18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 613 no civil order to close the business, there was no known damage to the business space or property resulting from COVID-19, and the Loss of Income Coverage excluded coverage for loss caused by virus. Id. at *5. Plaintiff sought to certify: (i) a nationwide class; (ii) a Virginia class; and (iii) a declaratory judgment class. The Court ruled that because Plaintiff alleged that Defendants wrongfully denied insurance coverage because of the COVID-19 pandemic closures, in breach of their contract, it would be inconsistent with Rule 23 to certify a class that included every single policyholder in Virginia if they did not file a claim with Defendant. Thus, the Court declined to certify a declaratory relief class under Rule 23. The Court found that the nationwide class and Virginia class met all the requirements of Rule 23. The Court determined that Plaintiffs plausibly alleged that hundreds, and perhaps, thousands of policyholders in Virginia had been impacted by Defendants’ alleged wrongdoing, and therefore, in interest of efficiency, time, and uniformity of decision, and because common issues predominated, class action treatment would be superior to any alternative means of adjudication. Id . at *31. Accordingly, the Court granted class certification to a class of individuals and entities in Virginia who submitted claims for business income losses and/or extra expenses incurred as a result of social distancing, closure and/or stay-at-home orders issued from March 2020 forward, which were denied by Defendant. For these reasons, the Court granted in part Plaintiff’s motion for class certification. Wilkerson, et al. v. American Family Insurance Co., 997 F.3d 666 (6th Cir. 2021). Plaintiff, an insured motorist, filed a class action alleging breach of contract in connection with Defendant’s alleged failure to include taxes and fees for insurance claims filed on vehicles when calculating the actual cash value (“ACV”) for the claim. The District Court granted Defendant’s motion to dismiss on the basis that the ACV of a damaged car under Defendant’s policy unambiguously excluded the taxes and fees necessary to buy a replacement. On appeal, the Sixth Circuit affirmed the District Court’s ruling. After Plaintiff filed an insurance claim for her damaged vehicle, Defendant concluded that the cost to "repair or replace" her car exceeded its pre-accident ACV. Id . at 669. Defendant estimated the car’s market value based on its location, mileage, condition, and the recent advertised prices of other comparable cars in the area. Defendant valued the car at $9,979, and thus paid Plaintiff $9,479, the calculated car value minus her $500 deductible. Plaintiff contended that the ACV referenced in the insurance policy should include various sales taxes and fees that a party typically must incur when buying a replacement car. The Sixth Circuit reasoned that the policy’s language contained the phrase "actual cash value" within the "Limits of Liability" section of the policy, where Defendant limited its liability to the lesser of two amounts, including: (i) "the actual cash value of the stolen or damaged property," or (ii) "the amount necessary to repair or replace the property." Id . at 670. Accordingly, the Sixth Circuit determined that the policy incorporated a liability limit tied to the costs of a replacement car that was separate from the liability limit tied to the damaged car’s ACV. Id . at 670-71. The Sixth Circuit noted that the policy contained other provisions that also confirmed that the “ACV” calculation was best read to refer to market value, not replacement costs without depreciation. Id . at 671. For these reasons, the Sixth Circuit explained that if actual cash value was actually "market value," by contrast, the damaged car’s market value must consider the reduction in its worth from the pre-accident wear and tear. The Sixth Circuit therefore concluded that the phrase "actual cash value" was "clear and unambiguous" when interpreted in the full context of Defendant’s policy as referring to market value of the damaged car. Id . at 673. As a result, the Sixth Circuit ruled that the District Court did not err in finding that taxes and fees were not included in the ACV under Defendant’s policy. (xlviii) Intervention Issues In Class Actions Barry ’ s Cut Rate Stores Inc., et al. v. Visa, Inc., 2021 U.S. Dist. LEXIS 120302 (E.D.N.Y. June 28, 2021). In this multi-district litigation ("MDL"), Plaintiffs, a group of merchants, brought a putative class action alleging that Defendants engaged in anticompetitive activity that imposed supracompetitive and fixed fees on the merchants. Plaintiffs sought to certify a Rule 23(b)(2) injunctive relief class consisting of all merchants who accepted Visa and/or Mastercard Credit and/or Debit cards during the relevant class period. Plaintiffs requested that the Court certify the class without permitting any opt-out rights. After Plaintiffs filed their fully briefed motion for class certification, the National Retail Federation (the “NRF”) and the Retail Industry Leaders Association (the “RILA”) (together, the “Merchant Trade Groups”) and Walmart, Inc., (collectively, the “Proposed Intervenors”), moved to intervene pursuant to Rule 24 for the limited purpose of opposing the Plaintiffs’ motion for class certification. The Court noted that Rule 24(a) allows intervention as of right when a timely motion is brought and the proposed intervenor claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its