18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 585 the number of Black and Hispanic officers eligible for promotion to Lieutenant, Captain, and higher ranks, thereby causing a notable adverse impact on Black and Hispanic officers at each identified promotion level. The Court therefore ruled that the promotion processes had an adverse impact as to all ranks up to and including Captain. The Court opined that the statistical evidence of longstanding adverse impact, the evidence of deliberate indifference to those disparities, and the additional evidence on both the operation of the promotion process and the broader operations of the PGCPD established that Plaintiffs had satisfied the requirement of demonstrating a likelihood of success on the merits of their claim. Id . at *86-87. The Court also found that the continued operation of the non-competitive promotion tests imposed irreparable harm, because it would delay the promotion of eligible officers, and allow other officers with whom these eligible officers will be competing for assignments and promotions to move ahead of them in the promotion process. Id . at *90-91. Finally, the Court determined that the balance of the equities and the public interest favored a preliminary injunction. Accordingly, the Court granted a preliminary injunction barring the continued use of the existing promotion system after the 2020 competitive promotion cycle and the April 2021 non-competitive promotion tests and required the appointment of an independent expert to review the promotion system and to recommend changes to reduce or eliminate adverse impact and discrimination against Black and Hispanic officers. Id . at *96. At the same time, however, the Court declined to enjoin the administration or use of the 2020 competitive promotion tests and skills assessments already completed or the April 2021 test and Corporal promotion tests because Plaintiffs failed to identify any person who had been subject to the specific harm alleged. For these reasons, the Court granted in part Plaintiffs’ motion for a preliminary injunction. Slaight, et al. v. Tata Consultancy Services, 2021 U.S. App. LEXIS 497 (9th Cir. Jan. 8, 2021). Plaintiffs, a group of employees, filed a class action asserting that Defendant maintained a pattern or practice of intentional discrimination whereby it treated persons who were of South Asian or of Indian national origin more favorably than those who were not South Asian or of Indian national origin. Following a 12-day trial, a jury rendered a unanimous verdict in favor of Defendant. Thereafter, Plaintiffs filed a motion for a new trial pursuant to Rule 59. The District Court denied the motion. On appeal, the Ninth Circuit affirmed the District Court’s ruling denying a new trial. Plaintiffs contended that: (i) the jury returned a verdict against the weight of the evidence; and (ii) the District Court’s incorrect evidentiary rulings led to an unjust result. Plaintiffs argued that they presented compelling statistical evidence of discrimination that Defendant failed to rebut, as well as documentary and anecdotal evidence that corroborated the disparities identified in their statistical evidence for which Defendant failed to offer a viable non-discriminatory explanation. In rejecting Plaintiffs’ Rule 59 motion, the District Court determined that the cross-examination of Plaintiffs’ expert, Dr. Neumark significantly undermined his credibility and conclusions. Given the issues with Dr. Neumark’s testimony, the District Court was not convinced that the jury’s verdict was mistaken. The Ninth Circuit agreed with the District Court’s conclusion. Additionally, the District Court opined that Defendant’s economics expert, Dr. Lazear, presented an alternative statistical approach that explained that there was no discriminatory hiring animus. Plaintiffs also asserted on appeal that the District Court improperly instructed the jury regarding the finding of a “pattern or practice” and “intent.” Id . at *2. The Ninth Circuit rejected this contention. It opined that a disparate treatment claim requires proof of intentional discrimination, and thus the instruction of requiring “intent” was not erroneous. Id . Plaintiffs also argued that the District Court instructions necessarily implied to the jury that statistics were not sufficient to satisfy the second element of intentional discrimination. Id . at *3. The Ninth Circuit concluded that the formulation of the instruction was not sufficiently confusing or misleading so as to constitute an abuse of discretion. Id . Further, the Ninth Circuit reasoned that even if the instruction were sub-optimal, "it is more probable than not that any error was harmless.” Id . at *5. The Ninth Circuit also ruled that the jury instruction did not misinform the jury about whether citizenship discrimination could indicate race or national origin discrimination. The Ninth Circuit further determined that the exclusion of certain evidence was not error because the excluded exhibits reflected only a few comments by particular individuals who were not company executives, and did not themselves illustrate a widespread policy of racial or national origin discrimination at the company. For these reasons, the Ninth Circuit affirmed the District Court’s finding of no clear error in the jury’s verdict. (xxxvi) Disqualification Of Counsel In Class Actions Canfield, et al. v. SS&C Technology Holdings, Inc. , 2021 U.S. Dist. LEXIS 49800 (S.D.N.Y. March 17, 2021). Plaintiffs in several related class actions were current or former employees of DST Systems, Inc. who participated in its 401(k) Profit Sharing Plan together with Plan fiduciaries. Plaintiffs alleged that the fiduciaries