18th Annual Workplace Class Action Report - 2022 Edition

460 Annual Workplace Class Action Litigation Report: 2022 Edition Hughes class members, Plaintiffs believed that American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). tolled their statute of limitations while that case remained stayed before the District Court. However, the District Court rejected Plaintiff’s invocation of American Pipe, holding that the actions were filed untimely because the Hughes decision ended American Pipe tolling and restarted the statute-of-limitations clock. On appeal, the Sixth Circuit reversed and remanded. Plaintiffs contended that a ruling on the merits of class certification was necessary to restart the statute of limitations clock in all circumstances, and without it, tolling continued as long as the case was pending before the District Court or on appeal. The Sixth Circuit determined that absent class members reasonably relied on class representatives to continue to represent them and press their claims after the administrative denial of the motion for class certification in Hughes . Thus, the Sixth Circuit explained that these interests would be best served by applying American Pipe tolling in the circumstances of the Hughes denial. Accordingly, the Sixth Circuit ruled that following the decision in Hughes, claims of absent class members continued to be tolled and Plaintiffs’ statute of limitations clock did not restart. For these reasons, the Sixth Circuit held that the Hughes administrative denial did not terminate American Pipe tolling, so Plaintiffs’ actions were timely filed. The Sixth Circuit therefore reversed and remanded the District Court’s ruling. (v) Appeals In Class Action Litigation AdTrader, Inc., et al. v. Google, 7 F.4th 803 (9th Cir. 2021). Plaintiff filed a class action on behalf of itself and advertisers who used Defendant’s advertising services but did not receive refunds for invalid traffic. Defendant agreed to issue refunds to the advertisers, but continue to litigate the claims the claims asserted by Plaintiff on behalf of other putative advertiser classes and by Plaintiff individually. Defendant also stipulated that it would pay the attorneys’ fees of Plaintiffs, if awarded by the Court, rather than have them deducted from any common fund for payments to class members. Id . at 807. Plaintiff filed a motion for an award of attorneys’ fees and argued that it was entitled to a percentage of the monetary benefit it conferred on behalf of the advertisers pursuant to a California fee-shifting statute or, alternatively, the "common fund" doctrine. Id . The District Court denied attorneys’ fees under the fee-shifting statute, but awarded fees under the common fund doctrine. On appeal, the Ninth Circuit dismissed Plaintiffs’ appeal for lack of appellate jurisdiction. The Ninth Circuit reasoned that the class action had not reached a final judgment on the merits or a final settlement, and hence no exception to the final judgment rule applied to give it appellate jurisdiction. The Ninth Circuit opined that there was not a special "common fund exception" to 28 U.S.C. § 1291 separate from the collateral order doctrine. Id . at 809. The Ninth Circuit found that the fee award was not a collaterally appealable order because the order was not effectively unreviewable on appeal, as there was little risk that counsel’s right to fees – whether equitable or contractual – would be destroyed if not vindicated before judgment. Id . For these reasons, the Ninth Circuit dismissed the appeal for lack of appellate jurisdiction. Bruno, et al. v. Wells Fargo Bank N.A. , 2021 U.S. Dist. LEXIS 75262 (W.D. Penn. April 20, 2021). Plaintiffs, a group of home mortgage consultants (“HMCs”), filed a class action alleging that Defendant violated various provisions of federal and state wage & hour laws. The District Court previously had granted conditional certification of a collective action consisting of all HMCs nationwide, including those who were hired after Defendant implemented its arbitration policy. Defendant argued that there was thus a sub-set of HMCs who were subject to binding arbitration (“Arbitration HMCs”) and that they should not be provided with notice of the collective action. Defendant filed a motion to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), requesting that the Third Circuit determine whether it agrees with the Fifth and Seventh Circuits that District Courts lack discretion to require that notice be sent to employees who have entered into valid arbitration agreement under certain circumstances at the conditional certification phase of actions brought under the FLSA. Plaintiffs did not challenge the existence of the agreements, but argued that consideration of such an issue was improper at the conditional certification stage. The District Court reasoned that it would take the approach of the Fifth and Seventh Circuits and not permit distribution of the notice to otherwise eligible opt-in Plaintiffs if they were bound by arbitration agreements. The District Court noted that absent any evidence to the contrary, the agreements should be enforced. The District Court concluded that based on the clear language of the arbitration agreements, Defendant sufficiently demonstrated that the Arbitration HMCs claims were subject to arbitration. The District Court further determined that since there was legal uncertainty about whether the enforceability of an arbitration agreement involved a "merits based" inquiry, certification of an interlocutory appeal would streamline the case, advance the course of the litigation, and avoid confusion. Id . at *13. For these reasons, the