18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 513 wards suffered from as a result of having NAS. Plaintiffs sought to certify two nationwide classes, two California statewide classes, and two Ohio statewide classes pursuant to Rule 23(b)(2). The nationwide classes asserted claims for violations of the RICO against certain marketing and supply chain Defendants and requested relief in the form of medical monitoring, creation of a science panel, compensatory damages, punitive damages, and attorneys’ fees. Plaintiffs also requested certification statewide classes of legal guardians of Ohio-based and California-based residents. In addition to the same RICO claims made against the nationwide class, the Ohio statewide class claims included negligence, negligence per se , civil battery, and civil conspiracy. The California statewide class asserted RICO claims, negligence, negligence per se , and violations of the California Unfair Competition Law (“UCL”). The Court denied Plaintiffs’ motion for class certification because it found that the proposed classes did not satisfy the implied requirement that class membership must be ascertainable. The Court reasoned that one of the problems with Plaintiffs’ request for class certification was that identifying a child’s legal guardian was difficult because a child’s legal guardian can be changed and someone who was a guardian of a child at the time of class certification might not have guardianship when the case was over. Likewise, the Court noted that someone might also become a legal guardian later during the litigation. The Court noted that its concerns were especially acute where many of the guardians suffered from opioid addiction, and so were at greater-than-average risk of potentially losing guardianship, leading to new guardians for their children. Although legal guardianship can be objectively ascertained by documentary evidence, the Court determined that this alone could not make a class ascertainable where class membership was even modestly in flux over a long period of time. Additionally, the Court found that another issue with the guardians’ proposed definitions of the class was that NAS was not easy to diagnose as there was no checklist of symptoms that were always present and automatically lead to a diagnosis of NAS. For these reasons the Court denied Plaintiffs’ motion for certification pursuant to Rule 23(b)(2). Morr, et al. v. Plains All American Pipeline, L.P., 2021 U.S. Dist. LEXIS 191695 (S.D. Ill. Oct. 6, 2021). Plaintiffs filed a class action asserting claims under the Oil Pollution Act and state law claims for negligence, nuisance, and trespass arising from an oil spill at Defendant’s pipeline. Plaintiffs filed a motion for class certification pursuant to Rule 23, which the Court denied. This case arose from a spill of approximately 100 barrels of crude oil from Defendant’s pump station located approximately 2.6 miles west of Pocahontas, Illinois and 6 miles northeast of the residential areas of Highland, Illinois. Id . at *2. Following the spill, approximately 56 barrels were recovered as a result of cleanup efforts. The spill touched approximately 19 residential properties along the banks of a creek, but the rest of the spill was contained in a ditch. Plaintiffs sought to certify a class consisting of all owners or lessees of residential properties in the Pocahontas, Grant Fork, and Highland Illinois communities, from July 10, 2015 to present. The Court determined that the proposed class definition did not identify a specific harm suffered during a particular timeframe or in a particular way and was therefore overly broad. The Court observed that to be included in Plaintiffs’ proposed class definition, one must only live in a specific geographic area, but that area included individuals who were not harmed as a result of the oil spill and therefore lacked standing. The Court reasoned that the fact that there was an oil spill was not sufficient to include anyone who lived in areas around the spill as part of a class of members entitled to damages. The Court explained that Plaintiffs’ proposed class consisted of over 4,400 households, most of which did not have any shoreline along the pathway of the spill and who could not have suffered a legally recognized injury or harm. The Court therefore concluded that class certification was improper, as Plaintiffs failed to identify a sufficiently definite class. For these reasons, the Court denied Plaintiffs’ motion for class certification. (xxii) Class-Wide Proof And Class-Wide Damages In Class Actions Ford, et al. v. TD Ameritrade Holdings, 995 F.3d 616 (8th Cir. 2021). Plaintiff, a customer, filed a class action against Defendants for securities fraud, alleging that Defendants’ order routing practices violated § 10 of the Securities Exchange Act. Plaintiff sought to certify a class of investors who purchased and sold securities through TD Ameritrade between 2011 and 2014. A Magistrate Judge previously had concluded that the proposed class did not satisfy the requirements of Rule 23(b) and recommended denying certification. The Magistrate Judge had reasoned that determining whether each customer suffered economic loss as a result of the company’s order routing practices would entail an order-by-order inquiry, and therefore common issues did not predominate over individual questions. Id . at 619. On Rule 72 review of the recommendation, the District Court determined that Plaintiff’s expert had developed an algorithm that calculated the economic losses, and therefore granted class certification. Defendant appealed, and the Eighth Circuit reversed and remanded the