18th Annual Workplace Class Action Report - 2022 Edition

514 Annual Workplace Class Action Litigation Report: 2022 Edition District Court’s ruling. The Eighth Circuit explained that at issue here was whether economic losses allegedly caused by Defendant’s order routing practices was the difference between the price at which customers’ trades were executed and the ‘better price allegedly available from an alternative trading source." Id . at 621. For certification of the proposed class, the Eighth Circuit opined that Plaintiff must show that he could establish this type of economic loss for class members in a manner consistent with the predominance requirement of Rule 23. Id . Plaintiff’s expert attempted to "establish that a ‘better’ price was obtainable for each executed trade," by comparing the trade’s actual price with the National Best Bid and Offer (“NBBO”) price, which represented the highest price a buyer was willing to pay, and the lowest price a seller was willing to accept, for a particular stock at a given time. Id . at 622. The Eighth Circuit rejected this approach, as sometimes a trade failed to execute at the NBBO price through no fault of the broker. Further, the Eighth Circuit explained that Defendant’s expert maintained that not all relevant unusual market conditions were recorded in the market data, and that others must be identified on a case-by-case basis. Id . Accordingly, the Eighth Circuit agreed with the reasoning of the Defendant’s expert that Plaintiff’s proposed algorithm on the use of published market data would not identify all legitimate exclusions, and therefore the experts would have to bring their own judgment to bear to identify further exclusions on a trade-by-trade basis. For these reasons, Eighth Circuit concluded that common issues would not predominate and the individualized inquiries would be required such that class treatment was not appropriate. The Eighth Circuit therefore reversed and remanded the District Court’s order granting class certification. Heredia, et al. v. Sunrise Senior Living LLC, Case No. 18-CV-1974 (C.D. Cal. Nov. 16, 2021). Plaintiffs filed a class action claiming that Defendant, a provider of assisted living and memory care for senior citizens and persons with disabilities, failed to staff its facilities at a level sufficient to provide the care it promised to its residents. Plaintiffs pointed to provisions of Defendant’s standard contracts stating that its facilities “will use its resident assessment system to identify the level of care necessary to ensure that residents receive the services they require.” Id. at 3. According to Plaintiffs, Defendant did not sufficiently staff its facilities to meet the needs of residents, which thereby resulted in harm to the residents. Plaintiffs’ complaint asserted violations of the California Consumers Legal Remedies Act (“CLRA”) and Unfair Competition Law (“UCL”), in addition to a claim for elder financial abuse under § 15610.30 of the California Welfare & Institutions Code. Plaintiffs filed a motion for class certification pursuant to Rule 23, which the Court granted. In addressing the commonality requirement of Rule 23(a) and the predominance requirement of Rule 23(b) together, the Court found that Plaintiffs satisfied commonality and predominance as to their UCL and CLRA claims because the putative class members signed similar residency agreements, were exposed to the same representations regarding Defendant’s assessment process, and were all subject to Defendant’s purportedly defective staffing model. As to Plaintiffs’ elder financial abuse claim, the Court determined that it also focused on Defendants’ common conduct, and thus common questions predominated. The Court opined that Plaintiffs proposed a viable method for “measuring damages that are directly attributable to their legal theory of the harm” caused by Defendant’s conduct. Id . at 26. The Court found that a class action would be the superior method of adjudication here because the claims alleged common misrepresentations to the class as a whole, and would provide answers on a class-wide basis that would promote judicial economy and efficiency. Id . at 27. In making this determination, the Court rejected Defendant’s position that individualized issues were encompassed within what representations, if any, were relied upon by Plaintiffs and the class members in selecting Defendant’s services. The Court reasoned that the class was sufficiently numerous at over 2,400 class members. Id . at 29. The Court held that Plaintiffs would adequately represent the class and that class counsel was experienced in this type of litigation. Finally, the Court concluded with an analysis of typicality, and reasoned that Plaintiffs’ claims were typical to those of other potential class members because they were all subject to Defendant’s common policies and relied on Defendant’s residency agreements that contained deceptive statements and omissions as to Defendant’s staffing assessments. For these reasons, the Court granted Plaintiffs’ motion for class certification. Vizcarra, et al. v. Unilever, 2021 U.S. Dist. LEXIS 224285 (N.D. Cal. Oct. 27, 2021). Plaintiff filed a class action against Defendant for claims arising out of allegedly misleading labeling of Breyers Natural Vanilla Ice Cream as containing vanilla flavor derived exclusively from the vanilla plant in violation of the California Unfair Competition Law, False Advertising Law ("FAL"), and Consumer Legal Remedies Act ("CLRA"). Plaintiff filed a motion for class certification pursuant to Rule 23, and the Court denied the motion on the grounds that Plaintiff could not meet the commonality requirements. Plaintiff asserted that she met the commonality requirement