Category: Discrimination

By Gerald L. Maatman, Jr. and Christian J. Palacios

Duane Morris Takeaways:  On July 30, 2025, Judge Eric Komitee of the U.S. District Court for the Eastern District of New York dismissed a plaintiff’s ADA discrimination lawsuit against her employer after finding that the plaintiff failed to satisfy the statutory 180-day waiting period before receiving a right-to-sue (“RTS”) letter from the EEOC. The case, Prichard v. Long Island University, Case No. 23-CV-09269 (E.D.N.Y. July 30, 2025), is significant because it represents one of the first applications of Loper Bright Enters. v. Raimondo, 603 U.S. 369, 401 (2024) (“Loper Bright”), where a court has held that an EEOC regulation is incompatible with the text of an employment discrimination statute. This ruling is a critical development for employers seeking to control the timing of when a plaintiff can bring a discrimination claim and marks the first of many challenges to the longstanding deference the Commission has enjoyed when interpreting employment discrimination statutes in a post-Loper Bright world.

Background and The EEOC’s Early RTS Regulation

Cecilia Prichard, a financial aid counselor at Long Island University (“LIU”), was terminated in 2022 after exhausting her FMLA leave following a kidney transplant. Id. at 1. Prichard filed a charge with the EEOC on July 24, 2023, alleging disability discrimination under the Americans with Disabilities Act (“ADA”). At her request, the EEOC issued an early RTS letter only 57 days later — well before the 180-day statutory waiting period elapsed.

With her early RTS letter in-hand, Prichard commenced her suit in New York federal court against her employer, alleging it violated the ADA, as well as other state-specific human rights laws. Id. at 3. LIU moved to dismiss, arguing that the early RTS letter was invalid and thus, Prichard had not satisfied the precondition to filing suit under Title VII. See 42 U.S.C. § 2000e-5(f)(1)

By way of context, the EEOC regularly issues “early” RTS letters upon a charging party’s request prior to the expiration of Title VII’s 180-day statutory waiting period if the Commission determines that it is probable it will “be unable to complete its administrative processing of the charge within 180 days from the filing of the charge.” See 29 C.F.R. § 1601.28(a)(2). This regulation, as well as other regulations promulgated by the Commission, have previously enjoyed longstanding “Chevron deference,” which required judicial deference for agency interpretations of vague laws. In the Supreme Court’s 2024 ruling in Loper-Bright, it eliminated “Chevron deference,” holding it was the courts, not agencies, that determined statutory meaning. Loper Bright at 401. 

There is currently a circuit split regarding the Commission’s “early RTS” regulation, and it has been upheld as lawful by the Ninth, Eleventh, and Tenth Circuits (prior to Loper-Bright). See Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251 (9th Cir. 1980); Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994); Walker v. United Parcel Serv., Inc., 240 F.3d 1268 (10th Cir. 2001). In contrast, the D.C. Circuit has invalidated the regulation while the Third Circuit has opined, in dicta, that early RTS letters should be discouraged as contrary to congressional intent. See Martini v. Federal Nat. Mortg. Ass’n, 178 F.3d 1336 (D.C. Cir. 1991); Moteles v. Univ. of Penn., 730 F.2d 913, 917 (3d Cir. 1984). The Second Circuit has not addressed this question, however as Judge Komitee observed in his ruling, district courts have decided this issue both ways. Prichard Order, at 5.

The Court’s Ruling

In a short, seven-page order, Judge Eric Komitee sided with LIU, concluding that the EEOC exceeded its statutory authority by issuing an RTS letter before the 180-day period had expired. As the Court observed, “Prichard’s assertion that deference is due the EEOC’s interpretation of the statute effectively urges this court to operate in a parallel universe in which Loper Bright had been decided the other way. No case that Prichard cites (or that the Court has identified) sided with the EEOC on textual grounds without according deference: they either deferred to the agency pre-Loper Bright, or relied primarily on policy considerations.” Id. at p. 7. The Court then “directed” the EEOC to reopen Prichard’s charge and granted Prichard leave to re-file once: (1) the Commission dismissed her claim; or (2) investigated for 123 more days and neither filed a lawsuit or entered into a conciliation agreement. Id.

Takeaway for Employers

The Prichard ruling illustrates the consequential impact of Loper Bright on employment discrimination litigation, specifically with respect to the Commission’s ability to interpret the employment discrimination statutes it is meant to enforce. Although the issue decided in Prichard is comparatively low stakes (given plaintiff’s lawsuit was ultimately dismissed without prejudice and she was granted leave to re-file), this ruling may be one of many where courts challenge other, more consequential EEOC regulations, in the absence of Chevron deference.

From a strategy perspective, employers may now be able to better control the timing of when plaintiffs bring their employment discrimination claims (ensuring they first exhaust the 180-day waiting period). Such a strategy carries with it, its own risks, however, and many employers welcome early RTS letters. In the event an employment discrimination charge is heavily investigated by the Commission, and the employer receives a request for information (“RFI”) from the EEOC, the employer may be forced to provide the complaining employee with wide-ranging “free discovery” that it would ordinarily be able to contest in court. Employers should evaluate such early RTS letters on a case-by-case basis and determine, as a matter of strategy, whether it makes sense to contest the lawsuit-permission letter, or simply litigate the matter in court.

By Gerald L. Maatman, Jr., Ryan T. Garippo, and George J. Schaller

Duane Morris Takeaways:  On August 5, 2025, in Richards, et al. v. Eli Lilly & Co., et al., No. 24-2574, 2025 U.S. App. LEXIS 19667 (7th Cir. Aug. 5, 2025), the Seventh Circuit issued an opinion that vacated and remanded a district court’s decision to conditionally certify a group of potential opt-in plaintiffs in an Age Discrimination in Employment Act (“ADEA”) collective action. The opinion breaks new ground on the contours of 29 U.S.C. Section 216(b), and as a result, also applies to conditional certification of wage & hour collective actions under the Fair Labor Standards Act (“FLSA”).  The opinion elucidates the standards for notice in FLSA collective actions.  While the opinion is undoubtedly a win for employers, only time will tell the scope of the win, as this opinion ultimately may create more questions than it answers.

Background

In 2022, Monica Richards (“Richards” or “Plaintiff”) sued Eli Lilly & Co and Lilly USA, LLC (collectively, “Eli Lilly”), the international pharmaceutical manufacturers and her one-time employer, alleging discrimination under the ADEA. The ADEA incorporates the FLSA’s “enforcement provision, permitting employees to band together in collective actions when suing an employer for age discrimination.”  Id. at *3.  Richards, as a result, alleged that Eli Lilly promoted younger employees in violation of the ADEA.

Shortly after she filed her lawsuit, Richards “moved to conditionally certify a collective action, asserting that the unfavorable treatment she experienced was part of a broader pattern of age discrimination against Eli Lilly’s older employees.”  Id. at *9.  “Conditional certification” of such claims has traditionally been thought of in two steps.  At the first step, an employee moves for conditional certification, i.e., to send notice of the lawsuit, to all individuals that he or she contends are similarly situated to him or her.  Drawing on a District Court of New Jersey opinion from 1987, Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), many courts hold that the employee has a light burden at this stage, and thus rely solely on the plaintiff’s allegations, and do not consider competing evidence submitted by the employer.

If the employee’s motion is granted, as they are with exceedingly high rates, those individuals covered by the collective action definition receive notice of the lawsuit and then have the ability to opt-in as party plaintiffs to the case and participate in discovery.  At the close of discovery, if the case has not settled, the employer can then move to decertify the conditionally certified collective action, and prove the employees are not similarly situated, which results in the opt-in plaintiffs’ claims being dismissed without prejudice if successful.

In this case, the fight over the applicability of Lusardi took center stage as it has in many other collective actions.  In recent years, the Fifth and Sixth Circuit Courts of Appeal, have found that Lusardi’s two step approach is inconsistent with the text of the FLSA.  Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430 (5th Cir. 2021); Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023).  In Swales, 985 F.3d at 443, the Fifth Circuit rejected Lusardi’s two-step approach outright, and required its district courts to “rigorously enforce” the FLSA’s similarity requirement at the outset of the litigation in a one-step approach.  Similarly, in Clark, 68 F.4th at 1011, the Sixth Circuit adopted a comparable, but slightly more lenient standard, requiring the employee to show a “strong likelihood” that others are similarly situated to him or her before the district court can send notice.

In contrast, the Second, Ninth, Tenth, and Eleventh Circuits continue to either follow or allow the district court to adopt the two-step framework outlined in Lusardi.  Harrington v. Cracker Barrel Old Country Store, Inc., 142 F.4th 678 (9th Cir. 2025); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001); Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).  This brewing circuit split gave rise to the dispute in Richards.

Against this backdrop, the district court in Richards ultimately followed Lusardi, and decided to send notice to the employees whom Richards contended were similarly situated to her.  But Eli Lilly filed a motion for interlocutory appeal, which was subsequently granted, and the Seventh Circuit set out to opine on the circuit split for itself.

The Seventh Circuit’s Opinion

The Seventh Circuit, in an opinion written by Judge Thomas Kirsch, rejected the Lusardi framework but declined to go as far as Clark or Swales.  The Seventh Circuit observed that the notice process should be facilitated by three guiding principles: (1) the timing and accuracy of notice; (2) judicial neutrality; and (3) the prevention of abuses of joinder.  Richards, 2025 U.S. App. LEXIS 19667 at *14.  It reasoned that the Lusardi standard threatened the latter two principles by “incentivizing defendants to settle early rather than attempt to ‘decertify’ at step two . . . transforming what should be a neutral case management tool into a vehicle for strongarming settlements and soliciting claims.”  Id. at * 17.  Thus, the Seventh Circuit rejected Lusardi, but what to do in the alternative was a more difficult question.

The Seventh Circuit decided that rather than endorse the rigid standards of Clark or Swales, its approach would be guided by “flexibility” and an analysis that is not an “all-or-nothing determination.”  Id. at *19.  Indeed, a plaintiff must now “make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated.” Id. at *21.  Or, in other words, a plaintiff must “produce some evidence suggesting that they and the members of the proposed collective are victims of a common unlawful employment practice or policy.”  Id, at *21-22.  To counter a plaintiff’s evidence, an employer “must be permitted to submit rebuttal evidence and, in assessing whether a material dispute exists, courts must consider the extent to which plaintiffs engage with opposing evidence.”  Id., at *22.It is not clear, however, the burden a plaintiff must satisfy to refute the defendant’s evidence to move forward. 

In considering that threshold determination, the district court has the discretion to send notice or not.It also has the discretion to resolve some of the disputed issues, and narrow the scope of notice, or not. It also may authorize limited and expedited discovery to make the determination, or not.  Id., at *24.It also has the discretion to allow a plaintiff to come forward with more evidence, or not. In essence, “[t]he watchword here is flexibility.”  Id.  And, with those principles in mind, the Seventh Circuit vacated and remanded for further proceedings consistent with the opinion.

Implications For Employers

The Seventh Circuit’s opinion is undoubtedly a win for employers, but the opinion introduces ambiguity into the equation with its focus on “flexibility.”  See id.  Plaintiffs in Illinois, Wisconsin, and Indiana can no longer rely on mere allegations to send notice and must wrestle with an employer’s evidence contradicting claims of a common unlawful policy or practice.  This result is most certainly a win.

It is what comes next that is the problem.  What is the level of scrutiny a district court must apply when deciding whether a plaintiff engaged with an employer’s evidence?  Should a district court apply a one-step approach or two-step approach?  Should it allow limited and expedited discovery?  What is the standard to obtain such discovery?  When should a court allow a plaintiff to come forward with more evidence?  When should it not?  All these questions go unanswered.

These unanswered questions continue to contribute to the procedural morass that employers must navigate in wage-and-hour collective actions under the FLSA.  In addition to these questions, employers are also now navigating the 4-way circuit split on whether Lusardi applies at all and a separate circuit split, also discussed on our blog, regarding the applicability of Bristol Myers Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255 (2017) to collective actions.  With both issues ripe for consideration by the U.S. Supreme Court, corporate counsel facing a collective action should consider hiring experienced outside counsel to help navigate these complicated procedural issues and monitor this blog for further developments.

By Jerry Maatman, Shannon Noelle, and Alek Smolij

Duane Morris Takeaway: On July 2, 2025, in Bush v. Honda Development & Manufacturing of America, LLC, Case No. 1:25-CV-893, 2025 WL 1830702 (N.D. Ala. July 2, 2025), Judge R. David Proctor of the U.S. District Court for the Northern District of Alabama dismissed a class action complaint with leave to replead on the basis that the complaint utilized impermissible “shotgun pleading” in connection with a Title VII and Section 1981 class action brought by current employees, associates, and contractors alleging that the employer (an automobile manufacturing company) engaged in a pattern and practice of racial discrimination in employment opportunities.  The Court granted leave to file an amended complaint containing the required specificity demonstrating “common answer[s]” to the question of why class members were allegedly “disfavored” by the employer such that class action treatment is justified.  This decision underscores that plaintiffs must plead factual content showing ascertainability, commonality, typicality, adequacy of representation, predominance, and superiority at the pleading stage to move forward with claims asserted through the class action vehicle. 

Background

On October 29, 2024, Plaintiff Johnny Bush, Jr. — an African American employee in a supervisory fleet maintenance role at Defendant Honda Development & Manufacturing of America, LLC (“HDMA”) — brought an action on behalf of himself and a putative class of African American employees, associates, and contractors alleging violations of Title VII of the Civil Rights Act of 1964 and Section 1981 of the U.S. Code claiming class members did not have the opportunity, due to their race, to apply for certain jobs or promotions, were discouraged from applying, or applied and did not receive such positions while working for HDMA.  Bush v. HDMA, 2025 WL 1830702, at *1 (N.D. Ala. July 2, 2025) (citing ECF No. 1).  HDMA brought a Motion to Dismiss and For A More Definition Statement arguing that the class action complaint failed to satisfy Federal Rule of Civil Procedure 23(a) requirements (i.e., ascertainability, commonality, typicality, adequacy, predominance, and superiority) and maintaining that the complaint was an impermissible shotgun pleading.  Id. (citing ECF No. 16, at 17-20).  The Court agreed on all fronts.

The Court’s Decision

The Court found that the complaint failed to meet Rule 23(a) requirements rejecting Plaintiff’s argument that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), requires an “evidentiary record” to conduct such an analysis and finding, instead, that class allegations must be reviewed for “some specificity . . . even as early as the pleadings stage.”  Bush, 2025 WL 1830702, at *3. 

The Court found ascertainability to be lacking as HDMA’s business records would not be able to identify:  (1) class members that did not apply for positions because the position was not properly posted; (2) class members that were unaware of vacancies; or (3) class members that did not hear about positions through word of mouth.  Id. at *1.  On the issue of commonality, the Court determined that the proposed class was not likely to generate “common answers” to the question of how or why class members were allegedly disfavored due to their race because the complaint alleged “a full range of different claims,” such as “being discouraged from applying for a job, applying for a job and not getting it, or not being told about an opportunity,” which are all separate theories presenting different factual scenarios.  Id. at *2.  The complaint also failed to establish that Plaintiff Bush was an adequate class representative as he holds a supervisory position at HDMA but seeks to represent class members in non-supervisory roles as well as contractors who cannot bring Title VII claims.  Finally, on the requirement of predominance, the Court found that the class complaint sought damages that could only be assessed on an individual basis, i.e. “back pay; front pay; lost job [and] preferential rights to jobs.”  Id. at *4 (citing ECF No. 1).  The Court rejected Plaintiff’s argument that the injunctive relief sought established predominance given that the monetary damage sought were not “incidental” to the injunctive relief but, instead, at the forefront of the redress requested.  Id. 

The Court also considered the “form of the complaint” to be a deficient “shotgun pleading” as it was replete with vague and conclusory allegations.  The Court gave the specific examples of allegations that:  (1) “word-of-mouth information disproportionately excluded or disadvantaged African American employees from knowing about and competing for positions and training,” (2) non-African American employees were “promoted at a faster pace to a higher-level position,” (3) HDMA’s “discriminatory practices . . . deterred the Plaintiff and putative class members from further pursuing additional vacancies and job opportunities,” (4) “departmental and plant-based selection criteria and/or restrictions [] favored employees in departments and/or facilities or locations that were disproportionately Caucasian,” (5) HDMA’s “recruitment and selection process perpetuated past and existing racial disparities in the jobs at issue,” and (6) “Plaintiff [] has personal knowledge of the discriminatory obstacles and disparate impact experienced by other members of the putative class.”  Id. at *4.  The Court concluded, quoting Dukes, that these allegations failed to demonstrate “glue holding the alleged reasons for all th[e challenged employment] decisions together” and therefore fail to show how class treatment would generate a common answer as to why members of the class were allegedly disfavored. 

The Court gave Plaintiff leave to replead the class allegations to cure the identified deficiencies but instructed that any amended complaint should only include allegations for which Plaintiff has a “good faith basis . . . supported by Supreme Court and Eleventh Circuit case law.”

Implications For Defendants

This decision serves as an important reminder that motion to dismiss scrutiny of class claims is more than just a cursory review particularly where the class definition spans employees at different levels (supervisory, non-supervisory, and contractor) and challenges a wide array of alleged employment decisions not facially suitable for common answers that would make class treatment of such claims efficient or logical. 

Moreover, shotgun pleading that features vague and conclusory allegations devoid of factual content will not survive motion to dismiss or for a more definite statement review and provides fertile ground for discerning defendants to mount challenges to avoid the cost and expense of class adjudication at the outset. 

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

Duane Morris Takeaways: Legal compliance to prevent discrimination is a corporate imperative. Companies and business executives operate in the court of public opinion and workplace inequality continues to grab headlines and remains forefront in the public eye. In this environment, employers can expect discrimination class actions to reach even greater heights in 2024. To that end, the class action team at Duane Morris is pleased to present the second edition of the Discrimination Class Action Review – 2025. This publication analyzes the key discrimination-related rulings and developments in 2024 and the significant legal decisions and trends impacting discrimination class action litigation for 2025. We hope that companies and employers will benefit from this resource in their compliance with these evolving laws and standards.

Class action litigation in the discrimination space remains an area of key focus of skilled class action litigators in the plaintiffs’ bar. Class actions challenging employment policies and practices has a robust history since passage of the Civil Rights Act of 1964. For decades, federal courts routinely granted class certification in nationwide employment discrimination class actions, which often spiked settlements that entailed huge pay-outs and across-the-board changes to HR systems. In turn, significant changes in the workplaces of Corporate America resulted from class action precedents, massive settlements, and injunctive relief orders. This changed in large part over a decade ago when the U.S. Supreme Court decided Wal-Mart Inc. v. Dukes, et al., 564 U.S. 338 (2011). That decision reversed a class certification order in a pay and promotions lawsuit involving 1.5 million class members who asserted claims of sex discrimination in pay and promotions. In handing down this ruling, the Supreme Court tightened the legal requirements for securing class certifications. It simultaneously forced the plaintiffs’ bar to adjust their strategies on how to prosecute class actions, while also fueling new defense strategies for opposing class certification motions. Suddenly gone were the days when nationwide class actions challenging hiring, compensation, and promotion policies of large corporations inevitably ended with across the board certification orders and big settlement checks.

But the pendulum appears to be swinging back, as courts are becoming increasingly inclined to find for plaintiffs in class certification rulings, and thereby raising the potential for large monetary remedies. This is especially true in the discrimination context, as society continues to grapple with widespread inequality in the wake of large scale social justice campaigns like Black Lives Matter and the #MeToo movement. Businesses are being confronted with increasingly employee-friendly legislative changes and a more aggressive plaintiffs’ bar.

Click here to bookmark or download a copy of the Discrimination Class Action Review – 2025 e-book. Look forward to an episode on the Review coming soon on the Class Action Weekly Wire!

By Gerald L. Maatman, Jr.

Duane Morris Synopsis:  In Genesis B., et al. v U.S. Environmental Protection Agency, et al., Case No. 2:23-CV-10345 (C.D. Cal. Feb. 11, 2025), Judge Michael Fitzgerald of the U.S. District Court for the Central District of California dismissed, without leave to amend, a putative class action for lack of standing due to a lack of traceability between plaintiffs’ alleged injury and challenged policies promulgated by defendants, the United States Environmental Protection Agency (“EPA”) and the Office of Management and Budget (“OMB”). The ruling is an important reminder on the importance of standing in class action litigation.

Case Background

Plaintiffs, a group of children living in California, filed a putative class action seeking declaratory relief premised on alleged violations of the Equal Protection Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the Take Care Clause of Article II of the U.S. Constitution.  (Order Granting Motion to Dismiss Complaint (ECF No. 50.) at 1-2.)  Plaintiffs allege they were “harmed by climate change due to increased pollution and emissions, rising temperatures, extreme weather patterns, and wildfire exposure.”  Id. at 2.

Plaintiffs challenge Circular Order No. A-4, a “guidance document” issued by the OMB that “sets forth the Executive Branch policy on benefit-cost analysis” (“BCA”).  Id. at 2.  In accordance with Circular Order No. A-4, the EPA issued, “Guidelines for Preparing Economic Analyses” (the “EPA Guidelines”), that set forth the EPA’s “policy on performing BCA and other economic analyses of contemplated regulations in accordance with Circular Order No. A-4.”  Id.  Plaintiffs allege that, based on the EPA Guidelines, the EPA issued Regulatory Impact Analyses that “anticipate[ ] and evaluate[ ] the likely consequences of its regulatory actions allowing climate pollutions.”  Id.  These various policies, according to Plaintiffs, “require” the EPA to apply “discount rates” that “put their thumb on the scale against urgent and ambitious regulatory programs to reduce climate pollution, and in favor of taking less ambitious actions in the present.”  Id. at 3.

Defendants, the EPA, Michael Regan, “in his official capacity as Administrator of the EPA,” the OMB, and Shalanda Young, “in her official capacity as Director of OMB” (together, “Defendants”), moved to dismiss the operative complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction and failure to state a claim, respectively.  Id. at 6.  The Court granted Defendants’ motion to dismiss, without leave to amend, dismissing the complaint for lack of subject-matter jurisdiction finding that Plaintiffs lacked standing to pursue their complaint as the purported injuries were not “fairly traceable” to Defendants’ policies.  Id. at 7.

Court’s Decision

The Court analyzed two theories of harm advanced by Plaintiffs, including: (1) “environmental harms” that Defendants’ policies allegedly “result in the under-regulations of greenhouse gas emissions, which burdens Plaintiffs by disrupting, inter alia, their education, recreation, and religious expression;” and (2) “harms from discrimination” because Defendants’ policies allegedly “[deny them] equal treatment under law.”  Id.

First, the Court held that Plaintiffs lacked standing because they failed to demonstrate the alleged “environmental harms” were “fairly traceable” to any of the alleged “discriminatory” policies.  Id. at 8. Critically, the Court reasoned that “Plaintiffs fail to allege that Circular No. A-4 or the EPA Guidelines set out binding discount rates or practices.”  Id. (emphasis added).  The Court noted that the OMB’s policies should be interpreted as “guidance documents” and that BCAs are “context-specific in nature, and [do] not mandate a particular [discount] rate.”  Id.  Thus, the EPA “may or may not” use discounting, and even it does apply discounting, it “is only a single guiding factor when used” in any promulgated policies.  Id.  Since Plaintiffs “theory of harm therefore bundles uncertainty on uncertainty,” the Court concluded that Plaintiffs failed to “demonstrate traceability as to their environmental harms.”  Id.

The Court rejected Plaintiffs attempt to distinguish decisions from the Eighth and Fifth Circuits, finding that those courts’ reliance on a “draft update to Circular No. A-4” was immaterial to the decisions.  Id. at 9.  The Court also rejected Plaintiffs’ argument that it was premature to consider whether Defendants’ policies were “binding” at the responsive pleading stage of the litigation.  Id. at 9-10.

Second, the Court held that Plaintiffs failed to establish they “suffered an injury-in-fact” that is traceable to the alleged discrimination caused by Defendants’ policies.  Id. at 12.  The Court noted that, “to find that there is traceability as to the alleged facial discrimination, the Court must find that unequal treatment under the law occurred.”  Id.  Here, the complaint failed to identify any “individual” harms suffered by Plaintiffs, and instead “anticipate[s] societal harms and benefits” that “will be experienced relatively equally by all people — both in the United States and around the world — who are alive at the time of their impacts.”  Id.  As such, the alleged harm “does not derive from any of the children in the [Defendants’ policies], but on the allegation that the [Defendants’ policies] result in a suboptimal rate of greenhouse gas emissions in the future, which will disproportionately impact present-day children.”  Id.  As an example, the Court noted the complaint fails to answer how the policies “work a discriminatory harm against an individual aged 17 years and 364 days and not an individual aged 18 years.”  Id.  Thus, the Court determined that Plaintiffs claims failed because they are “not about a stigmatic injury at all, but rather a displeasure with the EPA’s economic analyses in assessing the impacts of future harms.”  Id. at 14.

Finally, the Court granted Defendants’ motion without leave to amend because, “no matter how many opportunities for amendment Plaintiffs receive, they cannot overcome the structural lack of injury-in-fact and traceability as to their claims.”  Id. at 16.  Since Defendants’ policies “do not prescribe a discount rate that the EPA must use and because Plaintiffs challenge no specific policies,” the Court found it “difficult to imagine how Plaintiffs could ever sufficiently allege standing on” the facts set forth in the complaint.  Id.

Implications For Companies

Standing can be an effective tool to challenge putative class action complaints at the responsive pleading stage of the litigation.  Although a court may be hesitant to dismiss a complaint without leave to amend, the G.B. decision underscores how effective challenging standing can be to secure a dismissal in the employer’s favor at the outset of the litigation.