18th Annual Workplace Class Action Report - 2022 Edition

502 Annual Workplace Class Action Litigation Report: 2022 Edition legal malpractice claim included Defendant’s failure to meet the deadline for expert witnesses, and to notify putative class members that the class had been decertified. The Court found that common issues of Defendant’s actions, legal theories of recovery, presumed reliance, duty, and breach predominated over any individualized defenses to recovery. Finally, the Court concluded that the superiority requirement was also met as a class action would be the superior method of adjudication. The Court reasoned that the fact that no investor in the class had chosen to litigate individually undermined Defendant’s contention that individual actions were the superior method of adjudication in this case. For these reasons, the Court granted Plaintiff’s motion for class certification pursuant to Rule 23(b)(3). Editor ’ s Note: The ruling in Bobbitt constitutes a legal rarity where a legal malpractice claims turns a failed class action into a viable one due to alleged legal malpractice by Plaintiffs’ original counsel. (xv) Class Actions Involving Dress Codes Knox, et al. v. John Varvatos Enterprises, Inc ., Case No. 17-CV-772 (S.D.N.Y. Jan. 11, 2021). Plaintiffs, a group of female salespeople, filed a class action alleging that Defendant improperly granted a clothing allowance to its male salespeople but not its female salespeople in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and various other federal and state equal pay and anti-discrimination laws. Defendant provided male salespeople with $12,000 per year to buy John Varvatos signature clothing to wear at work, while Plaintiffs only received a 50% discount at Defendant’s sister clothing store, which sold significantly cheaper clothing. The parties proceeded to trial, where the jury returned a verdict in favor of Plaintiffs on all claims. Defendant moved for judgment as a matter of law and/or a new trial or remittitur on various issues relating to liability and damages. The Court denied the motion. Defendant argued that it did not have any intent to subject women to discrimination on the basis of their sex, and that it used the clothing as a marketing tool for men to wear in the stores to encourage sales to men. Defendant asserted that females were not given the clothing allowance because it did not sell women’s clothing and thus women could not market clothing in the same manner. Defendant thereby contended that it lacked any actual intent to discriminate. The Court explained that an intent to discrimination does not require proof of some kind of malevolent bias, but only that sex was a motivating factor for the employment practice, not that the practice arose from a desire to harm the protected class. The Court reasoned that the clothing policy was specifically based on sex and therefor the pay differential was also based on sex. Defendant asserted that it had a legitimate business reason to give the pay differential because only men were "required to comply with the Varvatos dress code." Id . at 4. The Court determined that the jury did not err in only finding that the differential was only determined by the sex of the person receiving the wages. The Court opined that Defendant presented no evidence of such a factor justifying the wage differential. Defendant also challenged the Court’s refusal to charge the jury on the issue of whether it had shown a " bona fide occupation qualification" defense. Id . at 6. The Court, however stated that Defendant was not entitled to a jury instruction on this defense because there was no evidence from which it could argue that the defense applied, as it only applies to the "hiring" and "employing" of workers – not to their pay. Id . Accordingly, the Court upheld the jury’s verdict finding in favor of Plaintiffs, but ordered a new trial as to the compensatory and punitive damages award. (xvi) Class Actions Involving Unions Akers, et al. v. Maryland State Education Association, 990 F.3d 375 (4th Cir. 2021). Plaintiff, a group of teachers, filed a putative class action seeking relief for themselves and other non-union Maryland public school teachers who were compelled to pay "representation fees" to unions in order to be employed as Maryland public school teachers. Id . at 377. Plaintiffs sought a refund of representation fees that they paid to the unions prior to the U.S. Supreme Court’s decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , 138 S. Ct. 2448 (2018), which decided that requiring non-union employees to pay representation fees to public-sector unions contravened the First Amendment. Id . at 378. Defendant filed a motion to dismiss pursuant to Rule 12(b)(6), which the District Court granted. On appeal, the Fourth Circuit affirmed the District Court’s ruling. As a result of the Janus decision, public-sector unions, such as the union Defendants in this litigation, ceased collecting representation fees from non-consenting employees. The District Court had determined that Plaintiffs could not recover their payments of pre- Janus representation fees to the union Defendants because the "collection of those fees was authorized by state statute and pursuant to Supreme