 2024:

Comparing these fiscal filings in FY 2024 to previous years, a significant decrease exists from FY 2023 (144 lawsuits), which was an outlier in terms of EEOC litigation in the post-COVID era. The following graph shows the EEOC’s year-over-year fiscal year filings beginning in FY 2017 through FY 2024:

Lawsuit Filings Based On EEOC District Office

In addition to tracking the total number of filings, the litigation filing patterns of the EEOC’s 15 district offices are telling. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district offices over the course of FY 2024.

In FY 2024, Philadelphia had the most filings with 14, followed by Atlanta, Chicago, and Indianapolis with 11 each, followed by Phoenix with 9 filings, Charlotte, Houston, and New York with 7 each, and Birmingham, Miami, and San Francisco with 6 filings each. Dallas, Memphis, and St. Louis had 5 filings. Notably, Los Angeles had no filings.

While filings across the board were down, the most noticeable trend of FY 2024 was the filing jump in Atlanta (11 lawsuits), compared to FY 2023 where Atlanta had 9 fillings.

In contrast, Philadelphia had a significant decrease in filings (14 lawsuits), compared to FY 2023 where Philadelphia amassed 19 filings.

Like FY 2023, Chicago and Indianapolis remained steady near the top of the list again with 11 filings each, down from the 13 filings both districts launched in FY 2023.

On the opposite end of the spectrum, New York filings (7 lawsuits) fell slightly compared to its 10 filings in FY 2023, and Los Angeles (0 lawsuits) significantly fell compared to its 10 filings in FY 2023.

Although filing trends were down for all Districts, the 110 total filings demonstrate the EEOC maintained its litigation strength, both at the national and regional level.

Lawsuit Filings Based On Type Of Discrimination

In terms of the statutes and theories of discrimination alleged by the EEOC over the past year, several trends emerged, so as to determine how the EEOC is shifting its strategic priorities.

When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent in comparing FY 2024 and FY 2023. As can be seen from the graph, Title VII cases once again made up the majority of cases filed, as they constituted 61% of all filings in FY 2024 (significantly down from 68% of all filings FY 2023, down from the 69% filings in FY 2022, and equal to 61% in FY 2021).

Overall, ADA cases also made up a significant percentage of the EEOC’s FY 2024 filings – totaling 41%. This is an overall increase in previous years where ADA filings amounted to 34% in FY 2023, 29.7% in FY 2022, and just below the 37% in FY 2021.

There was also a downward trend in ADEA filings, as 7 ADEA cases were filed in FY 2024, after 12 age discrimination cases were filed in FY 2023 and 7 age discrimination cases filed in FY 2022. However, unlike FY 2023, this past year the EEOC filed four Pregnant Worker’s Fairness Act cases (PWFA) after the PWFA went into effect on June 27, 2023.

These graphs show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, Age Discrimination in Employment Act, Pregnant Worker’s Fairness Act, and Genetic Information Nondiscrimination Act) and, the graph above shows the basis of discriminatory allegations.

Lawsuits Filings Based On Industry

In monitoring the EEOC’s filings by industry, FY 2024 mirrored EEOC-initiated lawsuits in the top three industries compared to FY 2023, thereby demonstrating the Commission’s focus on a few major industries.

Three industries were the primary targets of lawsuit filings in FY 2024, including Hospitality (Restaurants / Hotels / Entertainment) with 23 filings, Healthcare with 22 filings, and Retail with 21 filings.

The next set of industries did not amount to double-digit filings, but are still well within the EEOC’s sights, including Manufacturing with 11 filings; Logistics with 7 filings; Construction with 4 filings; and Property Management with 3 filings.

This aligns with FY 2023, where Hospitality (primarily Restaurants) was the industry at large with 28 filings. In second and third place were Retail and Healthcare, respectively, with 24 filings. Absent from FY 2024’s industry-based filings, however, were Automotive, Security, and Technology.

Systemic Lawsuits

The EEOC exhibited a renewed focus on systemic discrimination lawsuits this past year. “Systemic” discrimination, according to the EEOC, involves an alleged “pattern or practice, policy and/or class … where the discrimination has broad impact on an industry, profession, company, or geographic location.” These sorts of lawsuits are the most challenging and serious type of government enforcement litigation that companies face.

The EEOC filed 13 systemic lawsuits in FY 2024. By comparison, it brought 25 systemic lawsuits in FY 2023, nearly double the number it filed in each of the prior four years.

The 25 systemic lawsuits filed by the EEOC in FY 2023 likewise constituted the largest number of systemic filings in the past five years.

The graphic shows this year-over-year filing trend:

While these numbers continue to climb, they do not yet reflect the activity that employers observed prior to FY 2018. By the end of FY 2018, the EEOC had 71 systemic cases on its active docket, two of which included over 1,000 victims, and systemic cases accounted for 23.5% of its active docket in that year.

Strategic Priorities

Every few years the EEOC prepares a Strategic Enforcement Plan to focus and coordinate the agency’s work and identify subject matter priorities. This past year, the EEOC released its Strategic Enforcement Plan for Fiscal Years 2024-2028.

In the 2024-2028 Strategic Enforcement Plan, the EEOC identified three guiding principles. First, the Commission states that to maximize the EEOC’s effectiveness, it will focus on those activities that have the greatest strategic impact, including systemic investigations, resolutions, and lawsuits. The EEOC thus “reaffirms its commitment to a nationwide, strategic, and coordinated systemic program as one of the EEOC’s top priorities.”

Second, the EEOC states that it will take an integrated approach at the agency that promotes collaboration, coordination, and information sharing throughout the agency. It explains that “[e]ffective systemic enforcement requires communication and collaboration between the EEOC’s legal and enforcement units, between headquarters and the field, and across EEOC districts.”

Third, the EEOC states that it will ensure that it achieves results “in accordance with the priorities set forth in the [Strategic Enforcement Plan].” This signals that the Commission will continue to emphasize and prioritize the use of systemic, pattern or practice lawsuits to accomplish its agenda.

As in years past, the Strategic Enforcement Plan also sets out the EEOC’s six substantive priorities.

#1 – Eliminating Barriers In Recruitment and Hiring – The EEOC will focus on recruiting and hiring practices that discriminate, including, among other things the use of technology, including artificial intelligence and machine learning, to target job advertisements or assist in hiring decisions; job advertisements that exclude or discourage certain protected groups from applying; and the use of screening tools or requirements that disproportionately impact workers on a protected basis, including those facilitated by artificial intelligence or other automated systems.

#2 – Protecting Vulnerable Workers – The EEOC will focus on harassment, retaliation, job segregation, discriminatory pay, disparate working conditions, among other things, that impact “particularly vulnerable workers,” which include immigrant and migrant workers; people with developmental or intellectual disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; temporary workers; older workers; individuals employed in low wage jobs, including teenage workers; among others.

#3 – Addressing Selected Emerging And Developing Issues – The EEOC will continue to prioritize issues that may be emerging or developing, which includes qualification standards and inflexible policies or practices that discriminate against individuals with disabilities; protecting workers affected by pregnancy, childbirth, or related medical conditions; and addressing discrimination influenced by or arising as backlash in response to local, national, or global events.

#4 – Advancing Equal Pay Protections for All Workers – The EEOC will continue to focus on combatting pay discrimination in all forms. It notes that, because many workers do not know how their pay compares to their co-workers’ pay and, therefore, are less likely to discover and report pay discrimination, the EEOC will continue to use directed investigations and Commissioner Charges to facilitate enforcement.

#5 – Preserving Access to the Legal System – The EEOC will focus on policies and practices that discourage or prohibit individuals from exercising their rights or impede the EEOC’s enforcement efforts, including, among other things, overly broad waivers, releases, or non-disclosure agreements; and unlawful, unenforceable, or otherwise improper mandatory arbitration provisions.

#6 – Preventing and Remedying Systemic Harassment – The EEOC will continue to focus on combatting systemic harassment in all forms. It notes that, with respect to charges and litigation, a claim by an individual or small group may fall within this priority if it is related to a widespread pattern or practice of harassment.

Some – but certainly not all – of the EEOC’s lawsuits initiated over the past year fall into one or more of these six categories. The EEOC’s focus on systemic litigation underlies many of these enforcement priorities. Because the EEOC views systemic cases as having a particular strategic impact, insofar as they affect how the law influences a particular community, entity, or industry, companies should brace for the expansion of these cases.

What’s Next For The EEOC?

Now that the EEOC has a majority of Democratic-appointed Commissioners firmly in place, along with a significantly increased proposed budget, we expect that the Commission is posed for continued expansion of enforcement activity in 2024.

Moving into FY 2025, the EEOC’s budget includes a $33.221 million increase from 2024, and prioritizes five key areas, including advancing racial justice and combatting systemic discrimination on all protected bases, particularly with respect to vulnerable workers; advancing pay equity; addressing the use of artificial intelligence in employment decisions; providing information to assist employers that chose to undertake lawful approaches to fostering diversity, equity, inclusion, and accessibility (DEIA) in their workplaces; and preventing unlawful retaliation and harassment.

The EEOC also maintained its FY 2024 goals for its own Diversity, Equity, Inclusion, and Accessibility (DEIA) program where it seeks to achieve four goals, including workplace diversity, employee equity, inclusive practices, and accessibility. Additionally, the EEOC continues to emphasize and build upon its FY 2021 software initiatives addressing artificial intelligence (AI), machine learning, and other emerging technologies in continued efforts to provide guidance. The EEOC notably recognized that AI systems may offer new opportunities for employers but cautioned AI’s potential to facilitate discrimination. Finally, the joint anti-retaliation initiative among the EEOC, the DOL, and the National Labor Relations Board (NLRB) will continue to address retaliation in American workplaces.

But then came the election results of November of this past year.

Employers can expect that the EEOC will be in flux through 2025. The Trump Administration is apt to move to replace policymakers, decrease the Commission’s budget, and deemphasize government enforcement litigation.

In sum, it is expected the Trump Administration will pivot the focus of the EEOC to a more business-friendly posture. Budget cuts instead of increases may be the order of the day.

Department Of Labor Enforcement Year-End Recoveries

The U.S. Department of Labor’s Wage and Hour Division recovered approximately $202.6 million in back wages in FY 2024 and conducted 17,300 compliance actions. By comparison, the DOL secured $212.3 million in back wages in FY 2023 and concluded 20,215 compliance actions. These numbers align with the numbers we saw in FY 2022, in which the WHD recovered $213.2 million in back wages and concluded 20,422 compliance actions. The number of compliance actions, and the subsequent back wages recoveries in FY 2022-23 was measurably lower than in FY 2021 and FY 2020. In FY 2021, the WHD concluded 24,746 compliance actions and recovered $232.4 million in back wages and in 2020 it concluded 26,096 compliance actions and recovered $257.8 million in back wages.

The agency imposed civil money penalties to employers at a 10-year-high of $25.8 million for violations of federal labor laws in FY 2023. This was the highest number in a decade and was significantly higher than the penalties assessed in 2022 ($21.6 million), 2021 ($20.4 million), and 2020 ($17.9 million).

In FY 2024, civil money penalties exploded to $35.92 million (as specified at Civil Money Penalties Assessed) for violations of federal labor laws. Although FY 2023 was an outlier yielding the highest number for penalties assessed in a decade, FY 2024 exceed the penalties assessed by nearly an additional $10 million. This stark rise in assessed penalties for violations of federal labor laws can partially be attributed to the DOL’s Civil Penalties Inflation Adjustment Act Annual Adjustment for 2024 final rule that was published in January 11, 2024. FY 2024 and FY 2023 civil money penalties contrast with previous penalty assessments previously seen in 2022 ($21.6 million), 2021 ($20.4 million), and 2020 ($17.9 million).

By Gerald L. Maatman, Jr.

Duane Morris Takeaway: PFAS class actions inspired some of the most attention-grabbing headlines this past year across the legal landscape. PFAS, or per- and polyfluoroalkyl substances, are a group of manmade chemicals that are resistant to oil, water, and heat. They are used in many consumer and industrial products and are commonly called “forever chemicals” because of their persistence, meaning they do not break down easily in the environment.

See the video below with Duane Morris partner and DMCAR editor Jerry Maatman to learn more about this trend:

PFAS generated the largest class action settlement in 2024, which came in at more than twice the next highest settlement, which also involved PFAS, and generated an attorneys’ fee award of nearly one billion dollars. These numbers are going to inspire a continued wave of PFAS class actions, as the plaintiffs’ class action bar targets more companies with claims that their products or packaging contained PFAS, and those companies, in turn, search for claims against their material suppliers.

Numbering in the thousands, PFAS are found in consumer, commercial, and industrial products, and due to their presence in so many products, it is challenging to assess the health impact of PFAS. In recent years, the U.S. Environmental Protection Agency (EPA) has issued a number of guidelines regarding PFAS in drinking water. Meanwhile, the EPA has undertaken efforts to understand how to remediate, manage, and dispose of PFAS present in drinking water supplies more efficiently.

In 2024, PFAS regulations from another six states went into effect and will continue in 2025, including Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. The graphic outlines these regulations.

The discovery of PFAS in drinking water has spurred states attorneys general to bring lawsuits on behalf of their constituents seeking to impose liability relating to drinking water contamination on the PFAS manufacturers and asserting claims under various products liability and negligence laws.

In April 2024, the EPA finalized a rule setting the first-ever limits for PFAS in drinking water. The rule already is subject to multiple legal challenges. In October 2024, the White House Office of Science and Technology Policy said in a report that it will continue to look for new technologies to remove so-called forever chemicals from the environment and find safe alternatives for the substances.

Since 2018, more than 300 lawsuits have been filed over PFAS contamination, with many suits being consolidated in the South Carolina-based MDL focused on the chemicals in aqueous film-forming foam used in firefighting applications. On March 29, 2024, the court granted final settlement approval of $10.3 billion in In Re Aqueous Film-Forming Foams Product Liability Litigation, MDL 2873 (D.S.C. Mar. 29, 2024), to resolve claims for the damage allegedly incurred from using PFAS for decades in specialized fire suppressants, called aqueous film-forming foams, that were sprayed directly into the environment and reached drinking water.

These numbers are likely to inspire a continued wave of PFAS class actions, as the plaintiffs’ class action bar targets more companies with claims that their products or packaging contained PFAS, and those companies, in turn, search for claims against their material suppliers. In November 2024, for example, Mohawk, the world’s largest flooring manufacturer sued 3M Co., E.I. de Pont de Nemours and Co., The Chemours Co., and Daikin America alleging that these chemical manufacturers lied about the dangers of forever chemicals in their products. Mohawk alleges that it purchased oil-resistant carpet treatment products from the chemical manufacturers for decades without the manufacturers disclosing that the products contained PFAS and that the manufacturers wrongly concealed internal studies regarding the dangers of PFAS. Mohawk alleges that it has been named in a series of lawsuits, already has paid over $100 million to settle some of the claims, and seeks to pass the cost of those settlements onto the defendants.

While the plaintiffs’ bar has been filing lawsuits for over two decades over alleged health and environmental consequences associated with PFAS, as of late the types of plaintiffs and defendants, as well as the types of claims, have multiplied and evolved. Many recent PFAS plaintiffs have filed their class actions against consumer product manufacturers under consumer fraud statutes and other misrepresentation theories. Most of these PFAS class actions have not yet advanced to the class certification stage. Class certification theories remain a work in progress for plaintiffs, as most PFAS class actions to date have involved settlements and motions to dismiss.

In 2024, we saw numerous rulings on motions to dismiss, with the plausibility of plaintiffs’ claims often turning on the nature of defendants’ alleged misrepresentations, specificity and content of plaintiffs’ allegations regarding the nature of the testing they performed on the alleged products, temporal proximity of purchases to testing, and test results. Rulings in this area of the law have been numerous and mixed. Compare, e.g., Lowe, et al. v. Edgewell Personal Care Co., 2024 U.S. Dist. LEXIS 7238(N.D. Cal. Jan. 12, 2024) (dismissing PFAS class action because plaintiffs’ allegations regarding their independent testing for presence of PFAS in consumer product lacked specificity); Bounthon, et al. v. Procter & Gamble Co., 2024 WL 4495501, at *2-3, 7-10 (N.D. Cal. Oct. 15, 2024) (dismissing PFAS class action, finding the alleged reliability of plaintiffs’ total organic flourine analysis refuted by plaintiffs’ own allegations and finding implausible plaintiffs’ allegations that 30 parts per million of PFA are harmful); Onaka, et al. v. Shiseido Americas Corp., 2024 WL 1177976, at *3 (S.D.N.Y. Mar. 19, 2024) (dismissing PFAS class action because plaintiffs failed to allege their testing was near in time to their purchases); with Winans, et al. v. Ornua Foods Inc., 2024 WL 1741079, at *5 (E.D.N.Y. Apr. 23, 2024) (finding that whether FDA regulations exempting insignificant levels of incidental food additives from disclosure preempted consumer’s omission-based claims regarding PFAS was question of fact not amenable to motion to dismiss), Hicks, et al. v. L’Oreal U.S.A., Inc., 2024 WL 4252498, at *11 (S.D.N.Y. Sept. 19, 2024) (denying in part and granting in part motion to dismiss and finding plaintiffs’ alleged testing sufficient to “allow for the plausible inference at this stage that there was a pervasive PFAS presence in the Products”).

Given the settlement numbers to date, companies can expect PFAS to generate more filings in the coming year as plaintiffs seek a share of the PFAS treasure chest and their targets, in turn, seek to pass costs down the chain.

By: Gerald L. Maatman, Jr.

Duane Morris Takeaway: Despite another tumultuous year of rulings, the arbitration defense remained one of the most powerful weapons in the class action defense toolkit. A defendant’s ability to enforce an arbitration agreement containing a class or collective action waiver continues to reign as one of the most impactful defenses in terms of shifting the pendulum of class action litigation. The U.S. Supreme Court cleared the last hurdle to widespread adoption of such agreements with its decision in Epic Systems Corp. v. Lewis, et al., 138 S. Ct. 1612 (2018). In response, more companies of all types and sizes updated their onboarding systems, terms of use, and other types of agreements to require that employees and consumers resolve any disputes in arbitration on an individual basis.

Watch Review Editor Jerry Maatman explain this trend below:

To date, companies have enjoyed a high rate of success enforcing those agreements and using them to thwart class actions out of the gate. In 2024, although defendants continued to win most motions to compel arbitration filed, their margin of victory dwindled. Across substantive areas of class action litigation, courts issued rulings on approximately 167 motions to compel arbitration over the past year. Defendants prevailed in 91 of those rulings, a success rate of approximately 54%. These numbers are lower than the numbers we saw in 2023, where courts issued rulings on 187 motions to compel arbitration, and defendants prevailed on 123 motions, which translated into a success rate of 66%.

Given the potency of the arbitration defense, the plaintiffs’ class action bar has continued to press potential exceptions to its coverage, including the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act or EFAA) and the transportation worker exemption to the FAA. Over the past year, plaintiffs made significant strides on both fronts as courts issued a mixed bag of rulings. Plaintiffs continued to assert the EFAA to avoid arbitration of cases containing claims for alleged sexual harassment. And, despite the U.S. Supreme Court’s guidance, many lower federal courts continued to apply the transportation worker exemption in a broad manner to workers who handled goods that moved in interstate commerce, irrespective of whether they played a direct role in transporting the goods across borders, such as last-mile delivery drivers, warehouse workers, and local distributors.

1. The Continued Impact Of The EFAA

The EFAA amended the FAA and provided plaintiffs the discretion to avoid pre-dispute arbitration provisions in cases where they allege conduct constituting “a sexual harassment dispute or a sexual assault dispute” or are the named representatives in “a class or in a collective action alleging such conduct.” In other words, the Act does not render arbitration agreements invalid but allows plaintiffs bringing sexual assault or sexual harassment claims to elect to avoid the agreements and to bring their cases in court instead of arbitration.

In 2024, plaintiffs asserted the EFAA as a defense to approximately 47 motions to compel arbitration. Plaintiffs succeeded in enforcing the EFAA and keeping claims in court, in whole or in part, in approximately 27 of those rulings, or 57.4%. More than two years after the law’s effective date, courts are continuing to define its parameters, and rules regarding the law’s application are taking shape in multiple areas, the majority of which are coming out in favor of a broad application of the EFAA, making it easier for plaintiffs to avoid arbitration.

When Do Claims Arise?

Although by its terms the EFAA applies to any “dispute or claim that arises or accrues” on or after its enactment on March 3, 2022, courts have adopted varying interpretations of this language. Multiple decisions in 2024 showed that courts are receptive to arguments that the EFAA applies to conduct that occurred prior to the effective date of the Act so long as the plaintiffs file their charges or lawsuits after March 3, 2022.

In Famuyide, et al. v. Chipotle Mexican Grill Inc., 2024 U.S. App. LEXIS 19449 (8th Cir. Aug. 5, 2024), for example, the Eighth Circuit took a broad view as to when a dispute “arises” for purposes of the Act. A former employee claimed that a co-worker raped her at work in 2021, months before the EFAA took effect. The Eighth Circuit, however, held that the dispute arose when the plaintiff filed her lawsuit in court in July 2022 and not when the sexual assault occurred in 2021 or even when her attorneys sent a demand letter to the defendant in February 2022 because the demand letter was not a “conflict or controversy between the parties.” Id. at *6.

Similarly, in Kader, et al. v. Southern California Medical Center Inc., 2024 Cal. App. LEXIS 50 (Cal. App. 2d Dist. Jan. 29, 2024), the Second Appellate District for the California Court of Appeal found that a dispute arose when the plaintiff filed charges with the Department of Fair Employment and Housing. An executive brought claims for sexual misconduct, as well as discrimination, retaliation, and defamation against a medical center alleging that it employed a doctor who sexually assaulted him. The defendant moved to compel arbitration based on an agreement that the plaintiff signed in 2019. The Court of Appeal concluded that the date a dispute arises “depends on the unique facts of each case” but that “a dispute does not arise merely from the fact of injury.” Rather, “[f]or a dispute to arise, a party must first assert a right, claim, or demand.” Id. at *5.

What About Allegedly Continuing Violations?

In 2024, the Second Circuit weighed in on the impact of plaintiffs’ alleging “continuing violations,” again in a way consistent with a broad interpretation of the EFAA. In Olivieri, et al. v. Stifel, Nicolaus & Company, 112 F.4th 74 (2d Cir. 2024), the Second Circuit held that the EFAA shields claims from arbitration where the plaintiff alleges that the misconduct continued past the effective date of the law. Although the plaintiff alleged that she began experiencing a retaliatory hostile work environment before the effective date of the Act, and filed suit in January 2021, she claimed that the continuing course of conduct persisted after enactment of the EFAA, and, therefore, her claims were covered under the EFAA through the continuing violation doctrine. The Second Circuit agreed. The Second Circuit held that, while the plaintiff’s claim did accrue before the EFAA went into effect given that she filed suit in January 2021, her claims continued to accrue again with each act she alleged added to the hostile work environment. The Second Circuit reasoned that, “[i]f Congress wanted the EFAA to apply only to claims that ‘first’ accrue after its enactment, it could have said so.” Id. at 89.

Does The EFAA Shield Tag-Along Claims?

The scope of the EFAA has been a hotly contested issue in terms of the breadth of its arbitration shield and whether it applies to all claims asserted by a plaintiff or only the sexual assault or sexual harassment claims. In October 2024, California’s Second Appellate District held in Yongtong Liu, et al. v. Miniso Depot CA Inc., 105 Cal. App. 5th 791 (Cal. App. 2d Dist. 2024), that the EFAA extends to a plaintiff’s entire employment case, including a plaintiff’s wage claims, shielding them from arbitration. A human resources employee brought suit against an employer alleging that the CEO made inappropriate comments regarding her appearance and sexual orientation. The employee also asserted wage & hour claims for alleged misclassification, unpaid overtime, and minimum wage violations. The EFAA states, in relevant part, that “no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the . . . sexual harassment dispute.” 9 U.S.C. § 402(a) (emphasis added). Focusing on the statute’s use of the word “case,” the appellate court ruled that the EFAA “makes the parties’ arbitration agreement unenforceable as to [plaintiff’s] entire case.” Such ruling runs counter to others, including the June 2023 decision in Mera v. SA Hospitality Group LLC, 675 F. Supp. 3d 442, 448 (S.D.N.Y. 2023), wherein a federal magistrate judge ruled that, although a restaurant chain could not force a plaintiff to arbitrate his sexual harassment claims, it could force him to arbitrate his wage & hour overtime claims because they “do not relate in any way to the sexual harassment dispute.”

Companies should anticipate continued development of these and other novel issues as we continue further past the enactment date and plaintiffs continue to shift their interest toward the EFAA’s arbitration shield.

#2. The Impact Of The Transportation Worker Exemption

In one of the largest door-openers to the courthouse for the plaintiffs’ class action bar, courts have issued a runaway train of rulings that position the transportation worker exemption to swallow up the FAA for workers who move or contribute to the movement of goods. Section 1 of the FAA exempts from arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The third category commonly is called the “transportation worker” exemption. Although the U.S. Supreme Court has instructed lower courts to interpret the transportation worker exemption “narrowly,” its parameters have carved a slippery slope for lower courts.

In Southwest Airlines Co. v. Saxon, et al., 142 S.Ct. 1783 (2022), the U.S. Supreme Court applied the transportation worker exemption to an airport ramp supervisor. Although it held that the exemption requires direct involvement in the transportation of goods across state or international borders, it had no problem finding the plaintiff part of such a class: “We have said that it is ‘too plain to require discussion that the loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically a part of it.’ . . . We think it equally plain that airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods.” Id. at 1789.

This ruling set off a barrage of decisions finding individuals who touch goods that move in interstate commerce, or the means of transport for such goods, subject to the exemption. As a result, in April 2024, the U.S. Supreme Court took up Bissonnette, et al. v. LePage Bakeries Park Street, LLC, 61 U.S. 246 (2024). As in Saxon, the U.S. Supreme Court emphasized that the test for application of the transportation worker exemption focuses on the work performed by the plaintiff and not the employer’s industry. Addressing the employer’s argument that its test would fold virtually all workers who load or unload goods, such as pet shop employees and grocery store clerks, into the exemption, the Supreme Court stated that the exemption has “never” been interpreted to apply in “such limitless terms.” Id. at 256. For the exemption to apply, the worker “must at least play a direct and necessary role in the free flow of goods across borders.” Id.

The Bissonnette decision appears to have had a smaller impact on the lower courts, which issued opinions before and after Bissonette that broadly construe the transportation worker exemption.

In May, for example, the California Court of Appeal in Peters, et al. v. SDLA Courier Services, 2024 Cal. App. Unpub. LEXIS 2954 (Cal. App. 2d Dist. May 14, 2024), found the plaintiff, a delivery driver who made only local deliveries of Amazon products, an exempt transportation worker. The plaintiff filed a class action alleging that the defendant violated various provisions of the California Labor Code, and the defendant moved to compel arbitration of the plaintiff’s individual claims and to dismiss the class claims. The trial court denied the motion, finding the FAA inapplicable because the plaintiff was a “last-leg delivery driver” and “engaged in interstate commerce.” Id. at *2. The Court of Appeal affirmed, reasoning that, but for the plaintiff and those like her, the packages would not get delivered to customers.

The Ninth Circuit also applied the transportation worker exemption broadly in three of its decisions this past year, both before and after Bissonette.

On March 12, 2024, in perhaps the most aggressive application to date, the Ninth Circuit ruled in Ortiz, et al. v. Randstad Inhouse Services, LLC, 95 F.4th 1152 (9th Cir. 2024), that the plaintiff, a warehouse equipment operator responsible for moving packages to and from warehouse racks, qualified as a transportation worker. After plaintiff filed a class action for alleged wage & hour violations, the defendant moved to compel arbitration, and the district court denied the motion. The Ninth Circuit affirmed. It found that the plaintiff “actively engaged” in transportation because he “ensured that goods would reach their final destination by processing and storing them while they awaited further interstate transport.” Id. at 1162. Further, it found that the plaintiff “actively engaged” with transportation because he handled goods “as they went through the process of entering, temporarily occupying, and subsequently leaving the warehouse.” Id.

On July 19, 2024, the Ninth Circuit affirmed the district court’s ruling in Lopez, et al. v. Aircraft Service International, Inc., 107 F.4th 1096 (9th Cir. 2024). The plaintiff, a fueling technician at Los Angeles International Airport, initiated a wage and hour class action against his employer, who moved to compel arbitration. The district court denied the motion. It reasoned that, although the plaintiff did not handle goods in commerce, he was directly involved in the maintenance of the means by which the goods were transported. The Ninth Circuit affirmed. Although the plaintiff did not have any hands-on contact with goods or any direct participation in their movement, the Ninth Circuit reasoned that the plaintiff’s work fueling airplanes was a “vital component” of the plane’s ability to fly. Id. at 1101.

On September 11, 2024, the Ninth Circuit issued another broad ruling in Nair, et al. v. Medline Industries, LP, 2024 WL 4144070 (9th Cir. Sept. 11, 2024). There, the plaintiff was a California warehouse operator who worked on a shipping dock stacking pallets and wrapping them in saran wrap. The plaintiff alleged that a driver told her that he made out-of-state deliveries and that a training video showed her employer shipping medical supplies throughout the country. The Ninth Circuit affirmed the district court’s order denying a motion to compel arbitration, noting that the employer had done nothing to rebut the plaintiff’s evidentiary showing that she packaged and loaded goods that traveled in interstate commerce. Justice Ryan Nelson’s concurrence cautioned that the Ninth Circuit needed to ground its decisions in the statutory text of the transportation worker exemption rather than through “judicially created tests [that] risk taking on a life of their own.” Id. at *2.

The U.S. District Court for the District of Colorado followed this line of reasoning and issued a similar ruling in Rietheimer, et al. v. United Parcel Service Inc., No. 23-CV-477 (D. Colo. Nov. 13, 2024). The plaintiff, a last-mile delivery driver, filed a class action, and the defendant moved to dismiss the class claims and compel individual arbitration. The court ruled that the plaintiff and other last-mile delivery drivers like him were engaged in interstate commerce within the meaning of the transportation worker exemption. The court explained that, although the plaintiff did not directly transport goods across state lines, a significant portion of the packages he handled came from out of state, and his role was integral to the final step in the interstate delivery process. It reasoned that the packages the plaintiff delivered were part of an ongoing interstate transaction and thus concluded that he was directly involved in the free flow of goods across state borders. Given the enduring impact that the arbitration defense has in class action litigation, companies are apt to face additional hurdles from creative workarounds from the plaintiffs’ class action bar as courts continue to push the boundaries of the transportation worker exemption.

By Gerald L. Maatman, Jr.

Duane Morris Takeaway:  As authors and editors of our firm’s our Class Action Review, we identified ten (10) key trends in class action litigation over the past year. Trend # 1 focuses on the unprecedented number of massive class action settlements reached in the last 12 months. Aside from the Big Tobacco settlements nearly two decades ago, 2022, 2023, and 2024 have marked the most extensive set of billion-dollar class action settlements in the history of the American court system.

In today’s video blog, Duane Morris partner Jerry Maatman discusses how the aggregate monetary value of class action settlements continued to reach incredible highs in 2024, as plaintiffs’ lawyers and government enforcement agencies monetarized their claims into enormous settlement values. In 2024, the plaintiffs’ bar was successful in converting case filings into significant settlement numbers again. Tune in below to hear all about this or read the blog post blow for more information.

In 2024, settlements reached the $40 billion mark for the third year in a row. The cumulative value of the highest ten settlements across all substantive areas of class action litigation totaled $42 billion. That number is the third highest value we have tallied in the last two decades, trailing only the settlement numbers from 2023 and 2022. In 2023 settlements totaled $51.4 billion, and in 2022, settlements totaled $66.0 billion. Combined, the past three years of $159.4 billion reflect use of the class action mechanism to redistribute wealth at an unprecedented level.

These gargantuan settlements yielded extraordinary and record-setting attorneys’ fee awards. On April 23, 2024, U.S. District Judge Richard Gergel of the U.S. District Court for the District of South Carolina awarded more than $956 million in attorneys’ fees to plaintiffs’ lawyers who secured two settlements worth more than $11 billion with four manufacturers of “forever chemicals” that allegedly polluted drinking water in the United States with per- and polyfluoroalkyl substances, or PFAS. Numbers like this explain at least in part why we are continuing to see the plaintiffs’ class action bar grow in numbers and expand its reach as lawyers clamor to identify the next “tort of the day.”

On an aggregate basis, across all areas of litigation, class actions and government enforcement lawsuits garnered more than $42 billion in settlements in 2024. The largest 20 settlements during 2024 are in the chart below. The total for the top 20 settlements in 2024 was $34.6 billion.

Such numbers fall slightly short only of the numbers we tallied in 2022 and 2023. The value of class actions and government enforcement settlements in 2022 topped $66 billion, and the value in 2023 topped $51 billion. Combined, the three-year settlement total eclipses any other three-year period in the history of American jurisprudence.

As to settlements of one billion dollars or more, in 2024, parties agreed to resolve ten class actions for $1 billion or more. These settlements include the following:

The number of billion dollar settlements in 2024 surpassed the number in 2023, falling short only of the number of billion-dollar settlements in 2022. In 2023, parties resolved nine class actions for $1 billion or more. In 2022, parties resolved 15 class actions for $1 billion or more in settlement dollars. Together, corporations have seen 34 settlements of one billion dollars or more in three years. This string of settlements marks the most extensive set of billion-dollar class action settlements in the history of the American court system.

In 2024, rich settlement numbers spanned nearly every area of class action litigation. The following shows the cumulative value of the ten highest settlements in each key area of class action litigation:

The value of the ten highest settlements in the privacy, data breach, and labor areas increased in 2024, reflecting the growth of class action litigation in these areas, as they account for a higher percentage of the overall total. By contrast, the value of the ten highest settlements in antitrust, discrimination, civil rights, and FCRA class actions decreased to less than 50% of their 2023 totals.

Particularly when viewed in conjunction with the settlement values observed in 2022 and 2023, the settlement numbers in 2024 confirm that we have entered and are operating in a new era of enhanced class action risks. Corporations should expect these numbers to continue to incentivize the plaintiffs’ class action bar to be equally if not more aggressive with their case filings and settlement positions in 2025.

While settlements have been particularly robust over the past three years, the number of class action filings have been relatively stable and are down slightly overall in 2024.

There has been a steady increase in areas such as data privacy, with heightened concerns about cybersecurity and consumer data protection driving lawsuits. Additionally, the COVID-19 pandemic sparked a rise in class actions related to health and safety protocols, insurance claims, and employee rights. Overall, the legal landscape has grown more complex, with plaintiffs and defendants navigating a more dynamic and often contentious environment, and often leading to massive settlement opportunities for plaintiffs.

Duane Morris Takeaway: Corporations should expect such numbers to incentivize the plaintiffs’ class action bar to be equally if not more aggressive with their case filings and settlement positions in 2025.