18th Annual Workplace Class Action Report - 2022 Edition

652 Annual Workplace Class Action Litigation Report: 2022 Edition misrepresentation or a proper representation would predominate. Accordingly, the Ninth Circuit affirmed the District Court’s ruling denying Plaintiffs’ motion for class certification. (lviii) Preemption Issues In Class Actions Carcillo, et al. v. NHL, 2021 U.S. Dist. LEXIS 58751 (N.D. Ill. March 29, 2021). Plaintiffs, two former professional hockey players, filed a class action alleging claims that Defendants’ "negligence and conscious disregard" for their safety increased the number of concussive and/or sub-concussive blows they sustained during their NHL careers; "failure to warn" claims alleging that Defendants breached their common law duties to inform them of the increased risks of developing long-term brain disease and neurocognitive impairments; and that Defendants deliberately concealed and misrepresented material facts and information from Plaintiffs regarding the risks of developing brain damage from in-game fighting. Id . at *8. Defendants moved to dismiss the complaint on the basis that § 301 of the Labor-Management Relations Act (“LMRA”) completely preempts Plaintiffs’ state law claims and, alternatively, that Plaintiffs failed to state plausible claims. As to choice-of-law, Defendants argued that the states should be Pennsylvania, where Plaintiff Carcillo played the most games, and Massachusetts, where Plaintiff Boynton played the majority of his games. Id . at *15. The Court agreed, and therefore applied Pennsylvania and Massachusetts law to Plaintiffs’ respective claims. First, the Court held that Plaintiffs’ theory of negligence rested upon a common law duty to refrain from unreasonably harming others, and this Court need not interpret the CBAs to resolve liability. The Court thus found that Plaintiffs’ claims survived preemption to the extent they were based upon Defendants’ alleged breach of common law duties to refrain from unreasonable harm. Therefore, the Court ruled that the LMRA completely preempted the claims to the extent Plaintiffs based them upon the theory that Defendants breached certain duties they voluntarily undertook. Plaintiffs also alleged that Defendants breached their "duty to disclose . . . relevant and highly material health information it possessed regarding the significant risks associated with the head traumas endured during NHL fights, including, but not limited to, permanent brain damage." Id . at *20. The Court noted that because such a duty to disclose arose only from fiduciary or contractual obligations, these claims were also preempted by the LMRA. As to the allegations that Defendants knew or should have known that playing through brain traumas resulted in brain damage, and that Defendants negligently failed to warn them of this risk, the Court reasoned that since it would need to consult the CBAs to determine the scope of that duty, § 301 of the LMRA also preempted Plaintiffs’ failure to warn claim. Finally, as to Plaintiffs’ intentional misrepresentation claim, Plaintiffs alleged that Defendants "knowingly concealed" from them the risks of brain damage; that Plaintiffs relied upon Defendants’ silence or denials of risk; that Defendants intended to deceive them; and that Defendants’ knowing concealment of the effects of fighting caused their injuries. Id . at *25. The Court opined that to the extent that Defendants had a duty to disclose information, that duty would ostensibly arise from the CBAs, and thus the LMRA preempted Plaintiff’s theories of intentional misrepresentation by omission and negligent misrepresentation. However, the Court ruled that these claims could survive to the extent that Plaintiff maintained a theory that Defendants injured them through making active, intentional misrepresentations. Id . at *26-27. The Court concluded that Plaintiffs claims failed at the outset, because article 17 of the CBAs provided that all disputes "involving the interpretation or application of, or compliance with, any provision of" the CBA be resolved through a grievance procedure and arbitration. Id . at *29-30. Accordingly, the Court granted Defendant’s motion for judgement on the pleadings, finding that Plaintiffs’ state law claims were completely preempted by § 301 of the LMRA. Martinez v. Omni Hotels Management Corp., 2021 U.S. Dist. LEXIS 10521 (S.D. Cal. Jan. 19, 2021). Plaintiffs, two former banquet servers, filed a class action alleging that Defendant paid Plaintiffs improperly low overtime and sick leave rates in violation of the California Labor Code Private Attorneys General Act of 2004 (“PAGA”). Namely, Plaintiffs’ complaint contained only one count under the PAGA claiming that Defendant: (i) paid an illegally low overtime rate; (ii) "paid an illegally low paid sick leave rate;” (iii) failed to authorize and permit rest breaks; (iv) failed to provide accurate wage statements; and (v) failed to pay all wages due upon termination of the employment relationship. Id. at *2. Shortly after Plaintiffs filed the action, Defendant removed the case on the basis of federal question jurisdiction, contending that Plaintiffs’ claims were preempted by § 301 of the Labor-Management Relations Act (“LMRA”) in light of the parties’ collective bargaining agreement (“CBA”). Id. at *5. Plaintiffs then filed a motion to remand on the grounds that the parties’ CBA did not raise a federal question because Plaintiffs’ claims did not arise entirely from the CBA. Id. at *6. The Court granted Plaintiffs’ motion to remand. The Court noted that to establish preemption under California law, Defendant had