PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
Impact Fund and Allies File Class Action Amicus Brief in Ninth Circuit On Behalf of Seniors and People With Disabilities
The amicus brief authored by the Impact Fund, Disability Rights Advocates, and the Disability Rights Education and Defense Fund argues that the district court’s decision ran afoul of existing case law and will undermine enforcement of ADA access laws in the precise cases where systemwide enforcement is most needed.
Female athletes from James Campbell High School score class certification after Ninth Circuit Appeal
When several students and parents from the girl’s water polo team flagged concerns of gender discrimination, the DOE retaliated against the class. The administration threatened to cancel the water polo season, increased scrutiny of the team, and mysteriously lost required team paperwork. This retaliatory conduct and the stark inequality between male and female athletes at Campbell are out of bounds under Title IX. In an upset, the District Court denied class certification in 2019 finding that the class failed to meet numerosity standards and, for the class-wide retaliation claims, that plaintiffs failed to show typicality and commonality.
Ninth Circuit Panel Decertifies Class of Janitorial & Maintenance Workers: Impact Fund & Amici Urge Rehearing
A certified class of janitorial and maintenance workers survived two motions for decertification, successfully proved employer wrongdoing at summary judgment, and received significant damages in a jury bellwether trial before seeing their efforts undone by the Ninth Circuit. The recent panel opinion in Bowerman v. Field Asset Services, Inc., 39 F.4th 652, 661-63 (9th Cir. 2022), reversed certification after over seven years of litigation as a certified class. In doing so, the panel blatantly ignored the district judge’s repeated conclusion that the case was best managed as a class action.
Ninth Circuit Finds That Discrimination Is A Concrete Injury For Purposes Of Article III Standing
The last few years have brought more and more standing-based challenges to our clients’ ability to have their day in court, with some success – look no further than TransUnion v. Ramirez, for example. Fortunately, the Ninth Circuit just rejected an attempt to insulate a bank from liability for admitted citizenship discrimination on standing grounds. Chattopadhyay v. BBVA is a class action alleging that BBVA (Banco Bilbao Vizcaya Argentaria) discriminates on the basis of citizenship status in violation of 42 U.S.C. 1981 and California’s Unruh Civil Rights Act.
Ninth Circuit Nixes "100% Natural" Wesson Oil Class Action Settlement; Finds Collusion On Attorney Fees
The court held that the class settlement—one it characterized as “reek[ing] of collusion at the expense of class members”—featured three “red flags” identified in Bluetooth. First, Plaintiffs’ counsel received a disproportionate share of the settlement—almost $7 million—while the class received less than $1 million. Further, the settlement provided for no direct notice to class members, reducing the redemption rate. Second, the parties agreed to a “clear sailing arrangement” in which ConAgra agreed not to challenge the agreed-upon fees for class counsel. This created the possibility that Defendant agreed to pay class counsel excessive fees in exchange for counsel accepting a lower amount for class members. Third, the agreement included a “kicker” or “reverter” clause in which ConAgra, not the class members, would receive a reversion of excess fees if the court reduced the agreed-upon attorney’s fees.
Impact Fund and Amici: Ninth Circuit’s New “De Minimis” Standard for Predominance Is Wrong and Disadvantages Workers
Our brief argues that the panel’s decision is inconsistent with decades of Supreme Court and Ninth Circuit precedent regarding class certification and trials challenging employment discrimination and other workplace violations, such as wage theft. To require plaintiffs to demonstrate no more than a “de minimis” number of uninjured class members at the class certification stage forces district courts to engage in a full-blown inquiry into the merits of the case, an inquiry which the Supreme Court and the Ninth Circuit have repeatedly stated courts are expressly forbidden to undertake at that stage.
Impact Fund and NAACP Legal Defense Fund to SCOTUS: Don’t Rewrite Typicality
The Impact Fund and NAACP Legal Defense and Educational Fund, Inc. filed an amicus brief in the U.S. Supreme Court on behalf of ourselves and twenty-four civil rights organizations. We argue that Ramirez indisputably satisfied typicality, as every class member in the case presented the same claims, were subject to the same conduct, and sought the same relief as Ramirez did. “TransUnion seeks to turn Rule 23 typicality on its head, asking the high court to rewrite the rule to protect defendants rather than absent class members,” declared Impact Fund’s Executive Director Jocelyn Larkin. “Nothing in the language or purpose of the rule supports TransUnion’s approach.”
California Supreme Court Ponders Digital Discrimination Case, White v. Square
Along with Disability Rights Advocates and the Disability Rights Education and Defense Fund, the Impact Fund has written an amicus brief urging the California Supreme Court to recognize that turning users away through discriminatory terms of service or other actions is illegal discrimination, and that users who are deterred by discriminatory terms should be able to bring legal claims in court.
A question for Microsoft: How many #MeToo’s does it take?
Sworn statements explained how women at Microsoft are undervalued in comparison to men, are denied opportunities that men receive, are left out of important meetings, and work in a sexualized environment in which male employees stare at women’s breasts, grope them, and comment on their bodies and clothes. One woman explained the pressure that she and other women feel to “hit the sweet spot between being perceived as ‘too timid’ or ‘overly passionate’ and ‘too harsh’ in Microsoft’s male-dominated culture.” Her male manager lowered performance ratings for her and the team of women she supervised because he believed they did not “smile enough.”
Class Certification Does Not Require That Class Member Identification Be “Administratively Feasible."
Most people do not retain receipts for the myriad of food items and inexpensive consumer goods that they purchase each year. But, should this entirely understandable fact of modern life provide a license to corporations to defraud consumers who buy these products?