18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 459 Chen-Oster, et al. v. Goldman, Sachs & Co., 2021 U.S. Dist. LEXIS 212872 (S.D.N.Y. Nov. 3, 2021). Plaintiffs brought a class action that alleged that Defendants engaged in disparate impact and disparate treatment discrimination against female employees in violation of Title VII of the Civil Rights Act of 1964. Following the Court’s ruling granting Defendant’s motion to compel arbitration as to some Plaintiffs’ claims, Plaintiffs moved to toll the statute of limitations period for class members required to arbitrate their claims. The Court granted the motion. Plaintiffs contended that class members who were compelled to arbitrate might not even know that they had been subject to such a ruling and would require time to obtain legal advice and determine whether and how to proceed with arbitration on an individual basis. Id . at *4. Defendant argued that the Court did not have authority to grant tolling for excluded class members, and that, in any event, Plaintiffs failed to establish the diligence and extraordinary circumstances required to invoke equitable tolling. The Court agreed with Plaintiffs that even if class members were aware of their ability to enter into arbitration with Defendant, they would still need to consult counsel, consider their options, and proceed to arbitration if that was what they decided was their best option. Id . at *21. Further, class counsel required the time to provide this information to a large contingent of newly excluded class members (more than 1,840 individuals), who had relied on class representation for several years throughout the litigation. Id . The Court rejected Defendant’s argument that the application of equitable tolling would unduly prejudice Defendant because it would have to endure another extension of the time. The Court reasoned that the case had already been ongoing for over three years, and therefore any prejudice to Defendant would be outweighed by the prejudice to the former class members in the absence of a tolling period to accommodate their altered status. Id . at *23. For these reasons, the Court granted the motion and ruled that the statute of limitations for excluded class members to file their claims in arbitration would be tolled for a period of 240 days. Gill, et al. v. National Football League, 2021 U.S. Dist. LEXIS 211887 (S.D.N.Y. Nov. 2, 2021). Plaintiff, an Australian resident who subscribed to the live-streaming service Game Pass Pro, filed a class action alleging breach of contract, breach of implied warranty of merchantability, and unjust enrichment in connection with Game Pass interrupting the 2020 Super Bowl. Defendant NFL filed a motion to dismiss pursuant to Rule 12(b)(6) on the grounds that it was not a party to the terms of service between Game Pass. The Court granted in part and denied in part the motion. The NFL argued that starting in 2015, it contracted with third-parties to operate the Game Pass platform. Plaintiff alleged that it contracted with the NFL and that his Game Pass contract was automatically renewed every year from 2013 through 2019. Plaintiff contended that after the first sign up, he "never received any notification that he needed to agree to any updated or change in website terms or contracting parties" during the years in which he was contracted to purchase Game Pass. Id . at *3. Plaintiffs asserted that sometime during the timeframe between 2013 and 2019, Defendants began to partner with Overtier Operations ("Overtier") and Deltatre S.p.A. ("Deltatre"),to provide Game Pass to customers. Plaintiff claimed that this partnership did not displace the 2013 contract between Plaintiff and Defendants. Further, Plaintiff contended that the Game Pass website continued to feature the NFL and its logos, and included a page entitled "NFL.com – Terms and Conditions," which stated that an agreement governed the use of "websites, mobile applications, and other online and mobile services . . . that are operated by NFL Enterprises, LLC." Id . at *4. Plaintiff contended that Overtier and Deltatre were vendors or agents of Defendants, and that even if Defendants’ intention had been to assign their contractual rights and obligations to Overtier and/or Deltatre, Plaintiff never consented to such an assignment. The Court held that Plaintiff plausibly pled that there was an agreement between the parties that bound Defendants in 2020. The Court determined that it might be found after further discovery that Defendants were not bound by the agreement, but Plaintiff sufficiently established that all parties could be bound by the contract to survive a motion to dismiss. Since Plaintiff sufficient pled a claim for breach of contract, the Court granted the motion to dismiss the unjust enrichment claim as it was duplicative of the breach of contract claim. For these reasons, the Court granted in part and denied in part the motion. Potter, et al. v. Commissioner Of Social Security, 9 F.4th 369 (11th Cir. 2021). Plaintiffs received denials from the Social Security Administration (“SSA”) pursuant to redetermination procedures enacted in connection with a previous scheme against the SSA to fraudulently obtain benefits and fees. The Sixth Circuit previously held in Hughes v. Berryhill that the SSA’s redetermination procedures violated due process and the Administrative Procedure Act and stayed the action. Thereafter, Plaintiffs in this action waited two years to file judicial review of the SSA denial decisions, although the relevant statute only allows for 60 days. As absent