General – Class Action Defense

October 27, 2026October 27, 2026 by Class Action Defense

Not On The Papers: Connecticut Federal Court Denies Cross-Motions For Summary Judgment In EEOC Challenge To Hospital’s Age-Based Physician Screening Policy

By Gerald L. Maatman, Jr., Jennifer A. Riley, Karla Mardueno, and Denis I. Yavorskiy

Duane Morris Takeaways: On October 23, 2026, in EEOC v. Yale New Haven Hosp., Inc., No. 3:20-CV-00187 (D. Conn. Oct. 23, 2026), Judge Kari A. Dooley of the U.S. District Court for the District of Connecticut denied cross-motions for summary judgment in a closely watched suit brought by the Equal Employment Opportunity Commission (“EEOC”) under the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”). The suit challenges a hospital policy requiring physicians aged 70 and older to undergo cognitive and eye testing. The Court held that genuine disputes of material fact precluded judgment for either side on the hospital’s bona fide occupational qualification (“BFOQ”) defense and its “business necessity” defense. Judge Dooley put it bluntly: “This case cannot be tried on the papers.” Id. at *13.

The decision highlights how fact-intensive defenses play out when an employer relies on age as a proxy for safety-related job qualifications. Employers in health care and other safety-sensitive industries should expect that age-triggered screening policies will be tested at trial and might not be resolved early in the litigation.

Case Background

Yale New Haven Hospital, Inc. (“YNHH”) is a private, non-profit hospital in New Haven, Connecticut. YNHH adopted a Late Career Practitioner Policy (“LCPP”), which requires practitioners aged 70 and over who want to obtain or renew clinical privileges to undergo “ophthalmic and neuropsychological testing” at appointment and every two years thereafter. Id. at *2-3. If testing reveals signs of impairment, more tests may be recommended, and Yale’s Medical Staff then decides on privileges after further review.

The EEOC sued on behalf of YNHH physicians over age 70, alleging that the LCPP is age discrimination under the ADEA and an unlawful employment practice under the ADA. After almost three years of discovery, both parties moved for summary judgment.

The Court’s Analysis

Judge Dooley explained that the case “will turn on Yale’s BFOQ and ‘business necessity’ affirmative defenses,” and that “these inquiries are fact intensive and cannot be resolved on the record evidence.” Id. at *8. Yale argued that patient safety is the “foundational purpose” of the LCPP and that age is the single greatest indicator of cognitive decline. The EEOC countered that the policy is “far too broad in its design” and unnecessary given Yale’s existing competency metrics and “exemplary safety record.” Id. at *8.

The ADA Business Necessity Defense

First, Judge Dooley found a genuine issue of material fact over whether the LCPP “genuinely serves” patient safety. Id. at *9. The parties presented dueling experts. While the EEOC’s expert opined that neuropsychological tests “often do not accurately predict real-world behavior,” Yale’s experts countered that the tests are “well-accepted within the field of psychometrics.” Id. at *9-10. Because weighing that conflict is a job for the factfinder, the question of whether the LCPP is “vital to Yale’s business” had to go to trial. Id. at *10.

Second, the parties disputed whether the LCPP is overly broad. The EEOC pointed out that the policy covers practitioners who only teach and do not see patients, while Yale responded that those practitioners train others who will care for patients. Judge Dooley held that the reasonableness of Yale’s policy “will require assessment of the factual record upon a trial of this matter” and may turn on a “quantitative assessment” of how many non-treating physicians are covered. Id. at *11.

The ADEA BFOQ Defense

Yale argued that age is “a legitimate proxy for the safety-related job qualifications” because “it is impossible or highly impractical to deal with the older employees on an individualized basis.” Id. at *6, 11. The experts again disagreed. Yale’s expert relied on a study estimating that cognitive impairment “may be as high as 28% in physicians aged 70 years and older,” while the EEOC’s expert opined that the rate at age 70, the LCPP’s trigger, is “probably below 5%.” Id. at *12. The Court held that the proxy question presented “a genuine issue of material fact.” Id. at *12.

Judge Dooley also found a “fundamental factual dispute” over whether individualized assessment is impractical. Id. at *13. Yale argued that the LCPP is “proactive and forward looking,” while its existing metrics identify problems only “after the fact, and perhaps after a patient has been harmed.” Id. at *13. Judge Dooley framed the question as whether Yale’s current methods are adequate or “whether the LCPP is a ‘solution in search of a problem.’” Id. at *13. Judge Dooley acknowledged “Yale’s significant interest in patient safety” but explained that the disputes over the LCPP’s “purpose; its function; its implementation; its efficacy; its impact” are “the very disputes that are determinative of the claims.” Id. at *13-14. She also criticized the parties’ “largely unusable” Local Rule 56(a) statements. Id. at *11 n.12. She denied both motions and announced a conference to schedule trial.

Implications For Employers

Yale New Haven Hospital shows that age-based safety policies often will be won or lost on the factual record, not on legal argument. The case turned on whether the LCPP actually works, whether it is properly tailored, and whether age 70 is the right line. Those are likely going to involve questions for experts and factfinders.

The Court observed that the case matters “to the health care industry generally as well as other industries where age is arguably a ‘legitimate proxy’ for safety related job qualifications.” Id. at *14.

Employers with age-triggered screening programs should build that empirical record before a policy is challenged. For example, they should make sure covered positions match safety-sensitive duties, develop data supporting the specific age cutoff, apply the program uniformly, and document why individualized competency metrics cannot address the risk proactively.

October 25, 2026October 25, 2026 by Gerald L. Maatman, Jr.

California Court Of Appeal Finds That An Employment Arbitration Agreement Entered Into “Freely And Voluntarily” Actually Was Forced, Illegal, And Invalid Under California Law

By Eden E. Anderson, Rebecca Bjork, and Gerald L. Maatman, Jr.

Duane Morris Takeaways: On October 22, 2026, the California Court of Appeal held in Molina, et al. v. Triumph Residential Services, Inc., Case No. B350252, that requiring an employee to sign an arbitration agreement as a condition of employment is illegal under California Labor Code section 432.6. Thus, when an arbitration agreement is not otherwise enforceable under the FAA, an arbitration agreement that is a condition of employment is unenforceable under California law. The Court of Appeal further found that, even though the arbitration agreement at issue stated on its face that it was voluntary, it actually was not.

The Molina decision is a must read for any employer seeking to compel arbitration under California law, as it teaches important lessons on the evidence an employer should submit with its motion.

Case Background

At the time of her hire with Triumph Residential Services (Triumph), Tiffany Molina signed an arbitration agreement which stated that she was “freely and voluntarily” agreeing to arbitration of claims arising out of her employment. Id. at 4. After her employment ended, Ms. Molina filed a wage and hour class action lawsuit against Triumph. Triumph moved to compel individual arbitration and to dismiss the class claims pursuant to a class action waiver in the arbitration agreement. The parties agreed that their arbitration agreement was not governed by the Federal Arbitration Act (FAA), and thus Triumph sought to enforce the arbitration agreement under California law. With its motion to compel, Triumph submitted a declaration asserting that Ms. Molina “was free to accept the Arbitration Agreement, attempt to negotiate out of it or look for other employment.” Id. at 4.

In opposing the motion, Ms. Molina argued that California Labor Code section 432.6 made her arbitration agreement unlawful. Labor Code section 432.6 makes it illegal (indeed, criminal) for an employer to impose an arbitration agreement on an employee as a “condition of employment.” It also prohibits an employer from requiring an employee to take any affirmative action to opt out of an arbitration agreement. Usually, when the FAA governs an arbitration agreement, Labor Code section 432.6 is preempted. However, as noted, here the parties agreed the FAA did not apply. Ms. Molina asserted, without any evidentiary support of her own, that her arbitration agreement had been forced upon her as a condition of employment.

The trial court denied Triumph’s motion, concluding that Labor Code section 432.6 invalidated the arbitration agreement. Even though the arbitration agreement on its face stated it was “freely and voluntarily” signed, the trial court deemed that insufficient to show the agreement was voluntary and not a condition of employment. It determined that the employer bears the burden of proof to establish a valid an enforceable agreement to arbitrate, and that Triumph failed to offer evidence that its employees were not required to sign the arbitration agreement.

The Decision

In a decision certified for publication, the Court of Appeal affirmed. It held that the only exception to Labor Code section 432.6’s application is when an arbitration agreement is otherwise enforceable under the FAA. Because Ms. Molina’s arbitration agreement was not enforceable under the FAA, then the agreement had to be voluntary to be enforceable under California law.

Without addressing which party bears the burden of proof, the Court of Appeal further held that the evidence established Ms. Molina’s arbitration agreement was not voluntary even though it said on its face that it was. And on this point, Triumph’s declaration proved fatal because it stated that Ms. Molina’s choices were to either “accept the Arbitration Agreement . . . or look for other employment.” Id. at 4. That meant the agreement was unlawfully a condition of employment. Id. at 15. Additionally, Triumph’s declaration stated that Ms. Molina could “negotiate out of” the agreement, which too violated Labor Code section 432.6 because it signified that Ms. Molina had to take affirmative action to avoid signing the arbitration agreement presented to her. Id. Because Ms. Molina’s arbitration agreement was not voluntary and not enforceable under the FAA, it was “illegal (indeed, criminal)” and unenforceable under California law. Id. at 8.

Implications For Employers

The Molina decision teaches an important lesson to any employer seeking to enforce an arbitration agreement that is not governed by the FAA. Even if an arbitration agreement states that it is voluntary, the employer should proffer additional evidence to confirm that employees are not required to sign, e.g., a declaration indicating that some employees do not sign. In this instance, the employer offered a declaration stating the exact opposite, and sandbagged its own motion as a result.

October 1, 2026October 1, 2026 by Class Action Defense

Cutting-Edge Class Action Issues Debated At Perfect Law Conference at NYU School Of Law

By Gerald L. Maatman, Jr.

Duane Morris Takeaways: I had the privilege and honor of presenting on September 30 at the Perfect Law Class Action Conference at New York University School of Law. Practitioners and law professors from Europe, Canada, and the United States convened at NYU to debate cutting-edge class action issues involving privacy, securities fraud, products liability, and antitrust laws. The “debate” between the plaintiffs’ bar, defense lawyers, and academics made for an engaging and enlightening day. The full agenda is here – https://perfectlaw.co.uk/

Overview

Dean Troy McKenzie of NYU School of Law gave the keynote address that identified the array of unanswered and evolving legal issues in the class action space. Along with Professor Samuel Issacharoff, Den McKenzie set the stage for discussion about the quickly and ever-evolving law in this area. At the same time, artificial intelligence is fueling change and accelerating developments on all continents. “AI” became a consensus concept during all the conference presentations in terms of its potential to transform class action litigation issues.

Comparative Jurisdictions

In a follow up panel that included jurists from Europe and the United States, Judge Robert Dow – presently chief counsel for Chief Justice John Roberts of the U.S. Supreme Court and formerly a Judge of the U.S. District Court for the Northern District of Illinois – asserted that tools to manage complex litigation are functioning well, despite their genesis some 60 years ago. Both Supreme Court decisional law and Congressional enactments – such as the Class Action Fairness Act of 2005 – created heightened pleading requirements for litigating class actions and a preference for most of such cases being docketed in federal courts. As a result, class action litigation is growing, and federal courts are increasingly encountering cutting-edge class action issues as their caseloads expand.

Justice Benjamin Glustein of the Ontario Superior Court of Ontario observed that class actions likewise are increasing in Canada, and unlike U.S. practice, claims are more apt to be certified, especially dealing with civil rights claims. Canadian class actions, as a result, are thriving.

In terms of Europe, law professor Miguel Ferror of the University of Lisbon and plaintiffs’ lawyers Marc Grossman of Milberg and Luke Streatfield of Hausfeld talked about the rise of magnet jurisdictions in Europe, especially for antitrust claims in the United Kingdom. They opined that selection of jurisdiction is a high-stakes decision point for plaintiffs’ lawyers in Europe. In this respect, certain jurisdictions are not optimal forums for collective redress lawsuits. For example, while Romania follows a regime of 20% presumed damages, they observed, in essence, that “no one litigates in Romania” because they do not trust the courts and legal outcomes there. Litigation funders, they opined, also take a close look at selections of venue and pertinent ethical rules in those jurisdictions in terms of mass or group-wide claims.

Privacy Class Actions

On a panel with three plaintiffs’ privacy lawyers, I spoke on the rise and pervasiveness of privacy violations as a new frontier of class actions. In general terms, I opined that Article III standing requirements are critically important in this space. The case law is not necessarily consistent, the legal state of play is in flux, and many decisions turn on specific factual situations. I offered three distinct takeaways using a recent case from New York as an exemplar.

First – There was an important decision from the Southern District of New York issued in August of last year that goes into great depth into the issues raised by these questions.

In Re Zeta Global Privacy Litig., No. 25 Civ. 5780, 2026 WL 2254612 (S.D.N.Y. Aug. 8, 2025) (granting motion to dismiss a putative class action under ECPA and state consumer protection laws for lack of standing under Rule 12(b)(1) for lack of injury in fact).

Zeta is a company that uses artificial intelligence to develop personalized marketing techniques aimed at helping brands acquire and retain customers. Id. at *1. The named plaintiffs alleged that when they visited storefronts of business that use Zeta for this purpose, those businesses tracked them across the Internet; and that Zeta, and its clients, profited from collecting their PII. Id. Among other things, the plaintiffs alleged “Zeta uses this AI Engine to generate ‘insights’ which its clients can use to identify consumers who “can be targeted for specific lines of business.” Id. at 2. They alleged this creates significant monetary value as measured by how much clients pay to access the dataset. Id. They sought damages under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510, et seq., and various state consumer protection laws. Id. at 1.

In response to the motion to dismiss, the plaintiffs argued that they pled two privacy-related harms traditionally recognized as adequate to confer standing: (1) invasion of privacy – at common law referred to as public disclosure of “private facts,” and (2) “intrusion upon seclusion. Id. at 4. They also argued: (3) because defendants profited from monetizing their PII data and harmed “plaintiffs’ electronic device ‘resources,’ and caused a loss of control of their data.” Id. at *4.

On the first claim – disclosure of private information – the court explained that in the Second Circuit, the Article III standing analysis requires either “’actual injuries’” resulting from the disclosure or ‘a substantial risk of harm’”

See FritzCo LLC v. Verizon Commc’ns Inc., No. 21 Civ. 10432, 2026 WL 734776, at *4 (S.D.N.Y. Mar. 16, 2026). Id. at 5.

A “substantial risk of harm’ is determined by “whether the type of data that has been exposed is sensitive such that there is a high risk of identity theft or fraud.”

McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 303 (2d Cir. 2021). Id. at 5.

This turns on whether it constituted “sensitive information” – id. at 6 – which the court noted does not include data like addresses, phone numbers, email addresses, and IP addresses.

Cooper v. Bonobos, Inc., No. 21 Civ. 854, 2022 WL 170622, at *6 (S.D.N.Y. 2022).

It also does not include “partial credit card numbers” and “password histories” (id.) because they are unlikely to cause an injury that was “certainly impending” or suggesting a “substantial risk the harm will occur” the standards set forth in the Cooper case. This was because of “the fragmented nature of the data and the age of the information (e.g. old passwords—that were captured.” (Id.)

On the other hand, a plaintiff arguably does have Article III standing for state law claims if credit card information is taken which, along with other stolen personal information, enables third parties to complete unauthorized transactions.

FritzCo LLC v. Verizon Commc’ns Inc., No. 21 Civ. 10432, 2026 WL 734776, at *4 (S.D.N.Y. Mar. 16, 2026).

And if the content of emails is sold, that is sufficient to establish standing for federal privacy claims if it contains information such as sensitive PII.

Cooper v. Slice Techs., Inc., No. 17 Civ. 7102, 2018 WL 2727888, at *2-3 (S.D.N.Y. June 6, 2018).

See also In re Christie’s Data Breach Litig., 767 F. Supp. 3d 12, 16-18 (S.D.N.Y. 2025) (finding disclosure of plaintiffs’ full names, passport numbers, and driver’s license numbers sensitive).

The court concluded that the named plaintiffs in the Zeta litigation did not provide enough specificity in their pleading to establish Article III standing. They did not state the nature of the PII allegedly collected and analyzed by the AI learning model, which the court explained was fatal to their complaint:

“It does not allege that credit card information, medical information, Social Security numbers, or any other data otherwise recognized by courts as sensitive—was disclosed. It hypothesizes that Zeta might possess “2,500” pieces of information about these plaintiffs, and that “Zeta has likely stored more information than what is publicly known.” FAC ¶¶ 67, 85. But such conjecture cannot support standing.”

In Re Zeta at *6.

Second – Other courts have held that the disclosure or capture of mere browsing activity, without more, is also not sufficient for a concrete injury.

Bradshaw v. Lowe’s Cos., No. 25 Civ. 742, 2025 WL 3171740, at *5 (S.D. Cal. Nov. 12, 2025) (collecting cases and observing combination of browser information with other information captured by tracking pixels did not demonstrate a concrete injury to show Article III standing);

Smidga v. Spirit Airlines, Inc., No. 22-CV-1578, 2024 WL 1485853, at *4 (W.D. Pa. Apr. 5, 2024) (“[C]ourts have held that even the collection of basic contact information by [ ] software or where the plaintiffs merely visited the website are not [ ] concrete harms.”).

Magliocca v. United Healthcare Servs., No. 25-CV-3388, 2026 WL 878694, at *4 (E.D. Cal. Mar. 31, 2026) (“button clicks, page visits, session lengths, URLs, and IP addresses” were the kind of “non-sensitive browsing activity on a single website” that courts have repeatedly found insufficient to establish a concrete injury under the ECPA and state law).

Third – the disclosure of private information claim in the Zeta case was also dismissed because the court concluded plaintiffs inadequately pled any harm whatsoever from the profit claim and the potential to serve targeted ads to the plaintiffs and the putative class. The complaint did not allege any named plaintiff received any targeted advertising or were otherwise affected, let alone harmed, by it.

In Re Zeta, at *7.

Conclusion

Class actions are wide and varied and are increasing in number. The stakes and risks for Corporate America have never been higher. The panel presentations at the Perfect Law Conference underscored these issues, and predicted more changes fueled by AI.

September 11, 2026September 11, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 164: Washington Appellate Court Affirms Rejection Of Motion To Compel Arbitration In Wage & Hour Class Action

Duane Morris Takeaway: This week’s episode features Duane Morris partner Jennifer Riley and senior Associate Kat Alphonso with their analysis of a ruling from the Washington Court of Appeals affirming a trial court’s denial of a motion to compel arbitration in a wage & hour class action.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jennifer Riley: Hello, everyone, and thank you again for being here for the next episode of the Class Action Weekly Wire. I’m Jennifer Riley and joining me today is Kat Alphonso. Today, we’re discussing an interesting wage and hour ruling out of Washington that employers should really pay close attention to. The case is Daryl Clemons v. Securitas Security Services USA, Inc. The Washington Court of Appeals in that case affirmed a trial court’s denial of an employer’s motion to compel arbitration in a proposed wage and hour class action. So, it’s an important ruling. Kat, thank you for being on the podcast today.

Kat Alphonso: Thank you for having me, Jen. You’re right, this is a very important decision, because it highlights that even in jurisdictions that generally favor arbitration, courts are still going to scrutinize how arbitration agreements are presented to employees. The takeaway here isn’t necessarily about the language of the agreement itself, but about the process that the employer uses when obtaining the employee’s signature.

Jennifer: Great. Let’s start, if we can, with the background. Can you tell our listeners what happened in this case?

Kat: Sure. The plaintiff, Daryl Clemons, began working for Securitas Security Services USA in 2008. During his employment, he signed an updated dispute resolution agreement in 2011 that required employment-related disputes to be resolved through final and binding arbitration rather than in court. Years later, Securitas terminated his employment in 2023. He subsequently filed a proposed wage and hour class action, alleging that the company failed to provide legally required meal and rest breaks, and failed to pay employees all hours worked, including overtime. When Securitas moved to compel the arbitration, and based on the 2011 agreement, the trial court denied the motion, and the company appealed. The Washington Court of Appeals ultimately affirmed the trial court’s decision.

Jennifer: One thing that stood out to me here is that the appellate court acknowledged that Washington strongly favors arbitration. So, this wasn’t a court expressing hostility toward arbitration agreements generally, was it?

Kat: Not at all. In fact, the court expressly reiterated Washington’s long-standing policy favoring arbitration and noted that courts make presumptions in favor of enforcing arbitration agreements, but the court also emphasized that it remains the judiciary responsibility to determine whether a particular arbitration agreement is valid and enforceable. The question here was whether this particular agreement was procedurally unconscionable, and that’s where the employer ran into problems.

Jennifer: Okay, great. Let’s talk about procedural unconscionability. What exactly did the court find here?

Kat: Well, the court found that Mr. Clemons lacked a meaningful opportunity to understand or evaluate the arbitration agreement before signing it. According to his declaration, his supervisor routinely handed employees paperwork and expected them to sign it immediately before beginning work. Mr. Clemons stated that there was no explanation regarding what the documents were, whether signing it was voluntary, or whether employees could take additional time to review. He also said that he didn’t know whether he had a right to refuse to sign. The court found that on those facts, it was significant because the Washington Supreme Court had previously held that undue pressure to sign an arbitration agreement without a reasonable opportunity to consider its terms can render an agreement procedurally unconscionable.

Jennifer: And did Securitas try to rebut the allegations in this case?

Kat: Yeah, the company relied heavily on the declaration from its regional vice president of human resources, who stated that signing arbitration agreements was voluntary, and that employees could opt out if they did not want to participate. According to the declaration, the agreement included opt-out instructions. The problem was, the actual agreement signed by Mr. Clemons did not contain any of those provisions stating that participation was voluntary, nor did it have an opt-out clause. So, the appellate court highlighted this discrepancy and agreed with the trial court’s conclusion that the declaration was not persuasive on that point.

Jennifer: Got it. So, did it come down to a credibility issue for the company?

Kat: Yes, the court observed that Securitas offered evidence describing general policies, but it did not present testimony from anyone who actually participated in the onboarding process or the document signing process involving Mr. Clemons, nor did they provide evidence that his supervisor informed him that he could opt out or take additional time to review the agreement. So, as a result, the employee’s account of what occurred was largely unrebutted.

Jennifer: Got it, understood. So, another interesting aspect of this decision is that the court found circumstantial evidence sufficient. The employee didn’t specifically remember signing the arbitration agreement, yet the court still credited his testimony.

Kat:: That’s right. So, Securitas argued that because Mr. Clemons did not distinctly remember signing the arbitration agreement in 2011, his testimony was speculative, but the court rejected that position. It explained that Mr. Clemons clearly remembered the routine practice of his supervisor when he was presenting paperwork, and that circumstantial evidence is entitled to the same weight as direct evidence. The court concluded that Mr. Clemons’ description of the workplace practice, combined with the lack of evidence showing that he was informed of any right to opt out, was sufficient to establish procedural unconscionability.

Jennifer: Got it. So, despite Washington’s preference for arbitration, the court ultimately focused on the fairness of the process used to obtain assent from this employee.

Kat: That’s exactly right. The court did not hold that arbitration agreements themselves are unenforceable. It held that employees must be given a meaningful choice. Here, the court found that Mr. Clemons was not informed that the agreement was voluntary, he was not informed that he had a right to opt out, and he was not given a reasonable opportunity to consider the agreement’s terms before signing. And under those circumstances, the agreement was procedurally unconscionable and therefore unenforceable.

Jennifer: Got it. So, let’s now shift to the practical implications. What lessons should employers take away from this decision?

Kat: So, employers should ensure that arbitration agreements expressly state that participation is voluntary, and if there is an option to opt out, that the agreement clearly describes the procedures to opt out. If the company intends to rely on those provisions later, they should be in the actual documents that the employee signs. Employers should also document the onboarding process. It’s helpful to have acknowledgements indicating that employees received sufficient time to review, had an opportunity to ask questions, and understood the implications of arbitration. Finally, supervisors and managers should be trained carefully. This case became largely about how the documents were presented in practice.

Jennifer: And from a wage and hour perspective, this ruling potentially has major consequences because the plaintiff’s claims now continue in court as a putative class action. So, if arbitration had been enforced, the litigation landscape would’ve looked very different for this case. Instead, the plaintiff now retains the ability to pursue the class claims in court on behalf of a putative class of Washington hourly non-exempt employees who are alleging unpaid wages, missed meal periods, missed rest breaks, and overtime violations as well. So those are claims that can present some substantial exposure for employers if class certification is granted.

Kat: Exactly. This decision serves as a reminder that arbitration agreements remain a powerful risk management tool, but employers cannot treat implementation as an afterthought. Courts are increasingly examining whether employees truly had a meaningful opportunity to understand what it was they were signing. Even a well-drafted agreement can be vulnerable if the execution process is flawed. So, employers should periodically review not only the language of their agreements, but also the procedures used to distribute, explain, and obtain signatures on those agreements.

Jennifer: Great insights as always, Kat. Thanks so much. So, that wraps up today’s episode. Thank you to our listeners for joining us today for this discussion of the Washington Court of Appeals decision in Clemons v. Securitas Security Services USA. We will continue to monitor developments in wage and hour litigation, class actions, as well as arbitration law, and keep you updated on the latest trends affecting employers nationwide. Thank you so much for listening, and we’ll see you next time.

Kat: Thank you for listening, everyone, and thanks, Jen.

August 20, 2026August 20, 2026 by Gerald L. Maatman, Jr.

Eighth Circuit Affirms Landmark Billion Dollar Class Action Settlement In Real Estate Broker Commission Antitrust Litigation

By Gerald L. Maatman, Jr., Mike Rosenblatt, and Brett Bohan

Duane Morris Takeaways: On August 19, 2026, in Burnett v. National Association of Realtors, Nos. 24-3444, 24-3450, 24-3451, 24-3527, 24-3585, 24-3619, 24-3621 (8th Cir. Aug. 19, 2026), the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s final approval of a nationwide class action settlement resolving antitrust claims alleging that the National Association of Realtors (the “NAR”) and several major real estate brokerage franchisors conspired to inflate buyer-broker commissions. The settlement exceeds $1 billion in total value, eliminates the longstanding rule requiring sellers to offer compensation to buyer brokers through multiple listing services, and survived challenges from seven separate groups of objectors and intervenors.

Case Background

Starting in 1996, NAR’s Cooperative Compensation Rule required home sellers listed on an NAR-affiliated Multiple Listing Service (“MLS”) to offer the buyer’s broker a commission. Id. at 9. In practice, this rule meant “sellers paid a combined commission of roughly 5-6% of the sale price, split roughly evenly between the seller’s broker and the buyer’s broker” even though the buyer’s broker represented the buyer. Id. Because of the supremacy of NAR-affiliated MLSs in the national residential market, the rule applied nationwide. Id.

In April 2019, Rhonda Burnett filed a class action in the Western District of Missouri on behalf of a group of Missouri home sellers against NAR and four brokerage franchisors—HomeServices of America, Anywhere Real Estate, RE/MAX, and Keller Williams. Id. She alleged that the defendants had conspired to fix prices in violation of Section 1 of the Sherman Antitrust Act. Id. After trial in October 2023, a jury awarded $1.785 billion in damages subject to trebling. Id. at 10. While post-trial motions were pending, the parties in this case and in several related nationwide actions reached a global settlement. Id. NAR agreed to pay the settlement fund $418 million, HomeServices agreed to pay $250 million, and additional opt-in brokerages brought the total fund above $1 billion. Id. at 11. NAR also agreed to eliminate the Cooperative Compensation Rule and implement changes restructuring buyer-broker compensation. Id.

The district court entered an 88-page final approval order certifying a nationwide settlement class and approving the settlement under Rule 23. Id. at 13. Seven groups of objectors and intervenors appealed the settlement. Id. at 13 n.3.

The Eighth’s Opinion

The Eighth Circuit upheld the district court’s approval of the settlement and rejected the objectors’ and intervenors’ challenges.

Standing. The Eighth Circuit rejected the argument that plaintiffs lacked Article III standing for injunctive relief, finding an ongoing injury because “home prices remain inflated absent” the settlement’s practice changes. Id. at 17.

Rule 23(e)(2) Fairness Factors. The Eighth Circuit clarified that Rule 23(e)(2), as amended in 2018, provides the authoritative factors for evaluating class-action settlements. Id. at 21. However, the district court did not err by considering additional factors, even if it was not required to do so. Id.

Overbroad Release Challenge. Objectors/Intervenors contended the settlement impermissibly extended to New York claims involving the Real Estate Board of New York’s (“REBNY”) independently operated rules. Id. at 22. The Eighth Circuit held that both the NAR and REBNY claims hinged on the same operative factual predicate—that industry rules were used to keep brokerage fees artificially high at the expense of home buyers and sellers. Id. at 23. Because the released claims shared a “common nucleus of operative fact” with the litigated claims, the breadth of the release was permissible. Id.

Adequacy of Representation. The Eighth Circuit rejected the argument that class counsel had provided inadequate representation. Id. at 26. It held that the district court did not err in finding class counsel was qualified, had pursued the case aggressively through trial, and negotiated at arm’s length with the defendants. Id.

Attorneys’ Fees. The Eighth Circuit upheld a $333 million attorneys’ fees award—one-third of the fund—as consistent with Eighth Circuit precedent under the percentage-of-the-benefit approach. Id. at 30-31.

Distribution Method.The Eighth Circuit held that the parties did not need to establish a detailed distribution plan prior to final settlement approval. Id. at 32. A notice that “outlines the settled and released claims and states the total settlement amounts” is sufficient. Id.

Fairness Hearing Procedure. Objectors/Intervenors also challenged the district court’s requirement that all objectors appear in person at the fairness hearing. Id. The Eighth Circuit found due process was satisfied where counsel for non-appearing objectors was able to argue at the hearing, and the district court addressed the objections on the merits. Id.

Adoption of Proposed Order. The Eighth Circuit rejected the argument that the district court’s adoption of the plaintiffs’ proposed settlement order warranted heightened scrutiny, reaffirming that “even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.” Id. at 33 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985)).

Timeliness of Intervention. The Eighth Circuit affirmed the denial of a group of objectors’ intervention motion because (1) “the litigation had proceeded for five years” before they filed the motion, (2) the intervenors knew about the case, (3) they offered no explanation for the delay, and (4) reopening the settlement would prejudice the parties. Id. at 34-35.

Implications For Companies

The Eighth Circuit’s decision carries broad significance. First, the sheer magnitude of the settlement, more than $1 billion in total, highlights the extraordinary financial exposure that antitrust price-fixing claims can generate. Under the Sherman Act, depending on the claims and damages alleged, successful plaintiffs may be entitled to treble damages, meaning that even a single adverse jury verdict can spiral into catastrophic liability. Businesses that participate in industry-wide arrangements touching price, commissions, or fee structures should ensure that any agreements or coordinated practices involving competitors are reviewed by experienced antitrust counsel before implementation.

Second, it reinforces that federal courts retain wide latitude to approve nationwide settlements releasing claims beyond the originally certified class’s geographic scope, provided the claims share a common factual predicate. Companies facing multi-state litigation should recognize that a settlement in one jurisdiction may resolve related claims elsewhere.

Third, the opinion provides the Eighth Circuit’s first definitive guidance on the 2018 Rule 23(e)(2) amendments, making clear that Rule 23 supplies the mandatory factors while circuit-specific tests may supplement but not supplant them.

Finally, the decision reinforces the high deference appellate courts afford district courts evaluating complex settlements following contested litigation and trial.

August 10, 2026August 10, 2026 by Gerald L. Maatman, Jr.

You’ve Got Email: The Ninth Circuit Affirms Denial Of Motion To Compel Arbitration Where Four Email Messages Containing Arbitration Agreement Sent To Employee Went Unopened

By Gerald L. Maatman, Jr., Eden E. Anderson, and Rebecca S. Bjork

Duane Morris Takeaways: On August 5, 2026, a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a decision denying a motion to compel arbitration brought by an employee on a representative basis under California law against his employer. In Rickes v. Thermo Fisher Scientific, Inc., et al., No. 25-5138 (9th Cir. Aug. 5, 2026), the Ninth Circuit decided that a district court had properly determined that there was insufficient evidence that the plaintiff assented to the arbitration agreement that had been sent to his work email address by his employer four times. The panel decided the evidence showed the plaintiff never opened the emails, supporting his declaration that he was not aware of those emails and never saw them until after he filed suit. The Ninth Circuit then held that the district court correctly decided that the plaintiff’s continued employment after he received the emails could not be construed as consent to arbitrate workplace claims because silence does not constitute assent.

Employers with a workforce in California who are considering rolling out or updating arbitration programs should take note and consider designing and implementing appropriate non-coercive, non-electronic methods of following up with employees who do not open or respond to such emails.

Case Background

Plaintiff Scott Rickes brought a lawsuit in the U.S. District Court for the Southern District of California against his employer, Thermo Fisher Scientific, Inc. (“Thermo Fisher”), alleging he and others similarly situated whom he seeks to represent were unlawfully subjected to age discrimination under California law. Thermo Fisher moved to compel arbitration, relying on emails the company sent to the plaintiff’s work email address that contained a link to an agreement to arbitrate claims such as this. Thermo Fisher relied on evidence it submitted to the district court to demonstrate that it sent that email to the plaintiff four times in 2019. The plaintiff, however, declared that he never saw those emails because he was very busy at work and it was not uncommon for him to have unopened emails. Id. He argued that there was insufficient evidence to demonstrate that he assented to the arbitration agreement and therefore it could not be enforced.

The district court denied Thermo Fisher’s motion to compel arbitration, finding no evidence that an agreement to arbitrate had been reached by the parties under California contract formation principles. Thermo Fisher appealed the district court’s ruling.

The Ninth Circuit’s Decision

On August 5, 2026, a panel of the Ninth Circuit, in an unpublished decision, unanimously affirmed the district court’s decision. The Ninth Circuit agreed no evidence had been submitted to demonstrate that the plaintiff had ever opened any of the emails containing a link to the arbitration agreement. Asa result, there was no evidence that the plaintiff saw the arbitration agreement.

In explaining its rationale, the Ninth Circuit first noted that a contract can only be formed with mutual assent. Under California law, this requires both notice of an agreement and mutual assent to it. Mutual assent is absent when a party has not received notice of the proposed contract.

The Ninth Circuit also concluded that while “outward manifestations” of assent can be objectively inferred by a party’s conduct at times, such is not the case where this plaintiff’s conduct was mere silence in response to the offer to form an agreement to arbitrate claims related to his employment. Id. at 3.

As a result, the Ninth Circuit considered – and rejected – Fisher Scientific’s argument that where a current employee continues to work at his position after having been informed that an arbitration agreement will govern any employment claims going forward, such employee is legally considered to have assented to arbitration by inference. Due to his silence, the Ninth Circuit decided the plaintiff could not have been deemed to have accepted the agreement by failing to opt out within forty-five days.

Finally, the Ninth Circuit dispensed with Fisher Scientific’s argument that continued employment despite unsigned arbitration agreements can constitute assent to arbitration because the cases cited were inapposite. Some applied to situations where a plaintiff was subject to an employment agreement that he agreed to that contained an arbitration clause (which is not the case in this matter) and others applied to cases where an employee signed a receipt saying they received an agreement or an employee handbook containing an arbitration provision (again not at issue in this matter).

Implications For Employers

Employers with a workforce in California should heed this ruling if they are planning on rolling out new or revised arbitration agreements to cover potential employment law claims. Relying solely upon electronic means to implement such a workplace arbitration program is likely insufficient to bind employees. Employers should consider planning for non-electronic follow-up contact methods to reach employees who do not respond to emailed requests to consent to arbitration agreements; implementing tracking methods to identify such employees; and carefully crafting such follow-up communications to neutrally and in a non-coercive manner inform the employees of the need to open the email and respond to it in a timely manner. Doing so could mean the difference between facing expensive and protracted litigation in California state or federal court involving potential additional aggrieved individuals and perhaps defending a single plaintiff arbitration matter at much lower costs.

August 6, 2026August 6, 2026 by Gerald L. Maatman, Jr.

Eighth Circuit Affirms Jury Verdict For Employer In Racial Harassment Case, Finding Insufficient Evidence Of Failure To Prevent Discrimination

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

Duane Morris Takeaways: On August 4, 2026, in Equal Employment Opportunity Commission v. Sun Chemical Corporation, No. 25-1318 (8th Cir. Aug. 4, 2026), the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s judgment in favor of an employer following a jury verdict rejecting a hostile work environment claim brought by the EEOC and an intervenor employee. The Eighth Circuit held that even assuming the jury instructions failed to adequately cover the EEOC’s theory that the employer could have prevented the harassment, the evidence in the record did not support such a theory. The opinion illustrates the importance of employers taking prompt corrective action in response to workplace harassment and reinforces the principle that an employer cannot be held liable for failing to prevent harassment when it lacked actual or constructive knowledge of ongoing discriminatory conduct.

Case Background

Bryan Banks and Ricardo Nevarez were both technicians at Sun Chemical Corporation, a manufacturer of inks, colorants, and coatings. Id. at 1. Their relationship deteriorated over time, culminating in a confrontation in which Nevarez punched a locker while standing near Banks and screamed that Banks was a “f***ing [N-word]” three times. Id. Banks reported the incident to a manager. Id. Sun Chemical suspended Nevarez for five days without pay and warned him that future incidents would lead to further discipline, up to and including termination. Id. at 1-2. Banks received a written warning for his profanity during the exchange. Id. at 2.

Banks subsequently filed a charge of race discrimination with the EEOC. Id. After conciliation efforts failed, the EEOC sued Sun Chemical in the U.S. District Court for the Western District of Missouri, alleging violations of Title VII of the Civil Rights Act of 1964. Id. Banks intervened. Id. Together, the EEOC and Banks argued that Sun Chemical’s response to Nevarez using the N-word was insufficient.

The Plaintiffs’ hostile work environment claim proceeded to a jury trial. Id. at 3. The jury returned a verdict in favor of Sun Chemical, concluding that the company did not discriminate against Banks. Id.

The Eighth Circuit’s Opinion

On appeal, the EEOC argued the jury received flawed jury instructions that did not cover its theory that Sun Chemical could have prevented the harassment. Id. The instructions indicated that plaintiff needed to prove that the company “knew or should have known of the harassing conduct” and “failed to take prompt and appropriate corrective action to end the harassment.” Id. The EEOC contended that the instructions addressed only whether Sun Chemical adequately responded to the harassment rather than whether the company had failed to prevent the harassment. Id. at 3-4.

The Eighth Circuit declined to decide whether the instructions adequately reflected the EEOC’s failure-to-prevent-harassment theory, holding instead that the evidence in the record did not support such a theory. Id. at 4. It explained that, even under the EEOC’s theory, Sun Chemical had to (1) have actual or constructive knowledge of “ongoing” harassment by Nevarez, and (2) decline to take “remedial action reasonably calculated to stop it.” Id.

As to the first element, the Eighth Circuit found that, at most, Sun Chemical may have known that Nevarez had used the N-word on one previous occasion toward a different Black employee. Id. Nothing about that incident would have placed the company on notice that Nevarez was a “known serial harasser.” Id. The Eighth Circuit distinguished cases where employers knew of continued harassment from a single isolated incident, noting that “a single harassing act might not be actionable standing alone.” Id. citing Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1124 (8th Cir. 2007).

Regarding the second element, shortly after the first incident, Sun Chemical sent a written disciplinary action to Nevarez directing him to “take a step back and begin to think about what you are about to say and the consequences that may follow.” Id. Although the Eighth Circuit acknowledged the response “could have been stronger,” it concluded that the discipline “reflected Nevarez’s more than three decades of service without a history of harassment,” and the law does not require an employer “to fire a harasser in the first instance to demonstrate an adequate remedial response.” Id. at 4-5.

The Eighth Circuit also rejected the EEOC’s unsupported argument that Nevarez used the N-word in occasional workplace conversations, finding that no one reported that conduct to Sun Chemical and there was not “enough information to raise a probability of harassment in the mind of a reasonable employer.” Id. at 5. It concluded that the occasional uses of the slur were not “so severe and pervasive that management reasonably should have known of them.” Id.

Implications For Employers

The Eighth Circuit’s decision in Sun Chemical provides several important takeaways for employers. First, the decision reinforces that an employer’s duty to prevent workplace harassment is triggered only when it has actual or constructive knowledge of discriminatory conduct. A single isolated incident, without more, does not place an employer on notice that an employee is a serial harasser requiring heightened preventive measures.

The opinion also confirms that courts will consider the totality of the circumstances, including the employee’s length of service and disciplinary history, when evaluating whether an employer responded appropriately. Employers should, however, document all known incidents and any progressive discipline, making clear that further incidents will result in escalating consequences, and in turn, underscoring the importance of reporting mechanisms. The Eighth Circuit found that the EEOC could not establish constructive knowledge of unreported incidents of alleged harassment. Employers who maintain clear reporting channels and anti-harassment policies may be better positioned to defend against claims that they should have known about discriminatory conduct that was never brought to management’s attention.

July 29, 2026July 29, 2026 by Gerald L. Maatman, Jr.

“Calling” Out Fraud: Florida Federal Court Allows Counterclaim To Proceed Against TCPA Plaintiff

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

Duane Morris Takeaways: On July 21, 2026, in Smith v. GetMeHealthCare, LLC, No. 25-CV-00568, 2026 WL 2089044 (M.D. Fla. July 21, 2026), Judge Sheri Polster Chappell, writing for the U.S. District Court for the Middle District of Florida denied a Telephone Consumer Protection Act (“TCPA”) plaintiff’s motion to dismiss a common law fraud claim brought by the defendant. Although TCPA claims can prove difficult to win on a motion to dismiss, this decision provides TCPA defendants with another powerful tool at the pleadings stage and helps create opportunities for companies to educate courts on a plaintiff’s fraudulent activity early in the proceedings.

Case Background

In 2025, Plaintiff Keneisha Smith (“Plaintiff” or “Smith”) filed a TCPA lawsuit against GetMeHealthCare, LLC (“GMHC”), alleging she received 31 unwanted telemarketing calls over a 10-day period. She claims these calls were made without her consent and even though she registered her telephone number on the national do-not-call registry.

Nonetheless, on June 12, 2025, Smith answered one of these alleged telemarketing calls. She provided her name, phone number, address, date of birth, and current insurance information. The agent then transferred Smith to a GMHC employee, who helped Smith complete the enrollment process, and signed her up for an insurance plan. Even though Smith willingly signed up for insurance, she sued GMHC claiming it violated Section 227(c)(5) of the TCPA, and its implementing regulations, for calling her telephone number despite its registration on the national do-not-call registry.

But GMHC decided to put these facts in front of the Court right away. Instead of simply moving to dismiss the claims, GMHC answered the complaint and filed counterclaims for fraudulent misrepresentation and fraudulent inducement. It argued that “Smith’s willingness to participate in the June 12, 2025, call is inconsistent with her wish not to be contacted.” Id. at *1. Smith also allegedly lied about her age, her actual willingness to obtain health insurance, and her desire to be contacted in the future. In support of its counterclaims, “GMHC sent a recording of the June 12, 2025 call and attached transcript of the call” to its pleadings. Id. at *1, n.1.

In response, Smith moved to dismiss the counterclaims.

The Court’s Decision

In a well-reasoned order, Judge Chappell denied Smith’s motion to dismiss in its entirety, finding “all of Smith’s arguments to be meritless.” Id. Although Smith asserted various arguments regarding the Court’s jurisdiction and GMHC’s requested relief, the majority of the opinion focused on the actual allegations of GMHC’s counterclaim, which were sufficiently pled to survive a motion to dismiss.

In federal court, fraud claims must be pled with a heightened degree of particularity. See Fed. R. Civ. P. 9(b). Under this standard, “claims of fraud must proffer ‘the who, what, when, where, and how of the fraud alleged.’” Smith, 2026 WL 2089044, at *2 (quoting Omnipol, a.S. v. Worrell, 421 F. Supp. 3d 1321, 1343 (M.D. Fla. 2019), aff’d sub nom., 32 F.4th 1298 (11th Cir. 2022))

Here, Judge Chappell found that GMHC pled all of these details and the misrepresentations could be actionable. Judge Chappell found that Smith’s alleged conduct before the call where she “consent[ed] to be contacted,” when coupled with her misrepresentations about her “age” and desire to complete “enrollment,” could plausibly constitute fraud. Smith, 2026 WL 2089044, at *3. Judge Chappell also accepted GMHC’s plausible allegations that Smith’s “motivation [was] to commit fraud” and the communication was orchestrated to form the basis of “a lawsuit against GMHC to get money.” Id. Judge Chappell also independently concluded that the recording and transcript of the call supported “most, if not all, of GMHC’s allegations.” Id.

Thus, Judge Chappel rejected “Smith’s Rule 9(b) argument” and declined to dismiss the claim. Id.

Implications For Companies

The litigation strategy in Smith is significant for companies facing TCPA lawsuits.

As many companies know, it is common for a consenting customer to invite telemarketing calls, and then “deceptively play[] along” upon receipt of those calls, only to turn around and sue the caller in a TCPA class action. Abramson v. Oasis Power LLC, No. 18-CV-00479, 2018 WL 4101857, at *5 (W.D. Pa. July 31, 2018). When companies try to explain these tactics to courts at the pleadings stage, the concerns are often brushed away as “unpersuasive.” Id. The reason that strategy is ineffective is because “[p]rior express consent is an affirmative defense to a claim under the TCPA” and typically must be resolved after discovery. Murphy v. DCI Biologicals Orlando, LLC, No. 12-CV-1459, 2013 WL 6865772., at *4 (M.D. Fla. Dec. 31, 2013) (quotations omitted).

With the benefit of discovery, companies can often demonstrate the “Plaintiff invited the initial call . . . [and] further calls by playing along on the first call” as a basis why a class should not be certified because it is a unique defense that “will distract from the claim to the Class’s detriment.” Sapan v. Fed. Sav. Bank, No. 23-CV-00075, 2025 WL 3050064, at *8 (C.D. Cal. Sept. 30, 2025) (denying class certification based on typicality); see also Sapan v. Veritas Funding, LLC, No. 23-CV-00468, 2023 WL 6370223, at (C.D. Cal. July 28, 2023) (same). But it requires a significant investment to litigate a claim through class certification, and many companies are looking for an exit opportunity prior to that stage in the proceedings.

Smith provides companies with a tool to get these facts in front of courts at the earliest stages of the litigation and shape the judge’s impression of the case. It also provides companies with additional recourse as common law fraud opens up the door to tort damages that are traditionally off the table in TCPA cases. For example, in Illinois, there is an argument that “actions at common law fraud provide for the award of attorney fees and costs, as well as punitive damages.” Father & Sons, Inc. v. Taylor, 703 N.E.2d 532, 547 (Ill. App. Ct. 1998).

Further, even if the counterclaim cannot result in the entire action being dismissed at the outset of a case, it can create leverage for the company to negotiate a favorable exit from the litigation early on. And, if the case proceeds to discovery regardless, the counterclaim can prove useful given that “a defense or counterclaim defeats typicality if it is likely to become the litigation’s focus.” Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 133 (N.D. Tex. 2020).

Thus, corporate counsel facing TCPA actions should be carefully considering the facts in their cases to determine whether they support the use of a similar counterclaim or other creative procedural defenses.

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

The Duane Morris Class Action Defense Blog’s 700th Post!

By Gerald L. Maatman, Jr.

Duane Morris Takeaways: Since its inception in September of 2022, the Duane Morris Class Action Defense blog has posted 700 times! There have been over 100,000 views to blog posts, with thousands of people reading about class action litigation developments. There are so many highlights from the last 700 posts, but we wanted to provide just a few for you here. Click on the links below to see all the hot trends in class action litigation.

We launched the third edition of the Duane Morris Class Action Review, which is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting Corporate America. The Review has been prominently featured in the media and is a must-have for all human resources professionals and corporate counsel.

We also published mini-books focused on specialized areas of law (including ERISA, Products Liability & Mass Torts, FCRA, Discrimination, Consumer Fraud, Antitrust, TCPA, Data Breach and Privacy, Wage & Hour and PAGA, and EEOC and Government-Enforcement), various unique industries (including Higher Education, Insurance, Energy, Oil, & Gas, Transportation, Automotive, & Logistics, Healthcare, Hospitality, and Digital Assets & Blockchain), and state-specific laws in class action litigation and on EEOC-Initiated litigation.

Every week on the blog, we feature attorneys and experts discussing the latest class action developments and rulings on the Class Action Weekly Wire Podcast. Tune in each week for a new episode! Some of the most popular podcasts were featuring the dismissal of a class action in a data breach area, a discussion on the California’s Supreme Court’s win for employers, and the overview of class action litigation in the digital assets and blockchain sector.

Click here to read our most viewed blog post of 2026, entitled “AI Hallucinated Case Citations Prompt Sanctions And Delay Class Action Settlement.” Over 2,000 people read this post! Other top reads included our analysis of a 2024 ruling in Illinois dismissing class action privacy claims, an overview of the American Tort Reform Association’s picks for the top Judicial Hellholes in 2025, and our always sought-after annual blog post covering the developments in EEOC FY Filings.

Thank you, loyal followers, for making the Class Action Defense blog your stop for class action litigation related information, trends, and analysis. We truly appreciate it! Please keep coming back, we promise to keep the content fresh and informative!

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.