Jamar D. Davis – Class Action Defense

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

Oregon Federal Court Denies Class Certification Due To The Impact Of Unique Defenses On The Named Plaintiffs

By Gerald L. Maatman, Jr., Jennifer A. Riley, Katherine L. Alphonso, and Jamar D. Davis

Duane Morris Takeaways: On May 28, 2026, in Ashley Schroeder et al. v. University of Oregon, Case No. 6:23-CV-01806, 2026 WL 1494043 (D. Or. May 28, 2026), Judge Michael J. McShane of the U.S. District Court for the District of Oregon – without deciding whether the University of Oregon adequately supports or invests in women athletics – reaffirmed that the typicality requirement for class certification cannot be met when “there is a danger that absent class members will suffer if their representative is preoccupied” with its own unique defenses. The ruling is a significant one for corporate counsel and provides a blueprint for defense of class action claims.

Case Background

In the 2000s, particularly at the collegiate level and among Division 1 institutions in warm-weather conferences, beach volleyball was a rapidly growing sport. Id. at *2. In 2009, the National Collegiate Athletic Association (“NCAA”), under its Emerging Sports for Women program, designated women’s beach volleyball an “emerging sport” for women. Id. Notably, the NCAA Emerging Sports for Women program was designed to encourage schools to create more opportunities for women’s athletic participation to meet the requirements of Title IX of the Education Amendment of 1972 (“Title IX”). Id.

As a state educational institution, the University of Oregon (the “University”) receives federal funds and is therefore subject to Title IX requirements. Id. at *1. In 2013, the University’s athletic department announced the addition of women’s volleyball to its roster of varsity teams. Id. at *2. Since its announcement, the University has worked to approve new beach volleyball facilities, provide locker rooms, make scholarships available for recruitment, and hire a new coach. Id. It currently sponsors eight men’s varsity teams (baseball, basketball, cross country, football, golf, tennis, indoor track and field, and outdoor track and field) and twelve women’s varsity teams (acrobatics and tumbling, basketball, beach volleyball, cross country, golf, lacrosse, soccer, softball, tennis, indoor track and field, outdoor track and field, and (indoor) volleyball). Id. at *1. The University also hosts forty-one club sports teams, including but not limited to rowing, which operate outside of the school’s athletic department and are generally student organized. Id. at *1-2.

Plaintiffs — consisting of female student athletes attending the University, five of which are current or former members of the women’s beach volley team (“Beach Volleyball Plaintiffs”) and four of which are current or former members of the women’s club rowing team (“Rowing Plaintiffs”) — filed a complaint alleging the University continues to violate Title IX by depriving its female student-athletes of equal treatment, equal access to athletic financial aid permissible under federal law, and equal opportunities to participate in varsity athletics. Id. at *1.

In pursuit of their claims, Plaintiffs asked the Court to certify the following classes: (1) Equal Treatment and Benefits Class defined as “all current and future female students who participate or will participate in intercollegiate varsity athletics at [the University]”; (2) Damages Class for the Equal Treatment and Benefits claim; (3) Equal Financial Aid Class defined as “all current and future female students who participate or will participate in intercollegiate varsity athletics at [the University] and do not receive all athletic financial aid permissible under federal law”; (4) Damages Class for the Equal Financial Aid claim; and (5) Effective Accommodation Class defined as “all present and future female students at [the University] who are being deprived of the opportunity to participate on women’s varsity intercollegiate athletic teams.” Id. at *3-4.

The District Court’s Decision

Judge McShane denied class certification for four of the five requested classes, namely the Equal Treatment and Benefits Class, both Damages Classes, and the Effective Accommodation Class. Id. at *5-8. The Court stayed its class certification consideration as to the Equal Financial Aid Class pending final disposition of the underlying claim on its merits. Id. at *4-5.

With regards to the Equal Treatment and Benefits Class, the Court held Federal Rule of Civil Procedure 23(a)’s typicality requirement ultimately prevented certification of the class. Id. at *6. While factual variations between a named plaintiff and proposed class members do not per se defeat typicality, typicality cannot be met when “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.” Id. at *6 (internal citation omitted).

Here, rather than discussing all purported class members, Plaintiffs focused almost exclusively on the unique experiences of the Beach Volleyball Plaintiffs. Id. For example, unlike most of the other women’s varsity teams, the beach volleyball team practiced and competed off campus; until September 2025, the beach volleyball team was the only varsity team without its own locker room; and the beach volleyball team was the only varsity team without a dedicated full-time head coach who was not also coaching another team. Id. Moreover, the Beach Volleyball Plaintiffs “would need to address whether their participation in an ‘emerging’ varsity sport influences the merits of their Title IX claim.” Id. The Court expressed concern that addressing the unique experiences of the Beach Volleyball Plaintiffs would steal the focus of the litigation, creating an impermissible danger to absent class members. Id.

With regards to the two Damages Classes, the Court held a class action is not a superior method to litigate Plaintiffs’ damages claims because there are “too many distinct individual determinations that frustrate [class action] manageability. Id. at *7; see Fed. Rule of Civ. Prod. 23(b)(3). Again, the atypical experiences of the Beach Volleyball Plaintiffs would require individualized inquiry into any alleged liabilities and/or applicable remedies. Id. In addition, individualized inquiries would be needed “to determine which student-athletes were eligible for various forms of financial aid and the amount of aid they hypothetically would have received.” Id. This is only further complicated by “the University’s policy of allocating financial aid on a team-by-team basis and allowing coaches to make discretionary awards to student-athletes,” resulting in a requisite analysis into which student-athletes may have been eligible for aid but were not necessarily awarded scholarships because of other individualized considerations. Id.

With regards to the Effective Accommodation Class, the Court held the Rowing Plaintiffs were not members of the proposed class because they failed to demonstrate “they have the abilities to participate in varsity athletics . . . ” as their rowing times were markedly lower than the worst performing Division 1 rowing teams. Id. at *8 (emphasis in original). As such, Rowing Plaintiffs cannot be deprived of the opportunity to participate in varsity athletics. Id. Moreover, the Rowing Plaintiffs’ “inability to compete on a varsity level subjects them to a unique defense that defeats typicality.” Id. As mentioned above, rowing was a club sport operating outside of the school’s athletic department.

An interesting focus in the Court’s ruling was its dicta regarding the “proverbial elephant in the Title IX room” — men’s college football. Id. at *2. The Court reasoned that college football has evolved into a highly commercialized enterprise requiring investments—“extensive game-day operations and security; expansive locker room and training facilities; specialized coaching staffs numbering in the dozens; strength and conditioning programs; sports medicine and physical therapy personnel; recruiting operations; charter travel; housing and meal programs; academic tutoring; scholarships; and year-round training infrastructure” — comparative to the scale of its revenue. Id. at *2-3. Specifically, Title IX compliance cannot be measured solely on a dollar-for-dollar basis and must be “viewed across the athletic program as a whole.” Id. at *3.

Implications For Universities And Other Title IX Institutions

The Court’s message to the defense bar here is clear: continue to distinguish the named plaintiffs from the proposed class members (through factual distinctions, discrete issues, shortcomings on judicial efficiency, and unique defenses) as much as possible to oppose class certification. The opinion also provides helpful insight into how the statutory and regulatory framework of Title IX permits disparate expenditures among varying collegiate sports (namely men’s football when compared to other sports), serving as a defense into the extraordinary institutional investments associated with men’s college football that does not run counter to the aims of Title IX.

May 19, 2026May 19, 2026 by Gerald L. Maatman, Jr.

California Supreme Court Rules That A Smash-And-Grab Hardware Theft, With No Access To Sensitive Records, Does Not Automatically Result In Multi-Million Or Billion Dollar Liability Under California Privacy Laws

By Gerald L. Maatman, Jr., Jennifer A. Riley, Ryan T. Garippo, and Jamar D. Davis

Duane Morris Takeaways: On May 14, 2026, in J.M. v. Illuminate Education, Inc., No. S286699, 2026 Cal. LEXIS 2657 (May 14, 2026), the California Supreme Court held that the California Court of Appeal decision to deny a demurrer was improper for an incorrect application of privacy laws. This decision emphasizes why defendants should confirm whether a plaintiff sufficiently pled a cause of action that aligns with the remedies that he or she seeks to recover. Further, the opinion clarifies that injury under the Confidentiality of Medical Information Act, Cal. Civ. Code § 56, et seq. (“CMIA”) depends on whether the company subjects medical information to a substantial risk of unauthorized use or access, not whether the unauthorized user actually views sensitive data.

Case Background

Illuminate Education, Inc. (“Illuminate”) is a technology company that helps educators determine the academic progression of an individual student, as well as their areas of potential improvement. The company uses data from individual students, including medical data, to make these determinations. Illuminate provided its services to the Ventura County Office of Education, under which Plaintiff (a minor) was a student. Plaintiff provided his medical information to the Ventura County Office of Education, which then provided Plaintiff’s health data to Illuminate.

In 2022, Illuminate became aware of suspicious activity related to its systems. Illuminate promptly initiated an investigation. The investigation confirmed an unauthorized user gained access to Illuminate’s records, including students’ medical information. Illuminate sent a notice to the guardians of the affected students, including Plaintiff, informing them of the scope of the potential disclosure. The notice made it clear that Illuminate found no evidence that the unauthorized user (or users) was successful in actual or attempted misuse of the data.

After the breach, Plaintiff alleges that he received several mail solicitations at an address provided to only the Ventura County Office of Education. As a result, Plaintiff filed a class action lawsuit alleging that Illuminate, as health care provider, negligently managed the students’ medical records under the CMIA and failed to expediently disclose the data breach to those affected under the Customer Records Act, Cal. Civ. Code § 1798.80, et seq. (“CRA”).

The trial court sustained Illuminate’s demurrer, without leave to amend, after Plaintiff twice failed to cure deficiencies in his pleadings. The Court of Appeal reversed that decision, holding that the trial court abused its discretion by sustaining the demurrer, because Plaintiff may have been able to cure the defects in his complaint if a different legal analysis was applied.

Following that decision, the California Supreme Court set out to resolve the disagreement.

The California Supreme Court’s Decision

The California Supreme Court’s analysis hinges on its statutory interpretation, involving the plain reading of the statutes and their legislative histories. Generally, this analysis fell into three distinct categories.

First, Justice Goodwin Liu, writing for the California Supreme Court, reasoned that Plaintiff failed to establish a valid claim under CMIA because he could not allege that Illuminate was a “provider of health care” under California Civil Code section 56.06. Relying on the text of section 56.06, the Supreme Court explained there are two ways for a business to qualify as a “provider of health care”: (1) a covered business maintains medical records to make the information available to either an individual or a health care provider upon request of the individual or provider; or (2) a covered business makes medical information available for an individual or a health care provider upon request to allow an individual to manage their information, or to help diagnose or treat the individual.

The Supreme Court also confirmed this interpretation by relying on the legislative history of the statutes. The Supreme Court observed that the legislative history confirmed that the legislature was concerned with situations where diabetics used a data platform to record glucose levels, or where people with hypertension used platforms to track their blood pressure. Relying on the legislative history, the Supreme Court observed that Plaintiff never alleged that Illuminate created a repository of student records that allowed the students to create their own records, or to access and share those records at their discretion. Instead, Plaintiff asserted that Illuminate stored medical information to help educators monitor, evaluate, and address student needs. As a result, Illuminate was not a “provider of health care,” because it did not make medical records available upon request of the individual or provider.

The Supreme Court also quickly addressed Plaintiff’s inability to satisfy the alternative method for determining whether Illuminate is a “provider of health care” because Plaintiff never alleged that Illuminate “provides medical information to health care providers or individuals for diagnosis and treatment of an individual.” Illuminate Education, 2026 Cal. LEXIS 2657, at *12. As a result, and after quickly dispensing with a few other arguments, the Supreme Court concluded that Illuminate was not a “provider of health care” under the CMIA.

Second, in addition to analyzing whether Illuminate was a “provider of health care,” the Supreme Court also determined whether Plaintiff had alleged sufficient injury to state a claim under the CMIA. The Supreme Court disagreed with Illuminate’s argument that injury requires an unauthorized person to view medical data, and ruled that a plaintiff alleges injury by claiming that the medical information was exposed to “a significant risk of unauthorized access or use.” Id. at *29.

The CMIA requires covered entities to “preserve[] the confidentiality” of medical information. Cal. Civ. Code § 56.101(a). The Supreme Court stated that “confidentiality” requires “keeping information private or secret” and clarified that this obligation applies regardless of whether an unauthorized party actually views the data. Illuminate Education, 2026 Cal. LEXIS 2657, at *26. (“[W]e reject the rule that no breach of confidentiality has occurred until medical information is actually viewed by an unauthorized person.”). Instead, the determination of whether a covered entity failed to preserve the confidentiality of data depends on a factor-based analysis that considers the “form, duration, and extent of the data breach, as well as any mitigation efforts by the covered entity.” Id. at *30. Thus, a plaintiff need not allege that his or her data was “actually viewed” by a third party, because that person is “unlikely to know what an unauthorized party has done with their data unless they suffer actual damage” and instead “[a]ll relevant circumstances must be considered” when determining whether confidentiality was breached. Id.

Third, for the CRA claim, the Supreme Court ruled that Plaintiff did not state a cause of action against Illuminate because Plaintiff was not a customer within the meaning of the statute. To bring suit under the CRA, a plaintiff must establish that he or she is a “customer” within the meaning of the statute. Boorstein v. CBS Interactive, Inc., 222 Cal. App. 4th 456, 467 (2013). A customer is “an individual who provides personal information to a business for the purpose of purchasing or leasing a product or obtaining a service from the business.” Cal. Civ. Code § 1798.80(c). Here, the Supreme Court found that Plaintiff never alleged that he provided any personal information to Illuminate to purchase or lease a product, or obtain a service from Illuminate. The Supreme Court observed that the Ventura County Office of Education purchased Illuminate’s services and provided the student information, not Plaintiff. Moreover, the Supreme Court disregarded Plaintiff’s argument that he was the “ultimate” customer of Illuminate because the CRA “does not authorize suit by all consumers or beneficiaries; it authorizes a civil action for an injured ’customer.’” Id. at *32.

In the end, the Supreme Court reversed the judgment of the Court of Appeal and remanded the matter for further proceedings.

Implications For Companies

This decision emphasizes the importance of ensuring that a plaintiff has sufficiently pled all causes of action asserted. When the CMIA or CRA are involved, companies must consider whether they are, in fact, a covered entity in order to determine whether they are subject to the statutes’ reach.

Further, to assert injury under the CMIA for a data breach claim, the analysis hinges on the risk of unauthorized use, not what an unauthorized user is able to do with the data. Thus, it is imperative that companies take all reasonable steps to retain the confidentiality of sensitive records, making an extra effort to ensure that hardware is secure.

For CRA claims, companies need to pay special attention to which entities solicit or contract for their services as attention to these details can potentially thwart a potential CRA claim.

In short, organizations that use such medical data, and operate in California, should take note of this decision because it impacts their defenses both positively and negatively going forward.

April 3, 2026April 3, 2026 by Gerald L. Maatman, Jr.

“A Matter Of Consent” – Ninth Circuit Finds Non-Mutual Offensive Collateral Estoppel Inappropriate In Invalidating Individual Arbitration Agreements Under The Federal Arbitration Act

By Gerald L. Maatman, Jamar D. Davis, and Caitlin Capriotti

Duane Morris Takeaways: On April 1, 2026, in Laura O’Dell et. al. v. Aya Healthcare Services, Inc., No. 25-1528, 2026 U.S. App. LEXIS 9420 (9th Cir. Apr. 1, 2026), a panel for the Ninth Circuit held that the U.S. District Court for the Southern District of California erred in relying on non-mutual offensive collateral estoppel to preclude the enforcement of hundreds of arbitration agreements based select arbitral awards from unappointed arbitrators for different parties. This decision reaffirms the principle of consent set forth in the Federal Arbitration Act (“FAA”) and the Ninth Circuit’s preference (in line with the FAA) for enforcement of valid arbitration agreements in individualized proceedings.

Case Background

Aya Healthcare Services, Inc. (“Aya”) is an agency the pairs traveling nurses and other supporting clinicians with hospitals in need. In 2022, four former employees filed a putative class action against Aya for allegedly reducing their pay mid-contract, asserting breach of contract, fraudulent inducement, state wage-and-hour violations, and violations under the Fair Labor Standards Act (FLSA). As a condition of employment, all employees signed arbitration agreements to resolve any employment-related disputes outside of the court system. Aya moved to compel arbitration, and the U. S. District Court for the Southern District of California (the “District Court”) granted the motion and compelled all four named plaintiffs to arbitration.

Aya proceeded to arbitrate with each of the four plaintiffs in four separate arbitrations. Each plaintiff challenged the validity of the arbitration agreements, and the delegation clause assigned the arbitrator (rather than the court) authority to decide whether the arbitration agreement was valid. Two arbitrators ruled the arbitration agreements were unconscionable, and two arbitrators ruled the arbitration agreements were valid. By the time the parties moved the District Court to confirm their respective arbitral awards, 255 additional plaintiffs had opted-in to the case pursuant to a collective action procedure under the FLSA. Aya moved to compel each of these plaintiffs to arbitration. In response, a newly assigned district judge raised sua sponte the issue of whether collateral estoppel barred Aya from enforcing the additional arbitration agreements against the opt-in plaintiffs. Ultimately, the District Court denied Aya’s motion to compel arbitration.

The District Court applied the doctrine of non-mutual offensive collateral estoppel to preclude the enforcement of the arbitration agreements between Aya and the 255 employees. This doctrine was “non-mutual” because a party different from the party in the original action is seeking preclusion and “offensive” because the new party is using a prior award as a sword (rather than a shield). However, the District Court only gave the collateral estoppel effect to the two decisions finding the arbitration agreements unconscionable, and awarded no such power to the decisions holding the arbitration agreements as valid. The Ninth Circuit reviewed the motion to compel arbitration de novo.

The Ninth Circuit’s Decision

The Ninth Circuit held that the District Court’s novel application of an equitable preclusion doctrine did not preclude the enforcement of the arbitration agreements because application of the doctrine runs contrary to FAA’s intention to enforce the agreed upon terms of valid arbitration agreements in individualized proceedings. “Precluding an arbitration that the parties had agreed to – because a different arbitrator in a different proceeding had concluded that an agreement between different parties was unconscionable – would render the parties’ consent meaningless,” wrote U.S. Circuit Judge Eric C. Tung (emphasis in original). This goes against the fundamental requirement that each arbitration agreement requires individualized resolution. The Ninth Circuit also stated that “the application of non-mutual offensive issue preclusion would also violate the principle of consent that the [Federal Arbitration Act (“FAA”)] incorporates.” Id. at *8. When parties enter arbitration agreements, the FAA serves to have those agreements enforced. Further, even when the validity of an arbitration agreement is at issue, the issue-preclusion doctrine is not a “generally applicable contract defense.” Id.

Further, the Ninth Circuit determined that the District Court’s order effectively transformed individual arbitration proceedings into a bellwether class action to which the parties never agreed. This also goes to the issue of consent. The Ninth Circuit cited the U.S. Supreme Court’s decisions in Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018), and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), as holding that imposing a class action without the parties’ consent (or adequacy of representation) and where the parties had agreed to individual arbitration is a violation of the FAA. Allowing one arbitration proceeding to preclude hundreds or thousands of arbitration agreements, as the logic of the District Court suggests, regardless of adequacy of representation, would strip the resulting class action from all its important protective features.

As a result, the Ninth Circuit reversed the District Court’s judgment and remanded for further proceedings.

Implications For Employers

This decision reaffirms the strength of the FAA and reiterates the Ninth Circuit’s preference for enforcing arbitration agreements on an individualized basis.

District court judges who may have personal preferences against arbitration cannot destroy the FAA with novel doctrines inconsistent with the FAA.