18th Annual Workplace Class Action Report - 2022 Edition

582 Annual Workplace Class Action Litigation Report: 2022 Edition Court determined that the contracts were in Plaintiffs’ possession prior to the Court’s ruling on their motion to compel and could have been relied upon, and was thus not newly discovered evidence. Plaintiffs further argued that the Court erred in failing to consider declarations from three Plaintiffs averring that they went out of business, and therefore could not provide any competitive advantage to Plaintiff from the information sought. The Court had ruled that of the hundreds of Plaintiffs in the case, the fact that three went out of business did not alleviate the advantage that disclosure would provide to remaining Plaintiffs. Accordingly, the Court denied Plaintiffs’ motion for reconsideration. Smith, et al. v. FirstEnergy Corp., Case No. 20-CV-3755 (S.D. Ohio Feb. 11, 2021). Plaintiffs, a group of Ohio residents and businesses, filed several consolidated class actions alleging that Defendants violated the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), and the Ohio Corrupt Activity Act (“OCAA”) by participating in an illegal bribery scheme, lasting from 2017 to 2020. Defendants also were named in an action seeking criminal charges against them (the “Criminal Action”). The alleged criminal acts occurred when Former Speaker of the Ohio House of Representatives, Larry Householder, and his alleged co-conspirators (the “Householder Enterprise”), received $60 million from Defendant FirstEnergy to further their political and personal interests. Id . at 2. In exchange, the Householder Enterprise “coordinated” the passage of House Bill 6 (“HB6”), a billion-dollar energy bailout that purportedly saved two failing Ohio nuclear power plants that were affiliated with FirstEnergy. Id . As part of the bailout, Plaintiffs incurred “monthly surcharges” on their electric bills. Id . Defendants moved to stay discovery pending the resolution of the Criminal Action. The Court denied the motion. The Court explained that none of the Defendants were indicted or being criminally investigated, so the status of the Criminal Action did not weigh in favor of a stay. Further, the Court agreed with Defendants that there was significant overlap of the issues, and thus this factor weighed in favor of a stay. In examining the interests and prejudice to Plaintiffs, the Court noted that it could be years until the Criminal Action was finalized, and waiting to start discovery for such a long period would be particularly harmful to Plaintiffs, which weighed heavily against a stay. Defendants argued that not granting the stay would prejudice them because the witnesses in the Criminal Action could invoke their right to remain silent in response to civil discovery, and therefore “access to key testimony and documents” would be “restricted,” thereby “prejudicing [them] by hindering their ability to defend themselves.” Id . at 6. The Court reasoned that since none of the Defendants was indicted or part of an investigation, there was no need to stay discovery on this ground. Finally, the Court determined that the public interest factors weighed against a stay, as staying the putative class action alleging a fraudulent scheme potentially affecting Ohio residents and businesses would harm those individuals and would cause the case to remain on the Court’s docket indefinitely. For these reasons, the Court denied the motion to stay discovery. Stiner, et al. v. Brookdale Senior Living, Inc. , 2021 U.S. Dist. LEXIS 116521 (N.D. Cal. June 22, 2021). Plaintiffs, a group of elderly residents of senior living centers, filed a class action alleging claims against Defendant under the Americans With Disabilities Act (“ADA”), as well as California state law claims under the Unruh Civil Rights Act, the Consumer Legal Remedies Act, and § 17200 of the California Business and Professions Code. During discovery, the parties disputed whether Defendant adequately responded to an interrogatory that requested Defendant to identify any and all facilities that were altered after January 26, 1992.” Id . at *3. The Court held that Defendant sufficiently produced the information in its possession and if required to answer the interrogatory in more specific terms, it would be required to compile a summary. The Court noted that Defendant produced 12,000 pages floor plans, blueprints, and spreadsheets in response to the interrogatory. However, Plaintiffs contended that much of the documentation lacked specific dates or whether or not the structures were “as-built” or modified. Id . Plaintiffs thus requested that Defendant identify each facility altered after January 26, 1992 or declare under oath that “it has no information within its possession from which such facilities can be identified.” Id . at *4. Defendant argued that (i) the request did not support Plaintiffs’ motion for class certification; (ii) it had no information beyond that production; (iii) it did not maintain the information in the form the Plaintiffs wanted; and (iv) Plaintiffs had sought the information through subpoenas to various municipalities, which would be a more convenient means to obtain the information. Id . The Court agreed with Defendant, and it denied Plaintiffs’ motion on the grounds that Defendant already turned over blueprints, building plans, and spreadsheets with this information. Id . at *5. Stiner, et al. v. Brookdale Senior Living, Inc. , Case No. 17-CV-3962 (N.D. Cal. Aug. 9, 2021). Plaintiffs, a group of elderly residents of senior living centers, filed a class action alleging claims against Defendant under