18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 519 (xxvi) Commonality Issues In Class Actions Gorss Motels Inc., et al. v. Sprint Communications Co., L.P. , 2021 U.S. Dist. LEXIS 62136 (D. Conn. March 31, 2021). Plaintiff filed a putative class action against Defendant, alleging that Defendant sent unsolicited faxes to it and other class members in violation of the Telephone Consumer Protection Act (“TCPA”). Plaintiff filed a motion for class certification pursuant to Rule 23. The Court denied the motion on the basis that Plaintiff failed to meet the commonality requirement of Rule 23(a) and the predominance requirement of Rule 23(b). Plaintiff contended that common issues included: (i) whether the faxes were "advertisements" under the Junk Fax Protection Act and the regulations; (ii) whether Defendant was a "sender" of the faxes under the regulations; and (iii) whether Defendant’s opt-out notices complied with the statutory and regulatory requirements. Id . at *6. The Court determined that the issue of whether class members consented to the fax messages would necessarily defeat the commonality and predominance requirements. The Court noted that there were several agreements and documents involved in class member agreements, including successive franchise agreements and amendments from 1988, 2009, and 2014, related application forms, contact forms furnished by Plaintiff, approved supplier agreements, a Franchise Disclosure Document, a Property Improvement Plan, and a Wireless Service Agreement. Id . at *7. The Court opined that all the documents were “set against a background of years and years of continuing business relationships and communications between Gorss, Wyndham, and Sprint.” Id . Moreover, the Court held that there was significant gaps in time between the alleged unsolicited faxes and therefore some could have been consented to and some not due to the different agreements and plans. The Court concluded that the issue of consent would overwhelm any issues that could otherwise be tried on a class-wide basis. Id . at *14. The Court therefore ruled that a class-wide trial would bog down in disputes about whether particular class members had consented to one or more of the 18,000 faxes that were transmitted from Defendant’s services on five different dates over a period of nearly two years. Id . For these reasons, the Court denied Plaintiff’s motion for class certification. (xxvii) Consolidation And Joinder Issues In Class Actions In Re Chiquita Brands International, Inc. Alien Tort Statute & Shareholder Derivative Litigation , Case No. 08-MD-1916 (S.D. Fla. May 6, 2021). In this multi-district class action litigation (“MDL”) brought under the Alien Tort Statute for alleged human rights violations by Defendant in Columbia, Plaintiffs asserted wrongful death claims in addition to other torts under New Jersey and Colombian law. Plaintiffs filed a motion for further consolidation of three cases as an Ohio action and three cases as a Florida action pursuant to Rule 42(a) on the ground that the proposed re-grouping of the actions would reduce redundant briefing and create consistency on similar legal and procedural issues. Id . at 1. Defendants argued that: (i) the actions presented overlapping and duplicative claims, and thus should be dismissed; and (ii) Plaintiffs failed to offer a proposed consolidated master complaint demonstrating the merger of claims in the action, as some asserted claims as to only certain sub-sets of Defendants and different case filings resulted in different statutes of limitations. Id . at 2-3. The Court agreed that Plaintiffs’ proposed consolidation should be denied. The Court ruled that the cases already had been consolidated within the MDL as member cases. The Court reasoned that Plaintiffs failed to establish that further consolidation within the already consolidated MDL would create any additional efficiency. For these reasons, the Court denied Plaintiffs’ motion for consolidation. Martinez, et al. v. University Of San Diego, Case No. 20-CV-2169 (S.D. Cal. April 7, 2021). Plaintiffs, a group of university students, filed several class actions alleging breach of contract and unjust enrichment in connection with Defendant moving to online education and denying tuition refunds during the COVID-19 pandemic. Plaintiffs filed a motion to consolidate the actions, and the Court granted the motion. The Court found that the class actions were related as they all arose from the same set of facts, advanced substantially-similar legal theories, and consisted of overlapping classes of university students who paid tuition and fees for a semester in which Defendant’s activities and classes moved online to the COVID-19 pandemic. For purposes of consolidation, the Court captioned the matter In Re San Diego Tuition and Fees COVID-19 Refund Litigation , Case No. 15-CV- 2106. The Court also requested Plaintiffs to designate an interim liaison counsel on the basis that the appointment would simplify the case management and further the efficient resolution of the actions.