18th Annual Workplace Class Action Report - 2022 Edition

744 Annual Workplace Class Action Litigation Report: 2022 Edition restaurants entered into an unlawful agreement not to poach one another’s employees;" (ii) whether the No- Poach provision “should be judged unlawful;” and (iii) "whether the agreement suppressed Class members’ compensation, and if it did, the magnitude of that effect." Id . at *16. The Court noted that it was undisputed that the No-Poach provision was independently enforced, with some franchises using it and some not. Therefore, the Court determined that Plaintiff failed to show that common evidence would establish that most franchisees conspired with Defendant in the common pursuit of suppressing labor mobility and wages. The Court also reasoned that individual inquiries into the iteration of the provision and the differing proof of impact it had on employees would depend on each class members’ position and which version of the franchise agreement they were governed by. Id . at *32. For these reasons, the Court ruled that Plaintiff’s class failed to meet the commonality and predominance requirements of Rule 23. Accordingly, it denied Plaintiff’s motion for class certification. Deslandes, et al. v. McDonald ’ s USA, LLC , 2021 U.S. Dist. LEXIS 140735 (N.D. Ill. July 28, 2021). Plaintiff, a former franchise department manager, filed a class action alleging that Defendant’s policy prohibiting employee poaching that all franchisees must agree to was anti-competitive and thereby violated the Sherman Act. Following discovery, Plaintiff filed a motion for class certification of a nationwide class pursuant to Rule 23, which the Court denied. The agreement in question stated that “Franchisee shall not employ or seek to employ any person who is at the time employed by McDonald’s, any of its subsidiaries, or by any person who is at the time operating a McDonald’s restaurant or otherwise induce, directly or indirectly, such person to leave such employment.” Id . at *2. Plaintiff argued that Defendant’s no-poaching clause caused her to lose out on a higher- paying job at a competing McDonald’s, and that it amounted to a violation of antitrust laws. The Court found that it was required to apply the rule of reason analysis to the claims because Defendant put forth sufficient evidence of its procompetitive effects. Under that analysis, the Court concluded that Plaintiffs failed to establish commonality or predominance because the question of whether Defendants engaged in an unreasonable restraint of trade was not a common question that could be answered for all of the members of the proposed class with the same evidence, because not all of Plaintiffs sold their services in the same relevant market. The Court concluded that Plaintiffs failed to put forth evidence that they sell their labor in a national market. The Court explained that according to the evidence, 92% of McDonald’s employees worked within 10 miles of home, and therefore the relevant market for each Plaintiff’s labor was a small, geographic area, and therefore there were hundreds or thousands of relevant markets among the class members. Id . at *33. The Court reasoned that a Plaintiff could only establish that the restraint was anticompetitive by showing anticompetitive effects in the relevant market, and since the market was different for each Plaintiff, it was a question that could not be answered with common evidence. For these reasons, the Court denied Plaintiff’s motion for class certification of a nationwide class for failure to establish the commonality requirement of Rule 23. Fonseca, et al. v. Hewlett-Packard, Case No. 19-1748 (9th Cir. Oct. 14, 2021). Plaintiff brought a putative class action on behalf of all individuals who were at least 40 years old at the time that Defendant terminated them under its 2012 Workforce Reduction ("WFR") plan. Plaintiff alleged that Defendant eliminated the jobs of older, age-protected employees in order to begin replacing them with younger employees. Additionally, Plaintiff alleged that, due to Defendant’s “no-poach” agreement with 3D Systems, Plaintiff and other employees were unable to obtain employment at 3D Systems. Plaintiff’s eight count complaint alleged various claims pursuant to California law as well as the Sherman Act. Pursuant to Rule 12(b)(6), Defendant moved to dismiss the Sherman Act, Cartwright Act, and § 16600 claim under the California Business & Professions Code. The District Court granted Defendant’s motion to dismiss in its entirety. On appeal, the Ninth Circuit affirmed the District Court’s ruling. The District Court reasoned that analysis of California’s Cartwright Act mirrored the analysis under federal law because the Cartwright Act was modeled after the Sherman Act. The District Court concluded that Plaintiff’s claims under the Cartwright Act and the Sherman Act failed to allege sufficient facts to support that the challenged anticompetitive conduct stemmed from independent decisions or from a tacit or express agreement. As Plaintiff made numerous conclusory allegations regarding the alleged no-poaching agreement, the District Court opined that Plaintiff failed to provide specific facts to demonstrate that the claim was plausible. The District Court also held that Plaintiff lacked standing to challenge the provisions of the WFR plan associated with severance pay since he never signed the related release agreement. Upon review of the record, briefs, and applicable law, the Ninth Circuit concluded that the District Court did not err in applying the fact of the law to the case. Accordingly, the Ninth Circuit affirmed the District Court’s ruling granting Defendant’s motion to dismiss.