18th Annual Workplace Class Action Report - 2022 Edition

512 Annual Workplace Class Action Litigation Report: 2022 Edition (xx) Class Communications Issues In Class Actions Matson, et al. v. Nibco, Inc., Case No. 19-CV-717 (W.D. Tex. Sept. 9, 2021). Plaintiffs, a group of homeowners, filed a class action for breach of express warranty and alleging that Defendant’s PEX piping installed in their homes prematurely burst, which resulted in water damage. George Fleming, Plaintiffs’ counsel in a related case entitled Williams v. Nibco, Inc., Case No. 20-CV-48, filed a motion for leave to have communications with 411 Plaintiffs whose exclusions were stricken from this matter. The Court denied the motion. The Court explained that Fleming had sent two inherently misleading, coercive, and factually inaccurate letters to the class members encouraging them to opt-out of the litigation. Thereafter, the Court: (i) restored the 411 class members who had opted-out; (ii) ordered that curative notice be sent to the class members, and (iii) re-opened the opt-out period . After the notice was drafted, Fleming objected on the basis that it failed to accurately describe some of the alleged key terms of the proposed settlement in Williams . Id . at *2. The Court overruled the objections and held that Fleming lacked standing to bring them in the first instance. Fleming thereafter requested leave to communicate with the 411 homeowners whose requests for exclusion the Court had been forced to strike due to Fleming’s previous misleading communications. The Court reasoned that granting the relief requested would be inappropriate given the history of the litigation and Fleming’s behavior. The Court ruled that the interests of justice would best be served by declining to endorse any such communication from Fleming. (xxi) Class Definition Issues In Class Actions Anti-Police Terror Project, et al. v. City Of Oakland , 2021 U.S. Dist. LEXIS 200363 (N.D. Cal. Oct. 18, 2021). Plaintiffs, a group of protestors, filed a class action alleging First and Fourth Amendment claims and state law claims of assault and battery, violations of the Bane Act, and negligence against the City of Oakland based on the use of tear gas at the George Floyd protests in Oakland between May 29, 2020 and June 1, 2020. Plaintiffs filed a motion for class certification pursuant to Rule 23, which the Court denied. Plaintiffs sought to certify a class consisting of "all persons injured by tear gas deployed by the Oakland Police Department or its mutual aid allies during the George Floyd protests from May 29, 2020, to June 1, 2020." Id . at *6. With regard to the commonality requirement of Rule 23(a), the Court explained that to extent the class included protesters who were injured by tear gas deployed by mutual aid partners rather than police officers, potential liability would depend on different policies and practices than those that were injured by deployment of tear gas by officers. The Court also reasoned that the broad class definition could include protestors who were not peacefully protesting, thereby leading to different reasons for officers’ reactions. The Court found that the class did not meet the commonality requirement, but that it might be possible to meet this requirement by modifying the class definition. The Court also held that Plaintiffs were not typical to the individuals who were engaging in conduct that was not peaceful and individuals who were injured by tear gas deployed by mutual aid partners as none of the named Plaintiffs fit those categories. The Court ruled that Plaintiffs also failed to meet the typicality requirement. The Court also explained that Plaintiffs requested certification of the same proposed class under Rule 23(b)(3) as the injunctive relief definition pursuant to Rule 23(b)(2), which would likely to confuse class members, and should be split into separate classes. Plaintiffs sought certification under Rule 23(b)(3) of their Fourth Amendment excessive force claims, and state law claims for assault and battery, negligence, and violations of the Bane Act. The Court opined that given the fact-specific inquiry required to determine whether a particular use of force was reasonable, common questions would predominate under the proposed class definition, which included every use of gas over a four-day period, made by different officers for different decisions. The Court noted that the same analysis would be required for the assault and battery and excessive force claims. As to the remaining state law claims for negligence and under the Bane Act, the Court held that Plaintiffs failed to address the elements of those claims as they related to a municipality. The Court therefore held that Plaintiffs failed to meet the predominance requirement. The Court concluded that determining class membership for the proposed class presented serious challenges that were likely to make adjudication on a class-wide basis unmanageable, such that the superiority requirement was also not met. Id . at *24. For these reasons, the Court denied Plaintiffs’ motion for class certification. In Re National Prescription Opiate Litigation, 2021 U.S. Dist. LEXIS 18475 (N.D. Ohio Feb. 1, 2021) . In this multi-district litigation (“MDL”), Plaintiffs were guardians of individual children diagnosed at birth with Neonatal Abstinence Syndrome ("NAS") who brought a class action alleging that Defendants caused the harms that their