18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 701 Pletcher, et al. v. Giant Eagle, Case No. 20-CV-754 (W.D. Penn. Dec. 15, 2021). Plaintiffs, a group of grocery store customers, filed a class action alleging that Defendant’s mandatory mask mandate implemented in response to the COVID-19 pandemic violated the Americans With Disabilities Act (“ADA”). Following Plaintiffs’ failure to respond to Defendant’s discovery requests, the Court imposed sanctions on Plaintiffs, and ordered payment of attorneys’ fees and costs to defense counsel in relation to their time spent finding the discovery responses themselves through social media. Plaintiffs thereafter filed a motion seeking to have their counsel advance the sanctions on their behalf. The Court denied the motion. Defendant contended that Plaintiffs’ counsel paying the sanctions was “ethically impermissible” under Rule 1.8(e)(1) of the Professional Rules of Responsibility. Id . at 2. Plaintiffs asserted that their contingent fee arrangement authorized counsel to advance money to pay sanctions, and that they had agreed to reimburse counsel at the conclusion of the case. The Court explained that the issue was an unsettled ethic question. With a plain reading of the parties’ contingency fee agreement, the Court could not find any language that specified whether attorneys’ fees and costs ordered from a discovery sanction could be advanced by counsel. The Court was also unpersuaded that Plaintiffs would remain responsible for reimbursing the sanctions if counsel paid the sanction on their behalf at this juncture of the case. The Court further found that Plaintiffs’ counsel failed to establish that Plaintiffs could not afford to pay the sanction. Accordingly, the Court denied Plaintiffs’ motion, and ordered Plaintiffs’ to pay the sanction to defense counsel. Seb Investment Management AB, et al. v. Symantec Corp. , 2021 U.S. Dist. LEXIS 77040 (N.D. Cal. April 20, 2021). Plaintiffs, a group of investors, filed a securities fraud class action alleging that Defendants reported false quarterly revenues to protect bonuses. The Court had previously granted lead Plaintiff status to SEB Investment Management AB, with Mr. Hans Ek, the Chief Executive Office, the designated as the appointee overseeing the case. Plaintiff ultimately selected Bernstein, Litowitz, Berger & Grossmann, LLP (“BLBG”) as class counsel, and the Court approved the appointment. Thereafter, the Court was informed by a class members that Ek left Plaintiff’s employment and was working for BLBG. After discovery on the issue, the Court concluded that it was not clear if there was quid pro quo here to warrant sanctions. The Court did, however, note that the parties failed to inform the Court about the developments, or the fact that the case was being handled by a different colleague with Plaintiff. The Court noted that class members suffer when where the law firm gets to be class counsel in exchange for returning the favor later, and class counsel should be selected based on being best for the class members at large. The Court opined that the parties should have “avoided this spectacle,” although there was not an established clear cut quid pro quo. Id . at *5. The Court concluded that the case was too far progressed for either replacement of Lead Plaintiff or class counsel. However, the Court ordered BLBG to provide notice to class members of the issues in case they wished to opt-out of the class. The Court further ordered that in future cases where Plaintiff seeks appointment as lead Plaintiff and BLBG seeks appointment as lead counsel, they must disclose to the judge the occurrence of this sort of issue. (lxvii) Sealing Issues In Class Actions In Re Google Play Store Antitrust Litigation, 2021 U.S. Dist. LEXIS 156087 (N.D. Cal. Aug. 18, 2021). In this multi-district class action litigation involving four Plaintiff groups – including (i) Epic Games., Inc., (ii) Consumer Plaintiffs; (iii) Developer Plaintiffs; and (iv) Plaintiff States – Plaintiffs filed motions to seal portions of the amended complaints. Plaintiffs filed the motions in response to confidentiality designations made by Defendant Google LLC. The Court denied Plaintiffs’ motions to seal. Defendant argued that sealing was warranted because it has a "strict practice" of treating its internal business documents in a confidential manner, and that "[t]hese materials therefore have economic value from not being generally known to Google’s competitors, counterparties, or the general public." Id . at *14. The Court reasoned that Defendant’s reason to seal failed to show how the filing of unredacted complaints would cause it harm, and permitting sealing on the basis of Defendant’s internal practices would leave the “fox guarding the hen house.” Id . at *13-14. The Court opined that a hallmark of the federal judiciary is the "strong presumption in favor of access to court records." Id . at *12. Further, the Court explained that public access to judicial records protected the integrity of the court process and maintained the public’s confidence in the fair and impartial administration of justice. The Court held that here there was no sensitive information being disclosed as a result of filing unredacted complaints, and no other compelling reason to grant the motion to seal. Further, the Court noted that the complaints alleged violations of antitrust laws, which were matters where the public interest was particularly strong. For these reasons, the Court ordered the parties to file unredacted complaints.