18th Annual Workplace Class Action Report - 2022 Edition

482 Annual Workplace Class Action Litigation Report: 2022 Edition Defendant’s course materials, website, or student bulletins were a "definite, specific, or explicit" promise that Defendant would continue on-campus instruction despite a global pandemic. Id . at *12-13. The Court opined that the statements amounted to "general promises or expectations," which did not create contractual obligations. Id . at *13. The Court therefore concluded that Plaintiffs’ breach of contract claim must be dismissed. The Court also ruled that the UCL claims were based on the same facts as the breach of contract claim, and therefore it also should be dismissed. Balow, et al. v. Michigan State University, 2021 U.S. Dist. LEXIS 31017 (W.D. Mich. Feb. 19, 2021). Plaintiffs, a group of female student athletes, filed a class action alleging that Defendant provided "fewer and poorer athletic participation opportunities" for women than it does for men. Id . at *3. Plaintiffs sought a preliminary injunction to block Defendant from removing its varsity women’s swimming and diving team. The Court denied the motion. To support their claim of unequal opportunity, Plaintiffs offered an expert analysis from Donna Lopiano, who used publicly available data to support her opinion that Defendant’s participation gap was too large for participation opportunities to be substantially proportionate. Id . at *18. Lopiano asserted that Defendant improperly inflated the sizes of several of its women’s teams. The Court, however, determined that Lopiano’s analysis contained several flaws, including that she based her analysis on guesses and inferences from the data. Lopiano also opined that some of the female athletes should not count as participants because they did not participate in competitions, but the Court noted that assertion conflicted with her acknowledgement that such participation was not necessary for an athlete to count as a participant for purposes of Title IX. Id . at *21. Defendant provided a report prepared by its expert, Timothy O’Brien, who provided details suggesting that there was no significant participation gap .The Court ruled that the record was insufficient for it to find that Defendant improperly inflated its participation opportunities for women, or that Plaintiffs had shown a likelihood of success on their claim to the extent it required them to demonstrate such inflation. The Court, however, found that Plaintiffs established that they would be subject to irreparable harm absent an injunction because the discontinuation of their team likely would have significant impact on Plaintiffs’ athletic experience and their ability to compete at an elite level in the future. Id . at *32. Finally, the Court reasoned that the public interest would be served by preventing discrimination in the provision athletic opportunities for women; however, the Court reasoned that Plaintiffs have not shown that they were likely to succeed on that claim. Id . at *33. Absent such a showing, the Court ruled that an injunction would not serve the public’s interests. For these reasons, the Court denied Plaintiffs’ motion for a preliminary injunction. Berndsen, et al. v. North Dakota University System, 2021 U.S. App. LEXIS 23646 (8th Cir. Aug. 10, 2021). Plaintiffs, a group of female ice hockey players, brought a putative class action alleging that Defendant violated Title IX, 20 U.S.C. § 1681(a), when it eliminated its women’s ice hockey team, but not its men’s ice hockey team. The District Court dismissed Plaintiffs’ complaint on the basis that Plaintiffs had failed to state a claim as a matter of law. On Plaintiffs’ appeal, the Eight Circuit found that Plaintiffs’ legal theory had properly pled a viable Title IX claim. After reviewing the regulatory materials’ text and structure, the Eight Circuit concluded that the District Court’s primary reasons for dismissing the complaint rested on an incorrect view of the law. Title IX provides that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Because Title IX does not specifically address its application to athletics, Congress directed the Department of Education to prepare and publish proposed regulations with respect to intercollegiate athletic activities. Under the implementing regulation, effective since 1975, no person shall, on the basis of sex, be excluded from participation in any athletics offered by a recipient, and no recipient shall provide any athletics separately. However, that general ban includes an exception for some single-sex teams. Plaintiffs’ complaint relied upon the Department’s 1979 interpretation relative to the “Contact Sports Clause,” which addressed a rule providing that a university’s selection of sports and levels of competition must "effectively accommodate" the interests and abilities of members of both sexes. Id . at *7. The Department’s policy interpretation included a clause stating that “if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex," if opportunities for the excluded sex have historically been limited, and there is sufficient interest among members of that sex to field a team and a reasonable expectation of intercollegiate competition. On that basis, Plaintiffs alleged that Defendant was required to sponsor a team in women’s ice hockey. The Eighth Circuit determined that the clause’s use of the mandatory term “must” unambiguously required an institution sponsoring a single-sex contact sports team ( e.g ., men’s ice hockey) to sponsor a team