18th Annual Workplace Class Action Report - 2022 Edition

712 Annual Workplace Class Action Litigation Report: 2022 Edition United States, et al. v. Baltimore County, Maryland , 2021 U.S. Dist. LEXIS 95233 (D. Md. May 19, 2021). The United States filed an enforcement action against Defendant alleging that its written examinations for selecting entry-level police officers and cadets had a disparate impact on African-American applicants and were not job-related and consistent with business necessity in violation of Title VII of the Civil Rights Act (“Title VII”). Id . at *2. The parties ultimately settled the matter, and the Court granted preliminary settlement approval to the proposed settlement. After providing notice to class members, the parties filed a joint motion for final settlement approval. The Court granted the motion. Under the terms of the settlement, the Defendant was enjoined from using the challenged exams and from using any written exam as part of the selection process for entry-level police officers or cadets in any manner that resulted in a disparate impact upon African-American applicants and was not shown to be job-related and consistent with business necessity. Id . at *4. Additionally, Defendant agreed to adopt and use a new selection device, developed by a third-party test developer, that had no statistically significant adverse impact on the basis of race, or, if it had such impact, it must demonstrate it to be job-related for the police officer and cadet position and consistent with business necessity. Id . at *5. The settlement also provided individual relief in the form of back pay including a $2,000,000 in back pay for eligible claimants. Additionally, the settlement provided 20 priority hires who would receive: (i) an award of retroactive seniority; (ii) a hiring bonus in lieu of retroactive pension benefits; and (iii) vacation days granted upon graduation. Id . at *7. Defendant stipulated to the fact that the exams were not properly validated by an acceptable methodology and were not job-related and consistent with business necessity. The Court determined that the United States had a significant likelihood of success on the merits should the action have proceeded to trial. Further, the Court found that the agreement provided adequate relief that the challenged exams would be revised, would comply with Title VII, and would provide relief to those adversely affected by Defendant’s use of the exams. Finally, the Court reasoned that the extent of completed discovery, the stage of proceedings, absence of collusion, and experience of counsel all weighed in favor of a finding that the agreement was fair, adequate and reasonable. Id . at *11. Accordingly, the Court granted final settlement approval. (lxxi) Standing Issues In Class Actions Cabrera, et al. v. Google LLC, 2021 U.S. App. LEXIS 12 (9th Cir. Jan. 4, 2021). Plaintiff, a consumer, filed a class action alleging that Defendant overcharged advertisers for its Ad Words service and exempted large companies from the fee-generating requirements of advertising. The Defendant brought a motion to dismiss for lack of standing, which the District Court granted. On appeal, the Ninth Circuit vacated and remanded the District Court’s ruling. The District Court had concluded that Plaintiff lacked standing because he had previously sold the companies for which he secured the advertisements on Ad Words, and thus there was no injury-in-fact from the alleged overcharging. However, the Ninth Circuit rejected that position. It opined that the injury was based partly on the ownership of the AdWords account, which was not transferred by the sale of the company. The Ninth Circuit reasoned that Plaintiff maintained an Ad Words account, for which he agreed to the AdWords terms of agreement, and further, Plaintiff continued to use the account from his personal email address following the sale of the company. Id . at *2. Defendant contended that Plaintiff lacked standing because he did not incur liabilities or obligations imposed by the AdWords agreement, and because he only occasionally used the account following the sale of the company. The Ninth Circuit disagreed with Defendant’s contention and explained that months after his sale of the company, Plaintiff personally created and paid for a test AdWords ad campaign linked to his personal email. Id . at *3. Accordingly, the Ninth Circuit determined that under the terms of the AdWords agreement, Plaintiff’s allegations were sufficient to support his claim for ownership of the account and articulated a cognizable injury for standing purposes. Id . For these reasons, the Ninth Circuit vacated and remanded the District Court’s order granting Defendant’s motion to dismiss. Cason, et al. v. NFL Players Association, 2021 U.S. Dist. LEXIS 87595 (D.D.C. May 7, 2021). Plaintiffs, a group of former NFL football players who suffered from total and permanent (T& P) disability for which they received monthly benefits, filed a class action alleging seven claims of violations of the Employee Retirement Income Security Act (“ERISA”) and one claim of violation of the Labor-Management Relations Act (“LMRA”). Plaintiffs primarily sought to halt implementation of a new collective bargaining agreement ("CBA") negotiated between NFL teams and the union representing active players that would decrease or altogether eliminate their benefits. The CBA contained two provisions relating to T&P disability benefits that were central to the parties’ dispute, including: (i) the “Social Security off-set,” which reduced benefits by the amount of Social Security benefits that a player received that was set to take effect in January 2021; and (ii) the “whole person” evaluation