18th Annual Workplace Class Action Report - 2022 Edition

594 Annual Workplace Class Action Litigation Report: 2022 Edition affirmed in part and reversed in part the District Court’s order dismissing Plaintiffs’ claims. In affirming the District Court’s dismissal of the free speech claim, the Ninth Circuit held that it need not decide whether the District Court erred in concluding that the Bulletin statements were germane under Keller v. State Bar of California, 496 U.S. 1, 13-14 (1990), for purposes of appeal. Even assuming that both statements were non- germane, the Ninth Circuit held that Plaintiffs’ free speech claim failed. Plaintiffs had argued that because Keller relied on Abood v. Detroit Bd. of Educ. , 431 U.S. 209, 234-36, (1977), to treat compulsory dues like union dues, and because Abood was overruled by Janus v. Am. Fed ’ n of State, Cnty., & Mun. Emps., Council 31 , 138 S. Ct. 2448, 2477 (2018), the Ninth Circuit was required to apply Janus ’s exacting scrutiny to the OSB’s assessment of membership fees. In rejecting this argument, the Ninth Circuit noted that Keller plainly had not been overruled. The Ninth Circuit also rejected Plaintiffs’ alternative argument that, assuming mandatory dues remained constitutionally permissible, the OSB failed to provide adequate procedural safeguards. The Ninth Circuit held that nothing in Keller mandated a strict application of the procedures. As alleged, the Ninth Circuit agreed that the OSB’s refund process was sufficient to minimize potential infringement on its members’ constitutional rights. The Ninth Circuit therefore affirmed the District Court’s ruling as to Plaintiffs’ free speech claim and the adequacy of the OSB’s procedural safeguards with respect to protecting Plaintiffs’ free speech rights. However, the Ninth Circuit held that the District Court erred by dismissing Plaintiffs’ free association claim. The Ninth Circuit determined that Plaintiffs raised an issue of first impression in terms of whether the First Amendment tolerates mandatory membership itself – independent of compelled financial support – in an integrated bar that engages in non-germane political activities. The Ninth Circuit concluded that Plaintiffs’ freedom of association claim was viable. Because the District Court erred in dismissing this claim, the Ninth Circuit reversed and remanded as to that issue. The Ninth Circuit pointed out that on remand there were a number of complicated issues that the District Court would need to address, including whether Janus supplied the appropriate standard for Plaintiffs’ free association claim and, if so, whether the OSB satisfied its exacting scrutiny standard. The Ninth Circuit also held that the District Court erred by determining that the OSB was an arm of the state entitled to Eleventh Amendment immunity. The Ninth Circuit concluded that the relevant factors weighed against finding the OSB was an arm of the state entitled to immunity. For these reasons, the Ninth Circuit affirmed in part and reversed in part the District Court’s dismissal order. (xl) FCRA Class Actions Arnold, et al. v. DMG Mori USA, Inc ., 2021 U.S. Dist. LEXIS 62890 (N.D. Cal. March 31, 2021). Plaintiffs, two former employees, filed a class action alleging that Defendant obtained background checks on prospective employees using disclosure and verification forms that violated the Fair Credit Reporting Act (“FCRA”). The parties filed cross-motions for summary judgment as to Defendant’s liability under the FCRA. The Court granted Plaintiffs’ motion and denied Defendant’s motion. Plaintiffs contended that the disclosure provided in the background check document was not provided as a stand-alone document, and instead contained information extraneous to the disclosure. Plaintiffs asserted that they were confused by the disclosures and that they may not have signed them had they been aware of exactly what they were signing. The Court found that the undisputed facts established that Defendant violated the FCRA by providing employee applicants with a standardized disclosure and authorization form, which contained statements about the laws of several states. The Court noted that the applicable case law authorities within the Ninth Circuit interpreted the FCRA "‘as mandating that a disclosure form contain nothing more than the disclosure itself,’ without any ‘extraneous information.’" Id . at *7. The Court further opined that the Ninth Circuit had held on "indistinguishable" facts that forms such as those used by Defendant that contained "extraneous information relating to various state disclosure requirements in that disclosure" violated § 1681b(b)(2)(A)(i) of the FCRA. For these reasons, the Court granted Plaintiffs’ motion for summary judgement and denied Defendant’s motion. Henderson, et al. v. Source For Public Data, 2021 U.S. Dist. LEXIS 95282 (E.D. Va. May 19, 2021). Plaintiffs filed a class action alleging that Defendants violated the Fair Credit Reporting Act (“FCRA”) by including inaccurate criminal information on background check reports Defendants produced. Defendants filed a motion for judgment on the pleadings, arguing that they satisfied the elements of § 230 immunity because they were an interactive computer service and Plaintiffs treated Defendants as the publisher of a third-party’s content. The Court explained that the Fourth Circuit case law authority had discussed § 230 at length and the issue of whether it applied to FCRA claims. The Court indicated that § 230 essentially provides that interactive computer services shall not be held liable for content they do not create. Further, Congress chose five exceptions to § 230