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Trend #2 – Class Certification Numbers Normalize Across Substantive Areas

By: Jennifer A. Riley

Duane Morris Takeaway: Although courts issued fewer decisions on motions for class certification in 2024 as compared to 2023, the plaintiffs’ class action bar obtained certification at a more consistent rate across all substantive areas, suggesting that plaintiffs are being more selective in their investments and the cases they pursue through class certification.

Watch Duane Morris partner Jennifer Riley discuss the consistent certification rates in 2024 and what it means for 2025 in the video below:

In 2024, courts issued rulings on 432 motions for class certification, a decrease from 2023, when courts issued rulings on 451 motions for class certification. Of those, courts granted motions for class certification at a lower rate. Courts granted 272 of those motions, for a certification rate of approximately 63%. In 2023, by contrast, courts granted 324 motions for class certification, for a certification rate of approximately 72%.

Although the certification rate overall was lower, plaintiffs obtained certification at a more consistent rate across substantive areas, from a low of 33% in the RICO area, to a high of approximately 86% in the WARN areas. By contrast, in 2023, the numbers varied more substantially across substantive areas, from a low of 14% in the data breach area, to a high of 97% for securities fraud.

Plaintiffs Continued To Certify Cases At High Rates

    In 2024, plaintiffs succeeded in certifying class actions at a high rate. Across all major types of class actions, courts issued rulings on 432 motions to grant or to deny class certification in 2024. Of these, plaintiffs succeeded in obtaining or maintaining certification in 272 rulings, an overall success rate of approximately 63%.

    The numbers show that, when compared to 2023, plaintiffs filed fewer motions for class certification in 2024, and succeeded in certifying fewer classes in 2024.

    By comparison, in 2023, courts issued rulings on 451 motions to grant or deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 324 rulings, with an overall success rate of 72%. In 2022, courts issued rulings on 335 motions to grant or to deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 247 rulings, an overall success rate of nearly 74%.

    In 2024, the number of motions that courts considered varied significantly by subject matter area, and the number of rulings varied across substantive areas. The below chart summarizes these results in each of the key areas of class action litigation (sorted by plaintiffs’ success rate).

    The plaintiffs’ bar obtained the highest rates of success in WARN Act, wage & hour, securities fraud, and antitrust class actions. In cases alleging claims for violation of the WARN Act, plaintiffs succeeded in obtaining orders certifying classes in six of seven rulings issued during 2024, a success rate of 85.7%. In wage & hour class and collective actions, plaintiffs succeeded in obtaining first-stage certification orders in 124 of 156 rulings issued during 2024, a success rate of 79.5%. In cases alleging antitrust violations, plaintiffs succeeded in obtaining orders certifying classes in 15 of 21 rulings issued during 2024, a success rate of 71.4%.

    Although the certification rate overall was lower, as discussed above, moving down to 63% in 2024 from 72% in 2023, plaintiffs obtained certification at a more consistent rate across substantive areas. In 2024, plaintiffs succeeded in certifying cases alleging WARN Act violations at a rate of 85.7%, their highest rate of success among substantive areas. Plaintiffs succeeded in certifying cases alleging RICO violations at a rate of 33.3%, their lowest rate of success across substantive areas. Compared to 2023, these numbers reflect less variance across substantive areas.

    In 2023, plaintiffs succeeded in certifying cases alleging securities fraud at a rate of 97.2%, their highest rate of success among substantive areas. Plaintiffs succeeded in certifying cases alleging data breach claims at a rate of 14.3%, their lowest rate of success across substantive areas.

    The year over year compression suggests that plaintiffs were more selective during 2024 relative to the cases in which they sought class certification, particularly at the low end.

    In 2024, for example, the number of rulings on motions for class certification in the data breach area dropped to four, a decrease of 42.9%, but plaintiffs fared better on those four, going two for four, for a success rate of 50.0%.

    Courts Issues More Rulings In FLSA Collective Actions Than In Any Other Area Of Law

      In 2024, courts issued more certification rulings in FLSA collective actions than in any other type of case. Many courts historically have applied a more lenient standard to such motions, allowing plaintiffs to increase the size of their cases with comparatively low investment, contributing to the number of filings in this area.

      Overall, courts issued 171 rulings. Of these, 156 addressed motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions for decertification of collective actions. Of the 167 rulings that courts issued on motions for conditional certification, 125 rulings favored plaintiffs, for a success rate of nearly 75%.

      Plaintiffs’ success rate at the conditional certification stage outpaced their performance from 2023. In 2023, courts issued 183 rulings. Of these, 165 addressed motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions for decertification of collective actions. Of the 167 rulings that courts issued on motions for conditional certification, 125 rulings favored plaintiffs, for a success rate of nearly 75%.

      The results plaintiffs achieved in 2024 are more similar to the results they obtained in 2022, during which courts issued rulings on 236 motions. Of these, 219 addressed motions for conditional certification of collective actions, and 18 addressed motions for decertification of collective actions. Of the 219 rulings that courts issued on motions for conditional certification, 180 rulings favored plaintiffs, for a success rate of 82%.

      Although success rates stayed high, and climbed closer to the rate observed in 2022, the overall number of rulings declined. This phenomenon likely reflects the impact of the so-called Swales-Clark movement. Until 2021, courts almost universally applied a two-step process to certification of FLSA collective actions. At the first stage, courts required a plaintiff only to make a “modest factual showing” that he or she was similarly-situated to others, and plaintiffs often met such burden at the outset of litigation by submitting declarations from a limited number of potential collective action members.

      At the second stage, courts conducted a more thorough examination of the evidence to determine whether in fact the plaintiff was similarly-situated to others and the court manageably could try the case on a collective basis.

      Over the past few years, however, courts have started taking a fresh look at the two-step process and whether it comports with the FLSA. Federal appellate courts in two circuits – the Fifth Circuit and Sixth Circuit – along with various district courts answered that question in the negative.

      In 2021, the Fifth Circuit in Swales, et al. v. KLLM Transport Services, LLC, 985 F.3d 430, 436 (5th Cir. 2021), rejected the two-step approach to evaluating collective action certification, holding instead that district courts should “rigorously scrutinize the realm of ‘similarly-situated’ workers … at the outset of the case.”

      In 2023, the Sixth Circuit in Clark v. A&L Homecare & Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023), likewise jettisoned the two-step approach but expressly declined to adopt the standard approved by the Fifth Circuit. Instead, the Sixth Circuit introduced a new standard that requires the plaintiff to demonstrate a “strong likelihood” that other employees are “similarly-situated” to the plaintiff.

      Although different, both Swales and Clark require plaintiffs to make a more substantial showing than the first-step approach requires, thereby requiring more factual development and, as a result, more investment on the part of the plaintiffs’ bar. As a result, we have seen fewer motions filed in these two circuits over the past two years, as plaintiffs progress further into discovery before filing their motions for conditional certification and as plaintiffs shift their efforts away from pursuing collective actions in the Fifth and Sixth Circuits.

      Indeed, once a hotbed of filings, the number of rulings in the Fifth and Sixth Circuits were muted in 2024. In the Fifth Circuit, courts issued rulings on six motions for conditional certification, and plaintiffs prevailed on five, for a success rate of 83%, and, in the Sixth Circuit, courts issued rulings on ten motions for conditional certification, and plaintiffs prevailed on eight, for a success rate of 80%. While the results are solid for plaintiff’s side lawyers, the investment of time and effort to secure certification and thereafter monetize their cases shows a far longer track than in other federal circuits

      These numbers illustrate the impact of Clark. Whereas courts in the Sixth Circuit issued rulings on ten motions for conditional certification this year, in 2023, as Clark began to take hold, courts in the Sixth Circuit issued 22 decisions on motions for conditional certification.

      In 2022, the last full year before Clark, courts in the Sixth Circuits issued 36 decisions on motions for conditional certification. These numbers show a decrease of 14 rulings in each of the past two years. These numbers may continue to decline as plaintiffs shift their case filings to other circuits that have retained the lenient two-step approach or to other areas.

      The distribution of conditional certification rulings over the past years shows that a disproportionate number emanated from traditionally pro-plaintiff jurisdictions, including the judicial districts within the Second Circuit (33 decisions) and Ninth Circuit (21 decisions), which include New York and California, respectively. The following map illustrates these variations:

      At the decertification stage, courts generally have conducted a closer examination of the evidence and, as a result, defendants historically have enjoyed an equal if not higher rate of success on these second-stage motions as compared to plaintiffs. The results in 2024, however, were less favorable for defendants. Courts issued 15 rulings on motions for decertification. Of these, five rulings favored defendants, for a success rate of only 33.3%, and 10 rulings favored plaintiffs, for a success rate of 66.6%.

      By comparison, in 2023, courts issued 18 rulings on motions for decertification of collective actions. Of these, eight favored defendants, for a success rate of 44.4%, and ten rulings favored plaintiffs, for a success rate of 55.6%. Such a rate aligns with the success rate defendants enjoyed in 2022. In 2022, courts similarly issued 18 rulings on motions for decertification of collective actions. Of these, defendants prevailed in nine, for a success rate of 50%, and plaintiffs prevailed in nine, for a success rate of 50%.

      The variation in numbers across federal circuits no doubt flows from the different standards and approaches that different courts take in evaluating motions for conditional certification and decertification and, in turn, the likelihood of plaintiffs’ success on such motions. If more courts join the Fifth and Sixth Circuits in abandoning the traditional two-step certification process, and thereby increase the time and expense of gaining a conditional certification order, it may lead to a reshuffling of the deck in terms of the types of cases plaintiffs pursue and where plaintiffs choose to file them.

      Posted on by Gerald L. Maatman, Jr.

      It Is Here — The Duane Morris Class Action Review – 2025


      By Gerald L. Maatman, Jr. and Jennifer A. Riley

      Duane Morris Takeaways:  As we kick off 2025, we are pleased to announce the publication of the third annual edition of the Duane Morris Class Action Review. It is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting corporations, including class certification rulings in the substantive areas of antitrust, appeals, the Class Action Fairness Act, civil rights, consumer fraud, data breaches, discrimination, EEOC-initiated and government enforcement litigation, the Employee Retirement Income Security Act of 1974, the Fair Credit Reporting Act, labor, privacy, procedural issues, product liability and mass torts, the Racketeer Influenced and Corrupt Organizations Act, securities fraud, state court class actions, the Telephone Consumer Protection Act, wage & hour class and collective actions, and the Worker Adjustment and Retraining Notification Act. The Review also highlights key rulings on attorneys’ fee awards in class actions, motions granting and denying sanctions in class actions, the largest class action settlements across all areas of law, and primers on both the Illinois Biometric Information Privacy Act and the California Private Attorney General Act. Finally, the Review provides insight as to what companies and corporate counsel can expect to see in 2025.

      We are humbled and honored by the recent review of the Duane Morris Class Action Review by Employment Practices Liability Consultant Magazine (“EPLiC”) – the review is here. EPLiC said, “The Duane Morris Class Action Review is ‘the Bible’ on class action litigation and an essential desk reference for business executives, corporate counsel, and human resources professionals.” EPLiC continued, “The review is a must-have resource for in-depth analysis of class actions in general and workplace litigation in particular. The Duane Morris Class Action Review analyzes class action trends, decisions, and settlements in all areas impacting corporate America and provides insight as to what companies and corporate counsel can expect in terms of filings by the plaintiffs’ class action bar and government enforcement agencies like the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL).”

      We are equally proud that the Review made its way into American jurisprudence over the past year, with a federal district court citing our analysis on class action trends in its decision on a motion for class certification.

      Click here to access our customized website featuring all the Review highlights, including the ten major trends across all types of class actions over the past year. Order your free copy of the e-book here, and download the Review overview here.

      Check out an exclusive article featuring the Review posted this morning in Forbes here. The Firm’s press release on the Review can be found here.

      The 2025 Review analyzes rulings from all state and federal courts in 23 areas of law. It is designed as a reader-friendly research tool that is easily accessible in hard copy and e-book formats. Class action rulings from throughout the year are analyzed and organized into 23 chapters and 7 appendices for ease of analysis and reference.

      Executive Summary Of Key Class Action Trends Over The Past Year

      Class action litigation presents one of the most significant risks to corporate defendants today. Procedural mechanisms like the one set forth in Rule 23 of the Federal Rules of Civil Procedure have the potential to expand a claim asserted on behalf of a single person into a claim asserted on behalf of a behemoth that includes every employee, customer, or user of a particular company, product, or service, over an extended period. Class actions allow plaintiffs to pursue claims on behalf of a defined and sometimes sprawling group of unnamed individuals. By aggregating the claims of many persons in a single lawsuit, plaintiffs can seek to increase the size of their cases exponentially in terms of the number of claims they assert and the damages they seek. As a result, class actions can present substantial implications for corporate defendants.

      As plaintiffs increase the size of their cases, the resulting legal risks can grow, bringing increased leverage for plaintiffs. A negative ruling in a class action has the potential to reshape a defendant’s business model, to impose significant financial consequences, and to shape standards for the entire industry. The outcome of a class action lawsuit, therefore, can be significant and potentially devastating for a company. Due to their potential implications, class actions are often costly to defend. Defending a class action can be a time-consuming and resource-intensive process that diverts management attention from core business activities. Plaintiffs can attempt to leverage this reality to make class actions as expensive and disruptive as possible, in an effort to bring about litigation fatigue and to extract sizable settlements from corporations.

      Class actions are sometimes even more perilous to settle. Given the potential size and cost, class action settlements can attract media attention and lead to public scrutiny. Lucrative settlements can prompt copy-cat lawsuits and lead to more claims. Negative publicity can have widespread implications, including potential harm to a company’s reputation, potential damage to its brand, and potential drop in consumer trust. Class actions are complex legal proceedings with uncertain outcomes. The complexity can arise from managing multiple claims, myriad legal issues, and assorted class members, making it challenging for corporate defendants to predict and control the result. Due to these factors, corporate defendants should approach class actions from a broad vantage point with a thoughtful and multi-faceted defense strategy.

      We developed a one-of-a-kind resource to provide a practical desk reference for corporate counsel faced with defending class action litigation. We have organized this year’s book into 23 chapters, with seven appendices, each of which provides an analysis of the trends in a particular area of class action litigation, along with the key decisions from courts across the country that companies can use to shape their defense strategies.

      We identified ten key trends that characterized 2024. These trends include: (i) the continued prevalence of massive class action settlements; (ii) the normalization of plaintiff-friendly class certification conversion rates across substantive areas of class action litigation; (iii) the expansion of privacy class action litigation; (iv) continued efforts to chip away at and counter the impact of the arbitration defense as a barrier to class action litigation; (v) a surge of challenges to diversity, equity, and inclusion (DEI) programs that are likely to fuel class claims; (vi) decisions by the U.S. Supreme Court laying the groundwork for rebooted litigation theories and defenses; (vii) continued growth of data breach class actions; (viii) attention-getting headlines regarding PFAS litigation, which generated the largest class settlement and attorneys’ fee award of 2024; (ix) filing activity in California on the PAGA front demonstrating its continued popularity among the plaintiffs’ class action bar; and (x) a decreased role for government enforcement activity.

      Trend # 1 – Settlement Numbers Break $40 Billion For The Third Year In A Row

      In 2024, settlement numbers broke 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 billion. Combined, the past three years of $159.4 billion reflect use of the class action mechanism to redistribute wealth at an unprecedented level.

      Trend #2 – Class Certification Numbers Normalize Across Substantive Areas

      Although courts issued fewer decisions on motions for class certification in 2024 as compared to 2023, the plaintiffs’ class action bar obtained certification at a more consistent rate across all substantive areas, suggesting that plaintiffs are being more selective in their investments and the cases they pursue through class certification. In 2024, courts issued rulings on 432 motions for class certification, a decrease from 2023, when courts issued rulings on 451 motions for class certification. Of those, courts granted motions for class certification at a lower rate. Courts granted 272 of those motions, for a certification rate of approximately 63%. In 2023, by contrast, courts granted 324 motions for class certification, for a certification rate of approximately 72%.

      Trend #3 – Privacy Class Actions Continue To Proliferate As Plaintiffs Search For Winning Theories

      The plaintiffs’ class action bar has continued to invest in the privacy class action space and, over the past year, has generated a multitude of filings, making privacy one of the hottest areas of growth in terms of activity by the plaintiffs’ class action bar. As technology continues to infiltrate our everyday lives, it provides ongoing inspiration for novel claims. Two of the most active areas of privacy litigation over the past year include: (1) litigation regarding “biometric” technologies under the Illinois Biometric Privacy Act (BIPA); and (2) claims regarding website advertising technologies (adtech) asserted under a variety of federal and state statutory and common laws.

      Trend #4 – Plaintiffs Continue To Chip Away At The Arbitration Defense

      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. In 2024, the defense won 91 of 167 motions to compel arbitration, for a success rate of 54%. By way of comparison, in 2023 the defense won 126 of 190 motions to compel arbitration, for a success rate of 66%.

      Trend #5 – Plaintiffs Target DEI and ESG Initiatives Prompting Roll Back

      The U.S. Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. (SFFA), et al. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), stimulated a flood of claims targeting diversity equity and inclusion (DEI) programs over the past year. Headlines were replete with cases of employees and applicants accusing employers of prioritizing diversity over merit and improperly using protected characteristics to guide decision-making, setting the stage for more class action activity in this area.

      Trend #6 – The Supreme Court Lays The Groundwork For Rebooted Litigation Theories

      As the ultimate referee of law, the U.S. Supreme Court traditionally has defined the playing field for class action litigation and, through its rulings, has impacted the class action landscape. The past year was no exception. Although the U.S. Supreme Court did not directly address the procedural mechanisms that govern class actions during its most recent term, it issued multiple decisions that are sure to influence the class action space.

      Trend #7 – Data Breaches Gives Rise To An Unprecedented Number Of Class Action Filings

      Data breach litigation remained expansive in 2024 as plaintiffs filed more data breach class actions than in any other year and double the number filed in 2022. As the number of data breaches has accelerated, such events have provided the fuel for a surge of class actions. Despite the significant increase in filings, courts issued few (only five) class certification decisions in 2024, suggesting that many motions are in the pipeline or that, observing the difficulty that plaintiffs have faced in certifying such cases over the past two years, plaintiffs are electing to monetize their data breach claims prior to reaching that crucial juncture. So long as defendants continue to play ball on the settlement front, we are likely to see settlement payouts continue to lure plaintiffs to this space and fuel those filing numbers.

      Trend #8 – PFAS Inspires Forever Litigation

      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.  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.

      Trend #9 – California Remains Ground Zero For PAGA Representative Actions

      The California Private Attorneys General Act (PAGA) inspired more representative lawsuits than any other statute in America over the past year. According to the California Department of Industrial Relations, plaintiffs filed more than 9,464 PAGA notices in 2024, a nearly 22% increase over 2023, and a whopping 85,936% increase over the 11 PAGA notices filed in 2006. The so-called PAGA reform legislation passed in 2024 by California lawmakers seemingly did little to nothing to curb interest in these cases, which continue to present one of the most viable workarounds to workplace arbitration agreements.

      Trend #10 – The Change At The White House Signals A Decreased Role For Government Enforcement Litigation

      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. 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.

      Conclusion

      Class action litigation is a staple of the American judicial system. The volume of class action filings has increased each year for the past decade, and 2025 is likely to follow that trend. In this environment, programs designed to ensure compliance with existing laws and strategies to mitigate class action litigation risks are corporate imperatives.

      The plaintiffs’ bar is nothing if not innovative and resourceful. Given the massive class action settlement figures from 2022 through 2024 (a combined total of $159.4 billion), coupled with the ever-developing law, corporations can expect more lawsuits, expansive class theories, and an equally if not more aggressive plaintiffs’ bar in 2025. These conditions necessitate planning, preparation, and decision-making to position corporations to withstand and defend class action exposures.

      Posted on by Gerald L. Maatman, Jr.

      Fourth Circuit Vacates Class Certification Of Overbroad Class Consisting of All Shift Managers At Bojangles Restaurants In North And South Carolina


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

      Duane Morris Takeaways: On December 17, 2024, in a critical ruling in Stafford, et al. v. Bojangles’ Restaurants, Inc., No. 23-2287 (4th Cir. Dec. 17, 2024), the Fourth Circuit vacated the district court’s certification of a class action involving allegations of unpaid off-the-clock work and unauthorized edits to employee time records at Bojangles Restaurants. The Fourth Circuit determined that the district court erred in its application of Rule 23’s commonality and predominance requirements, relying on overly broad class definitions and vague assertions of company-wide policies. The decision underscores the importance of specificity in class certification arguments and highlights the successful opposition to class certification when plaintiffs rely upon generalized allegations and purportedly common policies in wage-and-hour litigation.

      Case Background

      Bojangles’ Restaurants, Inc. operates over 300 fast-food locations across eight states. The company employs a three-tier management structure with shift managers, assistant general managers, and general managers. Shift managers, the lowest tier, are responsible for a variety of operational duties, including pre-opening and post-closing tasks. Bojangles maintains internal policies prohibiting off-the-clock work and requiring employees to clock in and out to ensure accurate tracking of hours and overtime pay.

      The lawsuit arose from allegations that Bojangles violated its policies by requiring shift managers to perform off-the-clock work and, at times, by systematically editing time records to reduce overtime payments. The Named Plaintiff Richard Stafford, a former hourly-paid shift manager, alleged that he was frequently required to work off the clock, perform unpaid tasks such as cleaning, making bank deposits, and traveling between locations, and was subject to unauthorized time-shaving.

      The lawsuit was originally filed as an FLSA collective action and, in 2020, the district court conditionally certified a collective action for Stafford’s FLSA claims that attracted nearly 550 opt-in plaintiffs. Stafford later amended the complaint to assert state law class claims under various state wage and hour laws, and subsequently sought Rule 23 class certification for state law claims in North Carolina, South Carolina, Alabama, Georgia, Kentucky, Tennessee, and Virginia. While five of the state law classes failed to meet Rule 23’s adequacy prong, the district court certified classes for North Carolina and South Carolina shift managers, citing the Bojangles Opening Checklist, which allegedly mandated pre-shift tasks, as a common issue. The class definitions broadly included all shift managers employed within three years of the complaint’s filing since the district court found that at least 80% of shift managers would have worked an opening shift at some point.

      Bojangles appealed, arguing that the district court’s class certification was overly broad and lacked the specificity required under Rule 23.

      The Fourth Circuit’s Decision

      The Fourth Circuit found that the district court relied excessively on generalized claims of Bojangles’ policies without providing specific evidence of commonality among the class members. While the Opening Checklist provided some basis for commonality regarding pre-shift work, the district court failed to address whether other alleged activities, such as time-shaving and post-closing tasks, were similarly unified by a common policy. The Fourth Circuit emphasized that “[a]llegations of generalized policies are not usually sufficient for the purposes of class certification” and further noted that Rule 23 does not permit a “30,000-foot view of commonality.” Id. at 11. Instead, plaintiffs must demonstrate that common questions predominate over individualized issues, and they had not done so with respect to the type of alleged off-the-clock work and time shaving.

      The Fourth Circuit also criticized the overly broad class definitions, which included all shift managers employed during a three-year period without specifying the types of claims or injuries alleged. Such vague definitions risked including individuals with no viable claims and failed to meet Rule 23’s requirements. The lack of specificity raised concerns about commonality, predominance, and typicality, according to the Fourth Circuit, because some plaintiffs may not even have off-the-clock or time shaving claims against Bojangles.  It suggested that sub-classes might be appropriate to address distinct issues but left this determination to the district court on remand.

      The decision concluded by emphasizing the importance of adhering to Rule 23’s prerequisites to ensure that class actions remain a viable and efficient mechanism for resolving disputes.  Characterizing Rule 23 class actions as a “carefully crafted compromise,” the Fourth Circuit observed that its decision was meant to “ensure that the class-action train stays on the tracks.”  Id. at 19. Without clear evidence of commonality and precise class definitions, the Fourth Circuit ultimately vacated and remanded the district court’s class certification decision.

      Implications for Employers

      This decision provides a helpful roadmap for employers facing wage-and-hour class action cases premised on an alleged common policy.  As this case exemplifies, employers should focus on the lack of specificity in alleged policies to counter claims of commonality or predominance. Demonstrating variations in employee experiences, decision-making processes, or other individualized factors can effectively undermine arguments for class-wide treatment.

      Thinking through such considerations is an absolute necessity, and one that begins with the planning of a strategic defense early in the litigation process. Documenting lawful policies and practices during discovery lays a foundation for opposing class certification.   By emphasizing the need for clear evidence and precise definitions, this ruling underscores the challenges plaintiffs face in meeting Rule 23’s rigorous standards. Employers can use these standards to their advantage, ensuring that ill-defined and nebulous classes are not certified in the high-stakes litigation they often face.

      Posted on by Gerald L. Maatman, Jr.

      The Duane Morris Class Action Review – 2025 Is Coming Soon!

      By Gerald L. Maatman, Jr. and Jennifer A. Riley

      Duane Morris Takeaway: Happy Holidays to our loyal readers of the Duane Morris Class Action Defense Blog! Our elves are busy at work this holiday season in wrapping up our start-of-the-year kick-off publication – the Duane Morris Class Action Review – 2025. We will go to press in early January and launch the 2025 Review from our blog and our book launch website.

      The 2025 Review builds on the success of our previous editions and represents our twentieth annual study of the class action space. At over 600 pages, the 2025 Review has more analysis than ever before, with discussion of over 1,250 class certification rulings from federal and state courts over this past year. The Review will be available for download as an E-Book too.

      The Review is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting Corporate America, including the substantive areas of antitrust, appeals, the Class Action Fairness Act, civil rights, consumer fraud, data breach, EEOC-Initiated and government enforcement litigation, employment discrimination, the Employee Retirement Income Security Act of 1974, the Fair Credit Reporting Act, labor, privacy, procedural issues, product liability and mass torts, the Racketeer Influenced and Corrupt Organizations Act, securities fraud, state court class actions, the Telephone Consumer Protection Act, wage & hour class and collective actions, and the Worker Adjustment and Retraining Notification Act. The Review also highlights key rulings on attorneys’ fee awards in class actions, motions granting and denying sanctions in class actions, and the top-class action settlements in each area. Finally, the Review provides insight as to what companies and corporate counsel can expect to see in 2025.

      We are humbled and honored by the recent review of the Duane Morris Class Action Review – 2024 by Employment Practices Liability Consultant Magazine (“EPLiC”) – the review is here. EPLiC said, “The Duane Morris Class Action Review is ‘the Bible’ on class action litigation and an essential desk reference for business executives, corporate counsel, and human resources professionals.” EPLiC continued, “The review is a must-have resource for in-depth analysis of class actions in general and workplace litigation in particular. The Duane Morris Class Action Review analyzes class action trends, decisions, and settlements in all areas impacting corporate America and provides insight as to what companies and corporate counsel can expect in terms of filings by the plaintiffs’ class action bar and government enforcement agencies like the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL).”

      We look forward to providing the 2025 edition of the Review to all our loyal readers in early January. Stay tuned and Happy Holidays!

      Posted on by Gerald L. Maatman, Jr.

      Minnesota Federal Court Imposes $100 Per Day Civil Contempt Sanctions For Company’s Continued Failure To Comply With An EEOC Subpoena

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

      Duane Morris Takeaways: In EEOC v. Cambridge Transportation., Inc., No. 0:23-MC-00101, 2024 U.S. Dist. LEXIS 118857 (D. Minn. July 8, 2024), Judge Nancy E. Brasel of the U.S. District Court for the District of Minnesota accepted U.S. Magistrate Judge Dulce J. Foster’s Report and Recommendation (see EEOC v. Cambridge Transportation, Inc., No. 0:23-MC-00101, 2024 U.S. Dist. LEXIS 121147 (D. Minn. June 10, 2024)) to impose civil contempt sanctions against Cambridge Transportation Inc. for its failure to comply with an EEOC subpoena.  The EEOC sought documents in its administrative charge investigation into Title VII discrimination allegations on behalf of a former Cambridge Transportation, Inc. worker. 

      The Court ordered payment to the EEOC of $100 per day for each day Cambridge Transportation, Inc. remains out of compliance beginning on June 7, 2024.  Over one month later, Cambridge remains out of compliance based on the docket.  This ruling is a warning admonisiton for employers facing EEOC subpoenas and the seriousness for any alleged non-compliance with the Commission’s investigation process.

      Case Background

      On October 19, 2023, the EEOC petitioned for an Application for and Order to Show Cause Why Administrative Subpoena Should Not Be Enforced (the “Application”) against Respondent Cambridge Transportation, Inc. (“Cambridge”).  (See United States EEOC v. Cambridge Transp., Inc., No. 0:23-MC-00101, ECF No. 1.)  The EEOC’s subpoena duces tecum sought information from Cambridge regarding a charge of discrimination under Title VII of the Civil Rights Act of 1964.  (See id.)  In the underlying charge, Charging Party Becky Blechinger alleged that Cambridge “discriminated against her on the bases of her sex (female), race (white), national origin (United States) and disability by paying a higher rate of compensation to men of Somalian national origin,” who worked at Cambridge.  (See id., ECF No. 2, at 2.)

      On November 1, 2023, the Court issued an order to show cause for the EEOC’s Application.  (See id., ECF No. 7.)  On November 21, 2023, the EEOC provided a status report that reflected it had not effectuated service on Cambridge.  (See id., ECF No. 9)

      On December 19, 2023, the EEOC filed a Motion to Stay Proceedings.  (See id., ECF No. 12.)  Therein, the EEOC stated Cambridge responded and acknowledged receipt of the Court’s order to show cause and further indicated that Cambridge intended to produce the documents identified in the EEOC’s Application by December 26, 2023.  (See id.)  The following day the Court stayed the case.  (See id., ECF No. 13.)

      On January 25, 2024, the EEOC filed another status report with a request due to Cambridge’s failure to comply with the subpoena. Thereafter, the Court entered an order for hearing on the EEOC’s Application.  (See id., ECF Nos. 14 & 15.)  On February 22, 2024, Cambridge attended the hearing via telephone through its non-attorney registered agent.  (See id., ECF No. 18.)

      On February 27, 2024, the Court granted the EEOC’s Application and determined that Cambridge must comply with the subpoena or otherwise the Court may find Cambridge in civil contempt and impose a daily fine for each day Cambridge remains out of compliance.  (See id., ECF No. 20.)

      On May 14, 2024, the EEOC provided a status report to the Court and reiterated that Cambridge failed to comply with the subpoena and requested the Court impose a civil fine of $800 per day, for each day past May 14, 2024, that Cambridge remains non-compliant.  (See id., ECF No. 23.)

      On May 20, 2024, the Court ordered a hearing on the EEOC’s Application and required Cambridge to retain counsel to enter an appearance on its behalf to show cause why sanctions should not be imposed for failure to comply with the Court’s February 27 order.  (See id., ECF No. 25.)  On June 7, 2024, the hearing occurred and Cambridge did not appear.  (See id., ECF No. 27.)

      The Magistrate’s Report and Recommendation and the District Court Judge’s Finding

      On June 10, 2024, Magistrate Judge Dulce J. Foster issued his Report and Recommendation.  (See United States EEOC v. Cambridge Transp., Inc., No. 0:23-MC-00101, 2024 U.S. Dist. LEXIS 121147 (D. Minn. June 10, 2024).  The report detailed the continued failures of Cambridge to respond to the Agency’s subpoena and efforts to enforce its subpoena.  (See id., at *1-6.)

      The Court opined Cambridge had “ample time to retain counsel, for its alleged counsel to enter an appearance and to ensure its counsel either would be available to attend the show cause hearing or move to reschedule it” and “despite having months,” it had “faile[d] to do so and made no efforts to explain that failure or seek more time to comply.”  (See id., at *5.)  As a result, the Court found Cambridge waived all of its defenses to the EEOC’s motion and request for sanctions.  (See id., at *5-6.)

      The Court reiterated its authority that it “may hold a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.”  (See id, at *6) (quoting Fed. R. Civ. P. 45(g).)  The Court found Cambridge’s continued non-compliance with the subpoena warranted contempt and imposition of monetary sanctions.  (See id.)  The Court’s recommendation was not made “lightly, but Cambridge’s intransigent refusal to cooperate” left the Court with few other options.  (See id.)

      On the requested $800 per day fine from the EEOC, the Court reasoned at this stage that it was not justified at this stage.  (See id.)  The Court instead recommended an initial daily fine of “$100 per day for each day Cambridge remains noncompliant with the subpoena beginning June 7, 2024, the date of the show cause hearing, and continuing until Cambridge satisfactorily complies.”  (See id., at *7.)  The Court further held “additional sanctions and penalties may be warranted in the future” if Cambridge’s failure to comply continues.  (See id.)

      The District Court Judge found no clear error in the Magistrate Judge Foster’s recommendation and report.  (United States EEOC v. Cambridge Transp., Inc., No. 0:23-MC-00101, 2024 U.S. Dist. LEXIS 118857, at * 1 (D. Minn. July 8, 2024).)  In so holding, the Court adopted the report in full, and found Cambridge in civil contempt and ordered payment of $100 per day for each day Cambridge remains out of compliance with the EEOC’s subpoena, beginning on June 7, 2024.  (Id.)  The Court left open whether any additional sanctions and penalties may apply.

      Implications For Employers

      This recommendation and report, and resulting Court order, illustrates the length to which the EEOC will go to enforce its investigation of allegations of discrimination under Title VII of the Civil Rights Act of 1964.  Companies should recognize the EEOC’s enforcement efforts have teeth, and heed the Court’s response that imposed a daily fine based on total non-compliance.

      Companies should take measures to ensure compliance with any EEOC request for information and respond accordingly, and promptly, to any investigation including subpoena requests.  Otherwise, Companies may find themselves footing a $100 bill for every day of non-compliance and possibly expose themselves to further civil contempt sanctions.

      Posted on by Gerald L. Maatman, Jr.

      DMCAR Mid-Year Review – 2024/2025: FLSA Conditional Certifications Remain High, But So Far In 2024 Courts Are Granting Less Class Certification Motions Overall Compared To 2023


      By Gerald L. Maatman, Jr. and Jennifer A. Riley

      Duane Morris Takeaway: In the first half of 2024, across all major types of class actions, courts issued rulings on 203 motions to grant or deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 138 rulings, with an overall success rate of 68%. In contrast, in 2023, the plaintiffs’ class action bar succeeded in certifying class actions at a higher rate. Across all major types of class actions, courts issued rulings last year on 451 motions to grant or to deny class certification. Of these, plaintiffs succeeded in obtaining or maintaining certification in 324 rulings, an overall success rate of 72%. In 2022, by comparison, courts issued rulings on 335 motions to grant or to deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 247 rulings, an overall success rate of nearly 74%.

      In 2024, the number of motions that courts considered varied significantly by subject matter area, and the number of rulings varied across substantive areas.

      The following list summarizes the results in each of ten key areas of class action litigation:

      WARN – 100% granted / 0% denied (1 of 1 granted / 0 of 1 denied)
      FLSA / Wage & Hour (Conditional Certification) – 84% granted / 16% denied (68 of 81 granted / 13 of 81 denied)
      Antitrust – 80% granted / 20% denied (8 of 10 granted / 2 of 10 denied)
      FCRA / FDCPA – 75% granted / 25% denied (3 of 4 granted / 1 of 4 denied)
      Securities Fraud – 67% granted / 33% denied (10 of 15 granted / 5 of 15 denied)
      ERISA – 67% granted / 33% denied (10 of 15 granted / 5 of 15 denied)
      Discrimination – 60% granted / 40% denied (6 of 10 granted / 4 of 10 denied)
      Privacy – 60% granted / 40% denied (3 of 5 granted / 2 of 5 denied)
      FLSA / Wage & Hour (Decertification) – 33% granted / 67% denied (3 of 9 granted / 6 of 9 denied)
      Civil Rights – 48% granted / 52% denied (10 of 21 granted / 11 of 21 denied)
      Consumer Fraud – 48% granted / 52% denied (12 of 25 granted / 13 of 25 denied)
      Data Breach – 33% granted / 67% denied (1 of 3 granted / 2 of 3 denied)
      Products Liability / Mass Torts – 0% granted / 100% denied (0 of 1 granted / 1 of 1 denied)
      TCPA – 0% granted / 100% denied (0 of 3 granted / 3 of 3 denied).

      The plaintiffs’ class action bar obtained the highest rates of success in WARN, wage & hour, antitrust, and FCRA class actions. There has only been one WARN certification ruling in 2024, which was granted by the court for a 100% success rate. In wage & hour litigation, plaintiffs succeeded in obtaining orders certifying classes and/or collective actions in 68 of 81 rulings issued during 2024, a success rate of 84%. In cases alleging antitrust violations, plaintiffs succeeded in obtaining orders certifying classes in 8 of 10 rulings, for a success rate of 80%. And in cases alleging FCRA violations, plaintiffs managed to obtain class certification rulings in 3 of 4 rulings issued during 2024, a success rate of 75%.

      Courts Issued More Rulings In FLSA Collective Actions and Wage & Hour Class Actions Than In Any Other Areas Of Law

      For the first half of calendar year 2024, courts again issued more certification rulings in FLSA collective actions and wage & hour class actions than in other types of cases. Plaintiffs historically have been able to obtain conditional certification of FLSA collective actions at a high rate, which surely has contributed to the number of filings in this area.

      From January 1 to July 1, 2024, courts considered more motions for certification in FLSA matters than in any other substantive area. Overall, courts issued 90 rulings. Of these, 81 addressed first-stage motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 9 addressed second-stage motions for decertification of collective actions. Of the 81 rulings that courts issued on motions for conditional certification, 68 rulings favored plaintiffs, for a success rate of nearly 84%.

      These numbers are higher than the numbers observed in 2023, during which courts issued 183 rulings. Of these, 165 addressed first-stage motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions for decertification of collective actions. Of the 167 rulings that courts issued on motions for conditional certification, 125 rulings favored plaintiffs, for a success rate of nearly 75%.

      At the decertification stage, courts generally have conducted a closer examination of the evidence and, as a result, defendants historically have enjoyed an equal if not higher rate of success on these second-stage motions as compared to plaintiffs.

      The results so far in 2024 have not supported that typical success. Of the 9 rulings that courts issued on motions for decertification of collective actions, only 3 rulings favored defendants, for a lower success rate of 33%.

      An analysis of the rulings demonstrates that a disproportionate number emanated from traditionally pro-plaintiff jurisdictions, including the judicial districts within the Second Circuit (16 decisions) and Ninth Circuit (10 decisions), which include New York and California, respectively.

      Takeaways From The Numbers Midway Through 2024

      Notable this year at the halfway point, there have been a very small number of rulings emanating from the Fifth and Sixth Circuits (4 and 7 decisions, respectfully), which could account for the high overall conditional certification rate in the wage & hour space, given that these two circuits have imposed new, stricter standards for conditional certification. Plaintiffs likely are shifting their case filings away from these two circuits toward jurisdictions with more lenient, more plaintiff-friendly standards for conditional certification.

      The numbers no doubt flow from the different standards and approaches that courts in different federal circuits take in evaluating motions for conditional certification and decertification and, in turn, the likelihood of plaintiffs’ success on such motions. If more courts join the Fifth and Sixth Circuits in abandoning the traditional two-step certification process under 29 U.S.C. § 216(b), and thereby increase the time and expense of gaining a conditional certification order, it may lead to a reshuffling of the deck in terms of where plaintiffs file their cases and the types of claims they pursue.

      We will continue to track class certification trends in 2024 and will report on final numbers in the Duane Morris Class Action Review – 2025, which will be published in the first week of January. Stay tuned!

      Posted on by Gerald L. Maatman, Jr.

      Duane Morris Class Action Review – 2024/2025: Mid-Year Class Action Settlement Report & Analysis

      By Gerald L. Maatman, Jr. and Jennifer A. Riley

      Duane Morris Takeaways: Corporate defendants saw unprecedented settlement numbers across all areas of class action litigation in 2022 and 2023, and halfway through 2024, settlement numbers remain robust. The cumulative value of the top ten settlements across all substantive areas of class action litigation hit near record highs in 2023, second only to the settlement numbers observed in 2022. When the numbers for 2022 and 2023 are combined, the totals signal that corporate defendants have entered a new era of heightened risks and higher stakes in the valuation of class actions. On an aggregate basis, across all areas of litigation, class actions and government enforcement lawsuits garnered more than $51.4 billion in settlements in 2023, almost as high as the record-setting $66 billion in 2022. When combined, the two-year settlement total eclipses any other two-year period in the history of American jurisprudence.

      As a prelude to the Duane Morris Class Action Review – 2025, this post reports on our analysis of class action settlements through the first half of 2024. The data shows that for the period of January 1 to June 30, 2024, the current year is on pace with the numbers of the previous two years. As of the end of the first half of 2024, the aggregate settlement total across all areas of class action litigation and government enforcement lawsuits is $22.9 billion (in accounting for the top 5 settlements in the various substantive areas of law). It is anticipated that these numbers will increase across the board by the end of the year and when measured by the top 10 settlements in each category.

      More Billion Dollar Class Action Settlements

      At the mid-way point of 2024, there are four settlements over the billion-dollar mark. In 2023, parties resolved 14 class actions for $1 billion or more in settlements, making 24 billion-dollar settlements in the last two years. Reminiscent of the Big Tobacco settlements nearly two decades ago, 2022 and 2023 marked the most extensive set of billion-dollar class action settlements and transfer of wealth in the history of the American court system.

      Class action settlements totaled $66 billion in 2023, $51.4 billion in 2023, and $22.9 billion in 2024 so far.

      The Scorecard On Leading Class Actions Settlements Halfway Through 2024

      The plaintiffs’ class action bar has scored rich settlements thus far in 2024 in virtually every area of class action litigation.

      [Click image to enlarge] The top 5 class action settlement totals in each practice area.
      The following list shows the totals of the top 5 settlements at the mid-year point in 2024 in key areas of class action litigation:

      $14.45 Billion – Products liability/mass tort class actions
      $4.17 Billion – Antitrust class actions
      $2.05 Billion – Securities fraud class actions
      $628 Million – Consumer fraud class actions
      $388.95 Million – Data breach class actions
      $331.5 Million – Privacy class actions
      $288 Million – ERISA class actions
      $157.15 Million – Wage & hour class and collective actions
      $147 Million – Discrimination class actions
      $101.3 Million – Labor class actions
      $67.7 Million – Government enforcement actions
      $58.8 Million – Civil rights class actions
      $49.69 Million – TCPA class actions
      $24.96 Million – Fair Credit Reporting Act class actions

      The high dollar settlements of the past two years suggested that the plaintiffs’ bar would continue to be equally, if not more aggressive, with their case filings and settlement positions. From the 2024 data, it certainly looks to be the case as we end the first half of the year.

      The data points in each category are set out in the following charts.

      Top Class & Collective Action Litigation Settlements In 2024

      Top Antitrust Class Action Settlements In 2024

      The top 10 antitrust class action settlements totaled $11.74 billion in 2023, and $3.72 billion in 2022.

        1. $2.77 billion – In Re College Athlete NIL Litigation, Case No. 20-CV-3919 (N.D. Cal. May 23, 2024) (settlement agreement reached to resolve claims with former college athletes who filed an antitrust class action seeking compensation allegedly denied to them for decades before the Supreme Court overturned the NCAA’s compensation ban)..
        2. $418 million – Burnett, et al. v. the National Association of Realtors, Case No. 19-CV-332, Gibson, et al. v. National Association of Realtors, Case No.  23-CV-788, and Umpa, et al. v. The National Association of Realtors, Case No. 23-CV-945 (W.D. Mo. Mar. 15, 2024) and Moehrl, et al. v. The National Association of Realtors, Case No. 19-CV-1610 (N.D. Ill. Apr. 23, 2024) (preliminary settlement approval granted in a class action to resolve claims that broker commission rules caused home sellers across the country to pay inflated fees).
        3. $385 million – In Re Suboxone (Buprenorphine Hydrochloride and Naloxone) Antitrust Litigation, Case No. 13-MD-2445 (E.D. Penn. Feb. 27, 2024) (final settlement approval granted in a class action to resolve claims brought by states, insurers and buyers of a new dissolvable strip version of Suboxone to the market, encouraging the move from tablets to strips by misrepresenting to the U.S. Food and Drug Administration that the tablets posed a risk to children of accidental consumption).
        4. $335 million – Le, et al. v. Zuffa LLC, Case No. 15-CV-1045 (D. Nev. Mar. Mar. 20, 2024) (preliminary settlement approval sought in a class action to resolve claims that fighters’ wages were suppressed by up to $1.6 billion).
        5. $265 million – In Re Generic Pharmaceuticals Pricing Antitrust Litigation, Case No. 16-MD-2724 (E.D. Penn. June 26, 2024) (preliminary settlement approval granted for a class action to resolve claims by direct purchasers, end-payors and states alleging that multiple makers of generic drugs conspired to keep the prices on their products high, in violation of state laws and the federal Sherman Act).

      Top Civil Rights Class Action Settlements In 2024

      The top 10 civil rights class action settlements totaled $643.15 million in 2023, and $1.31 billion in 2022.

        1.  $17.5 million – Clark, et al. v. City Of New York, Case No. 18 Civ. 2334 (S.D.N.Y. Apr. 5, 2024) (settlement approval sought in a class action to resolve claims alleging that the city policy department’s policy requiring all arrested individuals to have their photograph taken without a head covering violated the Religious Land Use and Institutionalized Persons Act).
        2. $13.7 million – Sow, et al. v. New York, Case No. 21 Civ. 533, (S.D.N.Y. Mar. 5, 2024) (final settlement approval granted for a class action resolving claims by individuals who were arrested or arrested and subjected to force by the New York City Police Department during protests in 2020 following the murder of George Floyd).
        3. $12.8 million – In Re Chiquita Brands International Inc., Alien Tort Statute And Shareholders Derivative Litigation, Case No. 08-MD-1916 (S.D. Fla. June 24, 2024) (preliminary settlement approval granted in a class action to resolve claims alleging that the company funded Colombian paramilitary groups leading to the deaths of over 2,500 victims.
        4. $10 million – Adberg, et al. v City Of Seattle, Case No. 20-2-14351-1 (Wash. Super. Ct. Jan. 30, 2024) (settlement reached to end a lawsuit brought by more than 50 protesters who say they were brutalized by its police force during Black Lives Matter demonstrations in the summer of 2020).
        5. $4.8 million – Students For Fair Admissions, Inc., et al. v. University Of North Carolina, Case No. 14-CV-954 (M.D.N.C. Jan. 29, 2024) (the University of North Carolina agreed to cover the fees and expenses of a group founded by affirmative action advocates that won a U.S. Supreme Court challenge to the school’s consideration of race in student admissions).

      Top Consumer Fraud Class Action Settlements In 2024

      The top 10 consumer fraud class action settlements totaled $3.29 billion in 2023, and $8.596 billion in 2022.

        1. $150 million – In Re Chevrolet Bolt EV Battery Litigation, Case No. 20-CV-13256 (E.D. Mich. May 16, 2024) (preliminary settlement approval sought in a class action to resolve claims against General Motors LLC and LG units over alleged battery which allegedly make cars prone to overheating and fires).
        2. $145 million – In Re Kia Hyundai Vehicle Theft Marketing, Sales Practices, And Products Liability Litigation, Case No. 22-ML-3052 (N.D. Cal. July 15, 2024) (final settlement approval sought in a class action resolving claims that that consumers were left vulnerable to theft and damage due to vehicles being improperly manufactured with design flaws).
        3. $125 million – National Veterans Legal Services Program, et al. v. United States, Case No. 16-CV-745 (D.D.C. Mar. 20, 204) (preliminary settlement approval granted in a class action resolving claims challenging the legality of “excessive” PACER fees).
        4. $108 million – Elder, et al. v. Reliance Worldwide Corp., Case No. 20-CV-1596 (N.D. Ga. Apr. 23, 2024) (preliminary settlement approval granted in a class action to resolve claims alleging that the defendants made and sold water heater connector hoses with defective rubber linings).
        5. $100 million – Esposito, et al. v. Cellco Partnership d/b/a Verizon Wireless, Case No. MID-L-6360-23 (N.J. Super. Apr. 26, 2024) (final settlement approval granted in a class action to resolve claims that the company misled its customers by not disclosing certain fees in its postpaid wireless service plans).

      Top Data Breach Class Action Settlements In 2024

      The top 10 data breach class action settlements totaled $515.75 million in 2023, and $719.21 million in 2022.

        1. $350 million – In Re Alphabet Inc. Securities Litigation, Case No. 18-CV-6245 (N.D. Cal Apr. 9, 2024) (preliminary settlement approval granted in a class action alleging that a software glitch led to a data breach in which Google+ users’ personal data was exposed for three years).
        2. $15 million – Salinas, et al. v. Block Inc., Case No. 22-CV-4823 (N.D. Cal. June 3, 2024) (preliminary settlement approval granted in a class action to resolve claims that a December 2021 data breach at the companies exposed personally identifiable information, account numbers and trading activity of 8.2 million people).
        3. $8.7 million – Sherwood, et al. v. Horizon Actuarial Services LLC, Case No. 22-CV-1495 (N.D. Ga. Apr. 2, 2024) (final settlement approval granted for a class action to resolve claims that employer benefit plan members’ sensitive data was exposed in a massive breach at a consulting company).
        4. $8 million – In Re Orrick, Herrington & Sutcliffe LLP Data Breach Litigation, Case No. 23-CV-4089 (N.D. Cal. May 31, 2024) (preliminary settlement approval granted in a class action to resolve claims brought by clients of a law firm alleging their personal information was compromised in a March 2023 data breach of some of the firm’s client data).
        5. $7.25 million – In Re Lincare Holdings Inc. Data Breach Litigation, Case No. 22-CV-1472 (M.D. Fla. June 24, 2024) (final settlement approval granted for a class action to resolve claims that the company failed to protect consumers from a 2021 data breach).

      Top Discrimination Class Action Settlements In 2024

      The top 10 discrimination class action settlements totaled $762.2 million in 2023, and $597 million in 2022.

        1. $54 million – California Civil Rights Department v. Activision Blizzard Inc., Case No. 21STCV26571 (Cal. Super. Jan. 17, 2024) (consent decree entered for an action to resolve claims that the company engaged in gender discrimination, pay inequities, and fostered a culture of sexual harassment in the workplace).
        2. $30 million – Employees’ Retirement System Of Rhode Island v. Paul Marciano, et al., Case No. 2022-0839 (Del. Chan. Jan. 4, 2024) (final settlement approval granted for a class action to resolve claims of decades of alleged sexual misconduct by one of the company’s co-founders).
        3. $25 million – Jewett, et al. v. Oracle America Inc., Case No. 17-CIV-02669 (Cal. Super. Ct. Feb. 11, 2024) (preliminary settlement agreement sought in a class action to resolve claims that female employees were paid less than male employees).
        4. $20 million – Council, et al. v. Merrill Lynch Pierce Fenner, Case No. 24-CV-534 (M.D. Fla. May 24, 2024) (preliminary settlement approval sought in a class action to resolve claims alleging discrimination and retaliation against a proposed class of nearly 1,400 Black financial advisers who alleged they received less pay and promotions compared to their white counterparts).
        5. $18 million – Forsyth, et al. v. HP Inc., Case No. 16-CV-4775 (N.D. Cal. Mar. 29, 2024) (final settlement approval granted in a class action to resolve claims alleging that the company unlawfully pushed out hundreds of older workers as part of a workforce reduction plan in violation of the ADEA).

      Top EEOC / Government Enforcement Class Action Settlements In 2024

      The top 10 EEOC / government enforcement class action settlements totaled $263.58 million in 2023, and $404.5 million in 2022.

        1. $16.5 million – In The Matter Of Avast Ltd., Case No. 202-3033 (FTC Jan. 19, 2024) (consent decree entered following a Federal Trade Commission lawsuit alleging that the company sold personal information to more than 100 third parties despite promising to protect consumers from online tracking).
        2. $16 million – U.S. Department Of Labor v.  Disaster Management Group LLC (DOL Jan. 24, 2024) (consent order entered following investigations into 62 government subcontractors hired to construct temporary housing and provide services to Afghan refugees at Joint Base McGuire-Dix-Lakehurst in New Jersey).
        3. $15 million – California Civil Rights Department v. Snap Inc. (Cal. Super. Ct. June 18, 2024) (consent order entered following an investigation into the company’s hiring and pay practices were discriminatory, finding the company failed to ensure women were treated equally, resulting in a glass ceiling for pay and promotions, sexual harassment and retaliation when female workers spoke up).
        4. $11.5 million – Washington Department Of Labor & Industries v. Boeing (May 24, 2024) (the parties entered into a compliance agreement following an investigation by the agency after it received four complaints in November 2022 from workers who were performing aircraft maintenance overseas, and found that Boeing had not paid or accounted for all overtime and for paid sick leave for the additional time going to worksites while out of town).
        5. $8.7 million – EEOC v. DHL Express (USA) Inc., Case No. 10-CV-6139 (N.D. Ill. Apr. 24, 2024) (consent decree entered resolving a lawsuit filed alleging that the company gave Black workers more difficult and dangerous work assignments than white employees).

      Top ERISA Class Action Settlements In 2024

      The top 10 ERISA class action settlements totaled $580.5 million in 2023, and $399.6 million in 2022.

        1. $169 million – Electrical Welfare Trust Fund, et al. v. United States, Case No. 19-CV-353, (Fed. Claims Ct. May 16, 2024) (final settlement approval granted in a class action alleging that the government illegally exacted certain contributions from SISAs under it for benefit year 2014).
        2. $61 million – In Re GE ERISA Litigation, Case No. 17-CV-12123 (D. Mass. Mar. 7, 2024) (final settlement approval granted in consolidated class actions alleging that the company violated the ERISA by directing employee retirement savings into underperforming GE Asset Management funds to generate fees for the subsidiary before it was sold).
        3. $20 million – Durnack, et al. v. Retirement Plan Committee Of Talen Energy Corp., Case No. 20-CV-5975 (E.D. Penn. June 4, 2024) (final settlement approval granted for a class action resolving claims from employees alleging that that they were owed early retirement pension benefits and pension supplements due to a change in control).
        4. $19 million – Krohnengold, et al. v. New York Life Insurance Co., Case NO. 21-CV-1778 (S.D.N.Y. Mar. 5, 2024) (preliminary settlement approval granted in a class action to resolve claims alleging that the company unlawfully kept underperforming proprietary investment options in two employee retirement plans).
        5. $19 million – Colon, et al. v. Johnson, Case No. 22-CV-888 (M.D. Fla. June 10, 2024) (preliminary settlement approval granted in a class action to resolve claims alleging that the company and executives enacted a scheme that diverted workers’ retirement benefits to shell companies and private equity firm Palm Beach Capital).

      Top FCRA, FDPCA, And FACTA Class Action Settlements In 2024

      The top 10 FCRA, FDPCA, and FACTA class action settlements totaled $100.15 million in 2023, and $210.11 million in 2022.

        1. $9.75 million – Sullen, et al. v. Vivint, Inc.,Case No. 01-CV-2023-903893 (Ala. Cir. Ct. Apr. 23, 2024) (final settlement approval granted in a class action alleging that the company accessed credit information in violation of the Fair Credit Reporting Act and created Vivint accounts without authorization).
        2. $6.76 million – Martinez, et al. v. Avantus LLC, Case No. 20-CV-1772 (D. Conn. Feb. 27, 2024) (final settlement approval granted in a class action alleging that the company violated federal law by including inaccurate information on mortgage borrowers’ credit reports).
        3. $5.7 million – Steinberg, et al. v. Corelogic,Case No. 22-CV-498 (S.D. Cal. Apr. 9, 2024) (final settlement approval granted in a class action lawsuit to resolve claims that the company violated the federal Fair Credit Reporting Act by listing consumers as deceased on credit reports when they were actually alive).
        4. $1.87 million – Parker, et al. v. The Salvation Army, Case No. 20-CV-4787 (Cal. Super. Ct. Mar. 20, 2024) (preliminary settlement approval granted in a class action to resolve claims to resolve claims the company  failed to comply with the Fair Credit Reporting Act (FCRA) when procuring job applicant background checks for employment applicants.
        5. $877,000 – McKey, et al. v. TenantReports.com LLC, Case No. 22-CV-1908-GJP (E.D. Penn. Feb. 27, 2024) (final settlement approval granted in a class action lawsuit to resolve claims that the company prepared consumer background reports that included outdated criminal non-conviction information).

      Top FLSA / Wage & Hour Class And Collective Settlements In 2024

      The top 10 FLSA / wage & hour class and collective action settlements totaled $742.5 million in 2023, and $574.55 million in 2022.

        1. $72.5 million – Utne, et al. v. Home Depot USA Inc., Case No. 16-CV-1854 (N.D. Cal. Mar. 8, 2024) (final settlement approval granted for a class action to resolve claims that the company failed to pay hourly wages, pay final wages on time, and provide accurate written wages).
        2. $38 million – In The Matter Of The Investigation Of Letitia James, Attorney General Of The State Of New York Of Lyft Inc., AOD No. 23-041 (AG Labor Bureau Nov. 30, 2024) (the New York Attorney General took legal action against Lyft, claiming the ride-booking company withheld wages from drivers by deducting taxes and fees from their pay instead of having passengers pay those expenses and prevented drivers from receiving the benefits they were entitled to under New York law).
        3. $16.65 million – Goldthorpe, et al. v. Cathay Pacific Airways Ltd., Case No. 17-CV-3233 (N.D. Cal. June 20, 2024) (preliminary settlement approval sought in a class action to resolve claims alleging that the airline violated state labor laws governing meal and rest periods, overtime and reserve duty pay).
        4. $16 million – Oman, et al. v. Delta Air Lines Inc., Case No. 15-CV-131 (N.D. Cal. May 15, 2024) (preliminary settlement approval sought in a class action to resolve claims alleging that the company failed to provide accurate wage statements in violation of California Labor Law).
        5. $14 million – Bolding, et al. v. Banner Bank, Case No. 17-CV-601 (W.D. Wash. Jan. 8, 2024)(final settlement approval sought in a class and collective action to resolve claims that the company misclassified mortgage loan officers as exempt employees and thereby failed to pay overtime compensation in violation of federal and state wage & hour laws).

      Top Labor Class Action Settlements In 2024

      The top 10 labor class action settlements totaled $129.67 million in 2023.

        1. $55 million – Saunders, et al. v. State of Michigan Unemployment Insurance Agency, Case No. 22-000007-MM (Mich. Cl. Ct. Apr. 16, 2024) (preliminary settlement approval granted in a class action to resolve claims that unemployment benefits were improperly clawed back without notice during the COVID-19 pandemic)
        2. $20 million – In Re International Longshore and Warehouse Union, Case No. 23-BK-30662 (N.D. Cal. Bankr. Feb. 22, 2024) (preliminary settlement approval granted in a class action to resolve claims alleging that the union of engaging in an unlawful boycott of the company during a labor dispute).
        3. $20 million – Bauserman, et al. v. State Of Michigan Unemployment Insurance Agency, Case No. 15-000202 (Mich. Ct. Claims Jan. 29, 2024) (final settlement agreement granted in a class action to resolve claims over the Michigan Unemployment Insurance Agency’s use of a computer program to detect fraudulent claims, which resulted in thousands of false fraud determinations).
        4. $3.8 million – Moliga, et al. v. Qdoba Restaurant Corp., Case No. 23-2-11540-6 (Wash. Super. Ct. Apr. 10, 2024) (preliminary settlement approval granted in a class action to resolve claims that the company violated Washington state’s pay transparency law when it failed to disclose pay information in job postings).
        5. $2.5 million – Arrison, et al. v. Walmart Inc., Case No. 21-CV-481 (D. Ariz. Feb. 16, 2024) (preliminary settlement approval granted in a class action to resolve claims that the company should have paid nearly 80,000 workers for the time they spent undergoing COVID-19 screenings before clocking in for their shifts).

      Top Privacy Class Action Settlements In 2024

      The top 10 privacy class action settlements totaled $1.32 billion in 2023, and $896.7 million in 2022.

        1. $90 million – In Re Facebook Internet Tracking Litigation, Case Nos. 22-16903 and 22-16904 (9th Cir. Feb. 21, 2024) (final settlement approval affirmed in a class action to resolve claims alleging that Facebook used cookies to track the internet activity of logged-out social network users who visited third-party websites containing Facebook “Like” button plugins).
        2. $75 million – Rogers, et al. v. BNSF Railway Co., Case No. 19-CV-3083 (N.D. Ill. June 18, 2024) (final settlement approval granted in a class action to resolve claims alleging that the company unlawfully scanned drivers’ fingerprints for identity verification purposes without written, informed permission or notice when they visited BNSF rail yards).
        3. $62 million – In Re Google Location History Litigation, Case No. 18-CV-5062 (N.D. Cal. May 3, 2024) (final settlement approval granted in a class action to resolve claims that Google illegally collected and stored smartphone users’ private location information).
        4. $52.5 million – Schreiber, et al. v. Mayo Foundation For Medical Education And Research, Case No. 22-CV-188 (W.D. Mich. May 25, 2024) (final settlement approval granted in a class action to resolve claims that the company shared subscriber information with third parties without getting consumer consent).
        5. $52 million – In Re Clearview AI Inc. Consumer Privacy Litigation, Case No. 21-CV-135 (N.D. Ill. June 21, 2024) (preliminary settlement approval granted in a novel settlement in a multidistrict litigation targeting Clearview AI’s allegedly unlawful practice of “scraping” internet photos to collect biometric facial data wherein the class will receive a 23% stake in the company).

      Top Products Liability And Mass Tort Class Action Settlements In 2024

      The top 10 products liability / mass tort class action settlements totaled $25.83 billion in 2023, and $50.32 billion in 2022.

        1. $10.3 billion – In Re Aqueous Film-Forming Foams Product Liability Litigation, MDL 2873 (D.S.C. Mar. 29, 2024) (final settlement approval granted in a class action to resolve claims with 3M by utilities that maintain it’s liable for the damage they have and will incur due to its signature PFAS that were used for decades in specialized fire suppressants, called aqueous film-forming foams (AFFF), that were sprayed directly into the environment and reached drinking water).
        2. $1.18 billion – Camden, et al. v. E.I. DuPont de Nemours & Co., Case No. 23-3230 (D.S.C. Feb. 8, 2024) (final settlement approval granted in a class action to resolve claims in a multidistrict litigation for the firefighting agent aqueous film forming foam (AFFF), which contains per- and polyfluoroalkyl substances (PFAS).
        3. $1.1 billion – Philips Recalled CPAP, Bi-Level PAP, And Mechanical Ventilator Products Liability Litigation, Case No. 21-MC-1230 (W.D. Penn. Apr. 29, 2024) (settlement reached in a multi-district litigation claiming that degraded foam in breathing machines caused plaintiffs personal injuries or will require long-term medical monitoring).
        4. $916 million – State Of Hawaii, et al. v. Bristol-Myers Squibb Co., Case No. 1CC141000708 (Hawaii Cir. Ct. May 21, 2024) (court found in favor of the plaintiffs and ordered payment by the companies to resolve claim alleging they marketed and sold Plavix in an unfair and deceptive manner, and that the companies failed to disclose that the drug could be harmful to those of East Asian and Pacific Islander ancestry).
        5. $750 million – In Re Aqueous Film-Forming Foams Products Liability Litigation, Case No. 18-MN-2873 (D.S.C. June 11, 2024) (preliminary settlement approval granted to resolve claims that Johnson Controls International PLC subsidiary Tyco Fire Products LP’s public water systems’ federal claims that some “forever chemicals” they detected in their supplies came from firefighting foam it made).

      Top Securities Fraud Class Action Settlements In 2024

      The top 10 securities fraud class action settlements totaled $5.4 billion in 2023, and $3.25 billion in 2022.

        1. $580 million – Iowa Public Employees’ Retirement System, et al. v. Bank of America Corp. Litigation, Case No. 17-CV-6221 (S.D.N.Y. Sept. 4, 2024) (final settlement approval granted in a class action to resolve claims alleging that the defendants conspired to block and boycott new offerings that would have increased competition and improved the efficiency and transparency of the market, in violation of Section 1 of the Sherman Act).
        2. $490 million – In Re Apple Inc. Securities Litigation, Case No. 19-CV-2033 (N.D. Cal. June 3, 2024) (preliminary settlement approval granted in a class action to resolve claims that Apple’s CEO Tim Cook defrauded shareholders by concealing falling demand for iPhones in China).
        3. $434 million – In Re Under Armour Securities Litigation, Case No. RDB-17-388 (D. Md. June 21, 2024) (settlement reached in a class action brought by investors alleging that the company inflated stock prices by hiding declining demand for its products).
        4. $350 million – In Re Alphabet Inc. Securities Litigation, Case No. 18-CV-6245 (N.D. Cal. Apr. 9, 2024) (preliminary settlement approval granted in a class action to resolve claims that the company deceived them about a March 2018 software glitch that allegedly gave third-party app developers the ability to access the private profile data of 500,000 users of the Google Plus social media site).
        5. $192.5 million – Chabot, et al. v. Walgreens Boots Alliance Inc., Case No. 18-CV-2118 (M.D. Penn. Feb. 7, 2024) (final settlement approval granted in a class action to resolve claims that the company’s executives lied about the likelihood of an ultimately unsuccessful merger between the two drugstore chains).

      Top TCPA Class Action Settlements In 2024

      The top 10 TCPA class action settlements totaled $103.45 million in 2023, and $134.13 million in 2022.

        1. $21.88 million – Smith, et al. v. Assurance IQ LLC, Case No. 2023-CH-09225 (Ill. Cir. Ct. Sept. 3, 2024) (final settlement approval granted in a class action to resolve claims alleging that the company violated the Telephone Consumer Protection Act with unsolicited robocalls).
        2. $9.7 million – Berman, et al. v. Freedom Financial Network LLC, Case No. 18-CV-1060 (N.D. Cal. Feb. 16, 2024) (final settlement approval granted in a class action to resolve claims alleging that the debt consolidation company and its subsidiaries made telemarketing calls which violated the Telephone Consumer Protection Act).
        3. $9 million – Moore, et al. v. Robinhood Financial LLC, Case No. 21-CV-1571 (W.D. Wash. July 16, 2024) (final settlement approval granted in a class action to resolve claims that the company’s referral text messages violated Washington telemarketing laws).
        4. $7 million – Williams, et al. v. Choice Health Insurance LLC, Case No. 23-CV-292 (M.D. Ala. July 9, 2024) (final settlement approval granted in a class action to resolve claims that the company violated the TCPA with unsolicited marketing calls).
        5. $2 million – Burnett, et al v. CallCore Media Inc., Case No. 21-CV-3176 (S.D. Tex. June 25, 2024) (final settlement approval granted in a class action to resolve claims the company placed prerecorded phone calls to consumers in violation of state laws and the federal TCPA).

       

      Posted on by Alex W. Karasik

      EEOC Mid-Year Lawsuit Filing Update For Fiscal Year 2024


      By Alex W. Karasik, Gerald L. Maatman, Jr. and Jennifer A. Riley

      Duane Morris Takeaways: The EEOC’s fiscal year (“FY 2024”) spans from October 1, 2023 to September 30, 2024. Through the midway point of FY 2024, EEOC enforcement litigation filings have been noticeably down. In the first six months of FY 2023, there were 29 new lawsuits filed by the Commission, while only 14 lawsuits were filed through the midway point of FY 2024.

      Traditionally, the second half of the EEOC’s fiscal year – and particularly in the final months of August and September – are when the majority of filings occur. Even so, an analysis of the types of lawsuits filed, and the locations where they are filed, is informative for employers in terms of what to expect during the fiscal year-end lawsuit filing rush in September.

      Cases Filed By EEOC District Offices

      In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most active in terms of filing new cases over the course of the fiscal year. 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 office.

      The most noticeable trend of the first six months of FY 2024 is that the Atlanta and Philadelphia District Offices already filed three lawsuits each. Houston, Indianapolis, and New York each have two lawsuit filings, and Dallas and Chicago have one each. That means that many of the district offices have yet to file a lawsuit at all in FY 2024. But for employers in the Atlanta and Philadelphia metropolitan areas, these early tea leaves suggest that a higher likelihood of pending charges may turn into federal lawsuits by the end of Summer to next Fall.

      Analysis Of The Types Of Lawsuits Filed In First Half Of FY 2024

      We also analyzed the types of lawsuits the EEOC filed throughout the first six months, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities. The chart below shows the EEOC filings by allegation type.

      The percentage of each type of filing has remained fairly consistent over the past several years. However, in FY 2024, nearly every filing has contained Title VII claims, with 12 of the 14, or 87% alleging these violations. This is a major increase over past years — in FY 2023, Title VII claims in 59% of all filings, 69% in FY 2022, and 62%. ADA cases were alleged in three lawsuits filed, for 21% of the cases, a decrease from the EEOC’s FY 2023 filings of 31%, 18% in FY 2022, and 36% in FY 2021. There was also an ADEA claim in one of the lawsuits and Pregnancy Discrimination Act claim in another.

      The graph set out below shows 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, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.

      The industries impacted by EEOC-initiated litigation have also remained consistent in FY 2024. The chart below details that hospitality, healthcare, and retail employers have maintained their lead as corporate defendants in the last 18 months of EEOC-initiated litigation.

      Notable 2024 Lawsuit Filings

      Gender Identity Discrimination

      In EEOC v. Sis-Bro, Inc., Case No. 24-CV-968 (S.D. Ill. Mar. 28, 2024), the EEOC brought suit alleging that the farm violated federal law when it allowed an employee to be harassed because of her sex and gender identity after she began transitioning genders. The EEOC contended that the employee was subjected to frequent, derogatory comments about the employee’s gender identity; the co-owner refused to call the targeted employee by her name and referred to her by her former name; repeatedly told her she was “a guy”; and criticized her use of employer-provided health insurance and leave for gender affirming care, in violation of Title VII of the Civil Rights Act.

      Disability Discrimination

      In EEOC v. Atlantic Property Management, Case No. 24-CV-10370 (D. Mass. Oct. 4, 2023), the EEOC filed an action on behalf of a new hire who the company allegedly rescinded a job offer following the employee’s cancer diagnosis. The EEOC alleged that the individual was offered employment as an executive administrative assistant to the president and vice president of the two companies. Shortly after the offer of employment, the employee was diagnosed with breast cancer. Her doctor confirmed she was able to perform all aspects of her position, but she would need to receive treatment weekly resulting in a need for some limited time off from work. When she provided her doctor’s note to the companies, the president decided to withdraw her job offer without any discussion with the employee, which the EEOC alleged violated the ADA.

      Race / National Origin Discrimination

      In EEOC v. Bob’s Tire Company, Case No. 24-CV-10077 (D. Mass. Jan. 10, 2024), the EEOC filed an action alleging that the company violated Title VII of the Civil Rights Act by subjecting employees to egregious and constant harassment, including the owner telling Hispanic employees to “go back to [their] country”; calling Guatemalan employees “f—ing Guatemalans”; donning a U.S. Immigration and Customs Enforcement hat to intimidate Hispanic employees; and calling employees homophobic slurs. Additionally, the EEOC contended that employees were also harassed by a co-worker because of their sex, race, and national origin, and at least one employee complained to the owner, who retaliated against this complaining employee by mocking him for being in a romantic and/or sexual relationship with the harassing co-worker.

      These filings illustrate that the EEOC will likely continue to prioritize sex, disability, and race discrimination claims in the second half of FY 2024.

      March 2024 Release Of Enforcement Statistics

      On March 12, 2024, the EEOC published its fiscal year 2023 Annual Performance Report (FY 2023 APR), highlighting the Commission’s recovery of $665 million in monetary relief for over 22,000 workers, a near 30% increase for workers over Fiscal Year 2022. This annual publication from the EEOC is noteworthy for employers in terms of recognizing the EEOC’s reach, understanding financial exposure for workplace discrimination claims, and identifying areas where the EEOC may focus its litigation efforts in the coming year. It is a must read for corporate counsel, HR professional, and business leaders.

      As we blogged about here, the Commission reported having one of the most litigious years in recent memory in FY 2023, with 142 new lawsuits filed, marking a 50% increase from FY 2022. Among these new lawsuits, 86 were filed on behalf of individuals, 32 were non-systemic suits involving multiple victims, and 25 were systemic suits addressing discriminatory policies or affecting multiple victims. The EEOC also touted that it obtained $22.6 million for 968 individuals in litigation, while resolving 98 lawsuits and achieving favorable results in 91% of all federal district court resolutions.

      These numbers show the EEOC is still aggressively litigating discrimination claims, and despite the slow start in FY 2024, we anticipate the EEOC will turn up the jets in the second half of the fiscal year.

      Strategic Priorities

      The Commission also reported significant progress in its “priority areas” for 2023, which included combatting systemic discrimination, preventing workplace harassment, advancing racial justice, remedying retaliation, advancing pay equity, promoting diversity, equity, inclusion and accessibility (“DEIA”) in the workplace, and, significantly, embracing the use of technology, including artificial intelligence, machine learning, and other automated systems in employment decisions.

      In 2023, the EEOC resolved over 370 systemic investigations on the merits, resulting in over $29 million in monetary benefits for victims of discrimination. The Commission also reported that its litigation program achieved a 100% success rate in its systemic case resolutions, obtaining over $11 million for 806 systemic discrimination victims, as well as substantial equitable relief.  Further, the Commission made outreach and education programs a priority in 2023, and specifically sought to reach vulnerable workers and underserved communities, including immigrant and farmworker communities, hosting over 680 events for these groups and partnering with over 1,120 organizations, reaching over 107,000 attendees.

      These statistics confirm the Commission’s prowess, dictating that employers should take heed in the coming months as the EEOC seeks to match these gaudy figures.

      Other Notable Developments

      Beyond touting its monetary successes, and litigation accomplishments, the FY 2023 APR also highlights the newly enacted Pregnant Workers Fairness Act (“PWFA”), which provides workers with limitations related to pregnancy, childbirth, or related medical conditions the ability to obtain reasonable accommodations, absent undue hardship to the employer.

      The Commission began accepting PWFA charges on June 27, 2023 (the law’s effective date) and has conducted broad public outreach relating to employers’ compliance obligations under the new law.

      Takeaways For Employers

      By all accounts, FY 2023 was a record-breaking year for the EEOC. As demonstrated in the report, the Commission has pursued an increasingly aggressive and ambitious litigation strategy to achieve its regulatory goals.  The data confirms that the EEOC had a great deal of success in obtaining financially significant monetary awards.

      Although the early numbers are lagging as compared with last year, we anticipate that the EEOC will continue to aggressively pursue its strategic priority areas in FY 2024.  There is no reason to believe that the annual “September surge” is not coming, in what could be another precedent-setting year.  We will continue to monitor EEOC litigation activity on a daily basis, and look forward to providing our blog readers with up-to-date analysis on the latest developments.

      Finally, we are thrilled to announce that will be providing a webinar on May 13, 2024, to further analyze the above data.  Employers will gain insight on what they should be doing to ready themselves for the remainder of FY 2024.  Save the date and stay tuned!

      Posted on by Gerald L. Maatman, Jr.

      Texas Federal Court Throws Out Data Breach Class Action

      By Gerald L. Maatman, Jr., Jennifer A. Riley, and Emilee N. Crowther

      Duane Morris Takeaways: In Austin v. Fleming, Nolen & Jez, LLP, No. 4:23-CV-00901, 2024 U.S. Dist. LEXIS 60696 (S.D. Tex. Apr. 2, 2024), Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas granted Defendant’s motion for summary judgment in a data breach class action. The Court found that the time Plaintiff’s allegations about the time spent – (i) researching the data breach, (ii) exploring credit monitoring and identity theft options, (iii) self-monitoring her accounts, and (iv) seeking legal counsel – were not compensable damages and could not support her claims.  This case serves as an important reminder that named Plaintiffs in data breach class actions must have suffered an actual, viable, concrete injury to sustain their claims.

      Case Background

      On February 6, 2023, a cybercriminal breached Defendant’s servers and obtained some of its confidential client data.  Id. at *1.  The cybercriminal then demanded Defendant pay money to avoid the publication of Defendant’s confidential client data on the dark web.  Id.  After Defendant sent out data breach notice letters to their potentially affected clientele, the named Plaintiff, a former client of Defendant, filed a class action complaint against Defendant asserting claims for negligence, breach of confidence, breach of implied contract, and breach of implied covenant of good faith and fair dealing.  Id.

      Defendant moved for summary judgment on the basis that Plaintiff had not, and could not, establish that she had suffered any damages as a result of the data breach.  Id.  In response, Plaintiff presented an affidavit from a putative class member who had suffered monetary damages due to identity theft.  Id.

      The Court’s Decision

      The Court ruled that Plaintiff could not rely on a putative class member’s purported damages to support her claims prior to class certification, and as such, any evidence supporting the claims of other class members was “irrelevant.”  Id. at 4.  As a result, the Court only considered Defendant’s motion for summary judgment as it pertained to Plaintiff’s individual claim against the Defendant. Id.

      The Court held that none of the following allegations of harm were sufficient for Plaintiff to maintain her claims — “time spent verifying the legitimacy and impact of the data breach, exploring credit monitoring and identity theft insurance options, self-monitoring her accounts and seeking legal counsel regarding her options for remedying and/or mitigating the effects of the data breach.”  Id. at *5-6.

      Accordingly, the Court found that because Plaintiff could not show “that she was injured by the data breach” or that “she suffered any damages,” summary judgment was proper.  Id. at *6.

      Implications For Companies

      The Court’s ruling in Austin v. Fleming underscores the importance of damages and a viable injury-in-fact in data breach class actions.  The first line of defense in any data breach class action challenging whether the named Plaintiff suffered an actual, concrete injury.  Used effectively, companies can parlay a Plaintiff’s claimed damages in data breach class actions as quick off-ramp out of litigation.

      Posted on by Gerald L. Maatman, Jr.

      Texas Federal Court Strikes Down NLRB’s 2023 Joint Employer Rule

      By Gerald L. Maatman, Jr., Jennifer A. Riley, and Emilee N. Crowther

      Duane Morris Takeaways: In Chamber of Commerce of the U.S.A. et al. v. NLRB et al., No. 6:23-CV-00553, 2024 WL 1045231 (E.D. Tex. Mar. 8, 2024), Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas granted the Plaintiffs motion for summary judgment and denied the Defendants cross-motion for summary judgment. Under the NLRB’s 2023 joint employer rule, even companies who exercise just “indirect control” over the employees of another entity could be considered a joint employer under federal labor laws. The Court held that the NLRB’s 2023 joint employer rule did not provide a meaningful two-part test to determine joint employer status, and that the NLRB’s reason for rescinding the 2020 Rule was arbitrary and capricious.  Accordingly, the Court vacated the 2023 Rule and reinstated the 2020 Rule. 

      This ruling is a huge win for businesses, as it reinstates the 2020 Rule’s heightened “substantial direct and immediate control” standard for determining joint-employer status.

      Case Background

      In 2020, the NLRB issued a joint-employer final rule, providing that an entity “is a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment” (the “2020 Rule”).  Id. at 12 (quoting 29 C.F.R. § 103.40(a) (2020)).  Under the 2020 Rule, a company is a joint employer when it exercises “substantial direct and immediate control” over one or more of the following “essential terms or conditions of employment” – “wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.”  Id. at 12-13 (quoting 29 C.F.R. § 103.40(a), (c)(1) (2020)).

      In 2023, the NLRB rescinded the 2020 Rule and enacted a new joint-employer final rule (the “2023 Rule”).  Id. at 14.  The 2023 Rule defined a joint employer as an entity that exercised “reserved control” or “indirect control” over one of seven terms and conditions of employment, including: “(1) work rules and directions governing the manner, means, and methods of the performance, and (2) working conditions related to the safety and health of employees.”  Id. (29 C.F.R. § 103.40(d)-(e)).

      In 2023, Plaintiffs sued the Defendants, challenging the 2023 Rule on two grounds: (i) that it is inconsistent with the common law; and (ii) that it is arbitrary and capricious.  Id. at 14-15.

      In response, the Defendants cross-moved for summary judgment on the Plaintiffs claims, alleging that the 2023 Rule was based on, and is governed by, common law principles, that it is not arbitrary and capricious, and that the Board acted lawfully in rescinding the 2020 Rule.  Id. at 20.

      The Court’s Decision

      The Court granted the Plaintiffs motion for summary judgment, and denied Defendants cross-motion for summary judgment, thereby “vacating the 2023 Rule, both insofar as [the 2023 Rule] rescind[ed] the [2020 Rule] and insofar as it promulgate[d] a new version of [the 2020 Rule].”  Id. at 30.

      First, the Court focused on the main dispute between the parties, i.e., whether the 2023 Rule had a meaningful two-step test to determine an entity’s joint employer status, or the 2023 Rule only had one step for all practical purposes.  Id. at 20-21.  The Defendants argued that the 2023 Rule’s joint-employer injury had the following steps: (i) “an entity must qualify as a common-law employer of the disputed employees”; and (ii) “only if the entity is a common-law employer, then it must also have control over one or more essential terms and conditions of employment.”  Id.  The Court disagreed, finding that “an entity satisfying step one, along with some other entity doing so, will always satisfy step two,” since “an employer of a worker under the common law of agency must have the power to control ‘the material details of how the work is to be performed,” and the Defendants proposed step two included “work rules and directions governing the manner, means and methods of the performance of duties.”  Id. at 22-23 (internal citations omitted).

      The Court then analyzed whether the Board lawfully rescinded the 2020 Rule.  It opined that “to survive arbitrary-and-capricious review, agency action must be ‘reasonable and reasonably explained.”  Id. at 28-29.  The Court held that the Board did not provide a “reasonable or reasonably explained” purpose for rescinding the 2020 Rule, and therefore, its recension was arbitrary and capricious.  Id. at 29.  Since “vacatur of an agency action is the default rule” in the Fifth Circuit when such rule “is found to be discordant with the law or arbitrary and capricious”, the Court vacated the 2023 Rule.  Id. at 30.

      Implications For Employers

      The Court’s vacatur of the 2023 Rule in Chamber of Commerce of USA et al. v. NLRB et al. is an important victory for employers. The 2023 Rule would have made “virtually every entity that contracts for labor . . . a joint employer.” Id. at 25. Moreover, the 2020 Rule, in addition to imposing the heightened “substantial direct and immediate control standard,” provides integral guidance for what actions are considered joint, and what actions are not.  The Court’s decision to reinstate the 2020 Rule, therefore, is also a significant win for employers.

      © 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

      The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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