General – Page 11 – Class Action Defense

November 16, 2022 by Class Action Defense

When Consistency Creates Commonality

Duane Morris Takeaways: Guest blogger Jonathan A. Segal – one of the deans of the employment bar in the United States – offers his ruminations on the challenges that employers face in class action litigation.

I recently attended an employment law webinar. It got me thinking about employers and the challenge of dealing with workplace class action litigation.

At one point, when discussing how to minimize exposure to discrimination claims, a seminar speaker opined there are three words to keep in mind at all times: “Consistency, Consistency and Consistency.”

When it comes to performance management, if employers treat employees consistently when the circumstances are the same or substantially similar, they can mitigate exposure to individual discrimination claims. The consistency ensures that helpful comparators exist, which employers can use to defend an alleged employment discrimination claim. Of course, and as important, the consistency here is critical to a strong workplace culture.

However, consistency is not always desirable. Huh? Stay with me.

Rule 23 of the Federal Rules of Civil Procedure 23 provides:

Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class.

As is evident, consistency may help satisfy the second requirement relative to common issues of fact or law. The U.S. Supreme Court decided that a decade ago in its seminal ruling in Wal-Mart Stores, In. v. Dukes, 564 U.S. 338 (2011).

Arguably – and we certainly see it in the courtroom in the manner of arguments by Plaintiff’s counsel – per se rules that are created to minimize any exposure to discrimination claims may increase the employer’s exposure to class claims because of the commonality they create. But one example suffices — automatic termination of employees after they have been on leave for a specified period of time.

Ralph Waldo Emerson once said that “Foolish consistency is the hobgoblin of little minds.” Let me say this with a bit more civility. While consistency often is desirable, there are times when consistency hurts rather than helps. The key is to know when consistency is desirable and when it is, well, anything but optimal.

Over the next year, I will blog about examples of employment practices/rules that create commonality that have been the basis for class action attacks. In these blogs, I also will talk about alternative approaches that help mitigate exposure to both individual and class action claims.

Stay tuned!

November 3, 2022 by Gerald L. Maatman, Jr.

Massachusetts State Court Rules In Class Action That A Multiple-Choice Promotional Test Discriminated Against Minority Police Officers

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

Duane Morris Takeaways – In Tatum et al. v. Commonwealth of Massachusetts, et al., C.A. No. 0984-CV-00576 (Mass. Sup. Ct. 2022), a Massachusetts state court judge conducted a class trial found that a multiple-choice promotional exam – used for years by various police departments to determine promotions – discriminated against Black and Latino police officers in violation of Massachusetts law. In analyzing the test format, which largely required “rote memorization,” the court opined that the exam failed to adequately test for the relevant job qualifications, as well as the police departments’ use of a ranking system from which candidates were selected for promotion. Ultimately, the court held that the test and ranking system adversely impacted minorities and interfered with their ability to promote to sergeant. The decision demonstrates why employers must be careful to implement policies and processes that do not have a discriminatory impact, even if on their face such policies and practices appear to be neutral.

Case Background

The Commonwealth of Massachusetts’ Human Resource Division (“HRD”), for 50 years, administered a written multiple-choice test to police officers to determine promotion to sergeant. Id. at 4. Officers were ranked almost exclusively according to their scores on the written examination, with individuals at the top of the list being first in line for promotion. In 2007, certain police officers that were subject to the written examination sued the Commonwealth of Massachusetts, and the municipalities in which they worked as police officers. They alleged that the testing process unfairly discriminated against them due to their race and national origin in violation of state and federal law. Id. at 2. The U.S. Court of Appeal for the First Circuit, in an interlocutory appeal, held that state defendants did not qualify as “employers” under Title VII and were entitled to sovereign immunity, thereby resulting in the dismissal of state law claims against the state defendants, which the plaintiffs subsequently re-filed in state court. Id. Though the Massachusetts state court initially dismissed the entire action based on the First Circuit decision, the Massachusetts Supreme Judicial Court remanded several claims, rejected the defense of sovereign immunity, and held that the plaintiffs could be entitled to relief under Massachusetts law prohibiting discrimination. Id. at 3. The state trial court subsequently certified a class of current and former police officers that took the written examination administered by HRD in certain years between 2005 and 2012. Id.

Ultimately, the plaintiffs lost their federal court case after a bench trial, with the federal court finding that the tests had a disparate impact on minorities but that plaintiffs failed to prove that Boston refused to adopt an alternative test with less disparate impact. Id. Though the defendants in the state court case tried to dismiss the entire state court action based on the federal court’s decision, the Massachusetts Appeals Court held that defendants did not show issue preclusion and it authorized the case for trial. Id. at 3-4. The state trial court conducted a two-week bench trial in June and July of 2022 limited to the issue of class-wide liability. Id. at 1.

The State Court’s Findings Of Fact And Conclusions Of Law

The state court found a “massive amount of evidence proving the known and unjustified disparate impact” of HRD’s testing format. Id. at 1. Turning first to the format of the test, the court noted that exam questions “largely test for rote memorization of facts and passages taken directly from textbooks that candidates are asked to study,” and studies commissioned by the HRD over the years to measure the test’s efficacy “did not identify test-taking skills and lack of test-related anxiety as job related.” Id. at 8. The multiple choice portion of the test accounted for 80% of a candidate’s score, with 20% coming from an “Education and Experience” form that each candidate would complete. Id. The court explained that the allocated percentages had no discernible basis, and further disparaged the Education and Experience portion since every officer received 14 of the 20 available points simply for being able to sit for the exam. Id. at 8, 28. Though HRD worked with consultants and subject matter experts to identify the knowledge, skills, and abilities (“KSAs”) important to the job of sergeant, the court noted that the multiple choice questions could only test for 22% to 40% of the relevant KSAs and “did not in fact test for some skills that could have been tested” due to the types of multiple choice questions asked. Id. at 13-15. Rather than focusing on abstract knowledge and memorization of academic textbooks, the court reasoned that questions testing situational judgment, for example, should have been used but were not. Id. at 19.

Given the format of the multiple-choice exam and the types of questions asked, the court observed that a racial disparity existed based on test-taking ability, and not on job qualifications. Noting that “[t]est taking skills are built through practice,” the court adopted the opinions of expert witnesses who testified that “minorities, in general, have had fewer opportunities to participate in our educational system” and differences in average test scores of minorities on tests of cognitive abilities “is due to socioeconomic differences, lack of access to opportunity, and structural racism that exists within the system.” Id. at 26. Ultimately, the court found that “[b]ecause HRD failed to test many important KSAs, measured test-taking skills and memorization, enabled test-related anxiety to affect results and failed to ask questions that focused upon measuring job-related knowledge, its format did not rank candidates for promotional purposes on a basis that was substantially job related.” Id. at 14.

The court also noted that HRD had knowledge of the shortcomings and adverse impact of its tests before and during their use. A 1987 job analysis conducted by a consulting firm recommended that a written test “did not assess many of the attributes needed for the job” and “should account for no more than 40% of the overall score.” Id. at 16. In addition, a study conducted for the Boston Police Department in 2000 advised HRD that an examination should include non-written components, such as an assessment center and performance review system. Id. at 17. The failure to include a performance based assessment technique, the court explained, “injects extraneous influences (such as test-taking ability and temporary memorization skills) into the selection process.” Id. Analysis of the rate of minorities’ promotion to sergeant showed that minorities were promoted at a drastically lower rate than non-minority officers. Id. at 17-19.

The court further determined that Defendants failed to adopt alternatives that would have minimized or eliminated the adverse impact of the tests on minority test-takers. The tests could have contained fewer questions, reducing the “large cognitive loads” and memorization required, in order to reduce the adverse impact. Id. at 45. Rather than using questions that require “rote memorization,” HRD could have used questions that tested situational judgment and were written in plain language instead of “convoluted phrases.” Id. Most notably, banding, in which scores within a range are treated as equal, would have reduced adverse impact because there was no evidence that a police officer that scored one point higher than another was more qualified or would make a better sergeant. Id. at 45-46. Further, HRD adopted 11-point bands in 2009 at the recommendation of a consultant. Id. Finally, the use of other testing methods, such as oral assessments and performance reviews, to assess nonwritten skills “such as leadership, conscientiousness, calmness under pressure, decision-making, interpersonal skills, and oral communication” would have reduced the adverse impact of the tests. Id. at 47.

As a result of the myriad shortcomings of HRD’s written tests, the Court described at length the statistically significant adverse impact of the tests on minority test-takers across all years as compared to white test-takers in the form of lower passing rates, lower overall scores, lower rate of promotion of minority police officers, and increased delay in promotion of minority police officers. Id. at 34-42. Given the adverse impact on scoring and the use of a rank-order list to determine promotions, the court found an adverse impact on the ability and timeliness of minority police officers to achieve promotion to sergeant. Id. at 57. The multiple-choice format of the exam and the ranking of candidates were not job-related, the court also held, given the invalidity of the exam and ranking process. Id. at 61-63. Based upon its factual findings, the court held that “[o]verwhelmingly persuasive evidence proves that HRD interfered with the class members’ rights to consideration for promotion to police sergeant without regard to race or national origin.” Id. at 75.

Implications for Employers

The Tatum decision illustrates why employers with criteria for promotion must be cognizant of how such testing systems may adversely impact classes of individuals in violation of state and federal law. While the testing system used in this case appeared neutral, in practice the test and ranking system resulted in less promotions and increased delay in promotions for minorities. This case demonstrates the potential for costly and years-long class action lawsuits stemming from employer policies and practices in determining promotions. Given these risks, it behooves employers to ensure that neutral policies and practices do not adversely impact groups of individuals.

October 31, 2022 by Class Action Defense

Consumer Fraud Class Actions On The Rise In The Cannabis Industry – With More To Come With Interstate Sales

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

Duane Morris Takeaways: Cannabis products – such as vapes, pre-rolled joints, tinctures, gummies, and beverages – are consumer packaged goods that are required under state law to be marketed with packaging and labeling that demonstrates their safety to consumers. Although the U.S. state-licensed cannabis industry has been one of the fastest-growing industries in the U.S. over the past decade, consumer fraud lawsuits arising out of alleged packaging and labeling problems, which are a common risk for CPG manufacturers in other industries, have, until now, not been a major consideration for the cannabis supply chain. However, that is changing. As three recent lawsuits suggest, consumer fraud class actions may be on the rise in the industry. Given the media attention cases like these attract, and the potential for damages for thousands or millions of potential consumers, the cannabis supply chain should take notice. As discussed below, this is going to be especially true once cannabis products are permitted to be sold interstate.

Key Cases

In Centeno et al. v. DreamFields Brands Inc., and Med for America, Inc., a consumer class action filed on October 20, 2022, in the Superior Court of California for Los Angeles County, two putative class representatives filed a putative class action against the manufacturers of Jeeter-branded pre-roll joints on behalf of “all persons who, while in the State of California and within the applicable statute of limitations period, purchased or more Jeeter Products.” The complaint alleges that the putative class representatives purchased a variety of Jeeter-branded pre-rolled joints based on the high THC potencies stated on the labeling of such products, but those products were actually lower in THC than stated on the labeling. Given that products with greater THC potency are priced higher than products with lower THC, the putative class representatives claim they paid a premium they would not have paid had they known the true THC potency of the Jeeter products they purchased, and thus they suffered an economic loss for which they should be made whole. Their complaint alleges that “millions of other consumers” bought Jeeter pre-rolled joints and suffered the same economic loss. As the Complaint asserts:

If Defendants told the truth — that is, that its products’ THC content is substantially lower than represented on the label — the price of its Products would fall dramatically. If consumers knew the truth — that the Products contain substantially less THC than the label says — Defendants could not sell their Products for its current prices. Indeed, as explained above, cannabis products with lower declared amounts of THC content sell for substantially less than ones with higher declared amounts of THC content. Accordingly, if Defendants told the truth about the THC content of their products, they would have had to lower the price, and Plaintiffs and class members would have paid less.

In addition to seeking for themselves and the class of “millions of consumers” damages for the amounts overpaid for the Jeeter-branded pre-rolls, the putative class representatives also seek punitive damages, attorneys’ fees, and injunctive relief to stop the allegedly fraudulent labeling under California’s unfair competition and false advertising statutes, as well as various common law claims.

We previously wrote about a number of separate actions filed against Curaleaf, the largest U.S. cannabis product manufacturer in 2021, arising out of allegations that Curaleaf mislabeled tinctures containing THC that were marketed as containing CBD. One of those cases, Williamson v. Curaleaf, Inc., a consumer class action filed in the U.S. District Court for the District of Oregon on May 30, 2022, was reported last week to have settled for payments of $150 to $200 for as many as 500 class members who are alleged to have consumed the mislabeled Curaleaf tinctures. Like the class action complaint filed in Centeno arising out of the mislabled Jeeter pre-rolls, Williamson’s class action complaint sought statutory damages, punitive damages, and attorneys’ fees under Oregon’s consumer fraud statute known as the unfair Trade Practices Act.

In addition to Centeno and Williamson, we previously wrote about Plumlee v. Steep Hill Inc., a putative class action filed in the U.S. District Court for the Eastern District of Arkansas against cannabis testing lab and cannabis cultivators NSMC-OPCO LLC, Bold Team LLC and Osage Creek Cultivation LLC, which, like Centeno, arose out of allegations that the operators falsified the amount of THC in their cannabis products. As in Centeno, Plumlee seeks class-wide damages for economic loss, i.e., amounts overpaid for mislabeled cannabis products, and as in Centeno and Williamson, Plumlee seeks punitive damages and attorneys’ fees for the alleged fraudulent conduct. Interestingly, although the claims in Plumlee are sound in consumer fraud, Plumlee asserts that the defendants acted together to form an enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act. As we previously wrote, these claims could just as easily been asserted as consumer fraud.

Future Litigation Prospects

There are a few reasons cannabis consumer fraud class actions may not have been attractive to the plaintiffs’ class action bar in recent years. First, given that cannabis products may only be manufactured and sold in the same state, the size of a class and the amount of damages are limited to consumers in a single state, as opposed to the type of nationwide class action one see with other CPGs. Indeed, Centeno, Williamson, and Plumlee, assert claims on behalf of a single state-wide class.

Second, most state cannabis markets have only recently – in the past few years – begun to grow into markets of hundreds of thousands or millions of consumers, and thus a single state class a few years ago would likely have been too small to warrant the investment in an expensive litigation by plaintiffs’ counsel.

Third, and similarly, defendants’ pockets are deeper today as a result of the increased sales over time than they were just a few years ago. For these reasons, the continued growth of state cannabis markets is likely to result in more cannabis consumer fraud class actions.

However, the interstate sale of cannabis products is really going to change the risk spectrum from consumer fraud class actions.

Once interstate sales of cannabis products are permitted, the mass marketing and distribution of cannabis products to consumers in multiple states in a region, if not nationally, will open the door to claims asserted on a nationwide basis that a cannabis consumer product was mislabeled. While such claims would be asserted under state-specific consumer fraud laws, they may be asserted on behalf of consumers around the country, resulting in significant exposure to the cannabis supply chain, i.e., growers, processors, labs, and dispensaries, for economic loss and punitive damages, as well as attorneys’ fees. These types of claims are routinely filed by the plaintiffs’ class action bar on behalf of nationwide classes arising out of the alleged mislabeling of other CPGs, and that bar will no doubt have cannabis products in their sights when interstate sales cannabis begin.

October 31, 2022 by Class Action Defense

Happy Halloween From The Duane Morris Class Action Defense Blog!

Wishing a very safe and happy Halloween to all of our loyal blog readers! Stay tuned for new updates coming soon (if the goblins underlying class actions do not scare you too much…)

October 26, 2022 by Class Action Defense

Follow The Duane Morris Class Action Defense Blog On Twitter!

The Duane Morris Class Action Defense Blog is now officially on Twitter! We have made it easier than ever for our clients and loyal followers to get breaking news updates and thought leadership regarding class action rulings, legal updates, and key trends. Follow us @DMClassAction to make sure you don’t miss any exclusive content!

October 13, 2022October 17, 2022 by Class Action Defense

$228 Million Judgment Entered In First Ever BIPA Class Action Trial Before A Chicago Jury

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

Duane Morris Synopsis: In Rogers v. BNSF Railway Co., Case No. 19-CV-03083 (N.D. Ill.), the first federal court jury trial in a case brought under the novel Illinois Biometric Information Privacy Act (“BIPA”), the plaintiffs secured a verdict in favor of the class of 45,000 workers against Defendant BNSF. After a week-long trial in the U.S. District Court for the Northern District of Illinois in Chicago, the jury found that BNSF recklessly or intentionally violated the law 45,600 times, based on the defense expert’s estimated number of drivers who had their fingerprints collected. The Court thereafter entered a judgment against BNSF for $228 million.

This landmark verdict showcases the potentially devastating impact of the BIPA statute on unwary businesses across the state of Illinois that collect, use, or store biometric information.

Case Background

Plaintiff, a truck driver, filed a class action lawsuit alleging that BNSF unlawfully required drivers entering the Company’s facilities to provide their biometric information through a fingerprint scanner. He claimed that BNSF collected the drivers’ fingerprints without first obtaining informed written consent or providing a written policy that complied with the BIPA and therefore violated sections 15(a) and (b) of the BIPA. BNSF argued that it did not operate the biometric equipment and instead sought to shift blame to a third-party vendor who operated the biometric equipment that collected drivers’ fingerprints.

The case proceeded before a jury in federal court in Chicago. The proceeding was closely watched, as it represented the very first time any class action had gone to a full trial with claims under the BIPA

The trial lasted five days. However, the jurors deliberated for just over an hour. The jurors were asked to: (1) indicate on the verdict form whether they sided with Plaintiff, and (2) if so, indicate how many times BNSF violated the BIPA negligently or how many times the company violated the statute recklessly or intentionally.

The BIPA provides for damages of $1,000 for every negligent violation, and up to $5,000 in liquidated damages for every willful or reckless violation. At the conclusion of the trial, the jury found that BNSF recklessly or intentionally violated the law 45,600 times. Accordingly, the Court entered a judgment against BNSF in the amount of $5,000 per violation, for a total amount of $228 million.

Implications For Employers

This verdict undoubtedly will embolden the plaintiffs’ class action bar and equally serve as an eye opener for businesses in Illinois. In the short term, companies can expect an uptick in the number of BIPA class actions filed by the plaintiffs’ bar. While it is almost certain that the verdict will be challenged in post-trial motions and in an appeal, companies can expect that plaintiffs’ lawyers will increase their settlement demands in other BIPA class actions.

The BIPA vastly increases the importance of adopting a strategic compliance plan for businesses that operate in Illinois. It is more important than ever for companies to implement proper mechanisms and consent forms to comply with the BIPA.

September 27, 2022 by Gerald L. Maatman, Jr.

Biometric Privacy, Plasma & Preemption: Illinois Federal Court Issues Another Pro-Plaintiff Ruling

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

Duane Morris Takeaways: In Vaughan v. Biomat USA, Inc. et al, Case No. 20-CV-4241, 2022 U.S. Dist. LEXIS 168497 (N.D. Ill. Sept. 19, 2022), Judge Marvin Aspen of the U.S. District Court for the Northern District of Illinois issued the latest plaintiff-friendly decision under the Illinois Biometric Information Privacy Act (“BIPA”), holding that federal regulations relating to plasma collection do not preempt the BIPA. For employers looking to craft novel defenses in response to the recent onslaught of biometric privacy class action litigation, this ruling represents another impediment to a potential defense strategy. Continue reading “Biometric Privacy, Plasma & Preemption: Illinois Federal Court Issues Another Pro-Plaintiff Ruling”

September 22, 2022July 5, 2023 by Gerald L. Maatman, Jr.

New York Federal Court Grants Class Certification In Pay Discrimination Litigation

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

Duane Morris Takeaways – In Chalmers, et al. v. City of New York, 22 Civ. 3389 (S.D.N.Y. Sept. 19, 2022), Judge Analisa Torres of the U.S. District Court recently certified a Title VII class action alleging race discrimination in pay for various positions involving fire protection inspectors in the City’s Fire Department. The decision in Chalmers is an important one for employers, as shows how plaintiffs’ class action lawyers are using certification theories to “work around” the seemingly impregnable barrier to class certification based on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Corporate counsel are well-served to heed the lessons of Chalmers in crafting their approaches to dealing with workplace class action litigation. Continue reading “New York Federal Court Grants Class Certification In Pay Discrimination Litigation”

September 21, 2022September 21, 2022 by Duane Morris

Introducing The Duane Morris Class Action Defense Blog

Duane Morris is proud to announce the launch of its Class Action Defense blog! Watch this space for information, insights and analysis on the latest cases and trends from some of the nation’s most experienced attorneys in defending class actions and bet-the-company cases. For more on the transformational expansion of Duane Morris’ class action defense capabilities, please see the press release on our new colleagues Jerry Maatman, Jen Riley and their team joining our firm. Welcome to Duane Morris!