The number and scope of class and collective actions against businesses continue to expand. Over the last few years in the employment context, class and collective actions (and other multi-party lawsuits) at both the federal and state levels in the areas of wage and hour, discrimination, and employee benefits have cost employers hundreds of millions of dollars in judgments and settlements. This figure does not include the adverse impact that these actions may have on a company’s public image.
In addition, companies in numerous industries have become targets of consumer class actions, including those involving the Telephone Consumer Protection Act (TCPA), which protects consumers from unsolicited auto-dialed and prerecorded phone calls, text messages, and faxed advertisements. Anyone who receives such unsolicited communications can sue for damages of $500 (for negligent violations) or $1,500 (for willful violations) for each unlawful call, text, or fax. When these damages are aggregated in a class action lawsuit, a company faces massive financial exposure.
Our litigation attorneys have extensive experience representing clients in federal and state class and collective actions and multi-party litigation in judicial, administrative, and arbitral forums. We have handled a broad range of cases—from small actions to huge nationwide classes.
Defending Against Class and Collective Actions
Companies across industries turn to us to defend and protect them from financially damaging and brand-threatening disputes brought by the class action plaintiffs’ bar. Clients appreciate that we handle each class and collective action in a way that minimizes liability and cost and best positions the matter for a successful resolution. We work with our clients to create a litigation strategy tailored to their needs and goals.
Our class action team has defended clients in the following types of actions:
- Discrimination class actions involving Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and other federal and state anti-discrimination laws, and Age Discrimination in Employment Act (ADEA) collective actions
- Drug and medical device class actions
- Environmental and toxic tort class actions
- ERISA and employee benefits class actions
- Fair Labor Standards Act (FLSA) collective actions and state law wage and hour class actions
- Fair Credit Reporting Act class actions
- Fair pay actions
- Financial services class actions
- Health care class actions
- Privacy and data breach class actions
- Securities class actions
- TCPA class actions
- Workplace safety class actions
Defeating Class Certification
A company’s first and often best opportunity to successfully defend a class action is to defeat certification of the proposed class. Our attorneys have regularly succeeded in defeating class certification by developing creative and case-specific strategies through well-tailored pre-certification discovery and investigation. We have succeeded in decertifying classes in various types of actions, including Title VII, ADEA, and ADA cases and comparable state court actions; in wage and hour/FLSA class and collective actions; and in TCPA class actions.
Handling Statistics and Protecting Reputation
Beyond the proper handling of discovery and other pre-trial litigation, the successful defense of class and collective actions often involves the compilation and analysis of statistical data and the retention of appropriate expert witnesses to interpret and explain the compiled data. Clients have benefited from the broad experience our attorneys have in the development, analysis, and presentation of expert testimony, including the use of statistical data.
Because a class action may negatively impact a company’s reputation, our attorneys also help clients create legally and operationally sound internal and public communications throughout the litigation process.
Finding Ways to Avoid Class Actions
We do not accept the premise that the role of the lawyer is simply to react to events, such as the filing of a class action lawsuit against a client. We know that many of the most important decisions to minimize risk and exposure are often made before a client becomes a class action target. Therefore, we take proactive measures through direct interface with clients to avoid these lawsuits in the first place. For example, we provide compliance reviews and draft arbitration or class action waiver provisions, where enforceable.
- Defended the leading U.S. provider of inflight Internet services against a putative class action litigation that threatened the enforceability of its online contractual arbitration procedures, potentially exposing it to class action liability rather than the contractually mandated individual arbitration procedure. We demonstrated that an individualized inquiry is necessary to determine the contractual validity of online arbitration agreements. After several interim rulings by the court, the client was able to settle the matter without a cash outlay to the putative class.
- Defeated a statewide class action lawsuit against a retail chain on the pleadings. We successfully moved to dismiss the class allegations based on the named plaintiff’s conflict with the group of employees she sought to represent.
- Defeated class certification of claims brought against an ambulance industry client claiming it did not provide adequate meal and rest breaks to paramedics. We convinced the court to strike Private Attorneys General Act representative claims as unmanageable, and then persuaded the court of appeal to dismiss the plaintiff’s appeal of those rulings.
- Obtained the dismissal of a federal class action case (and an appellate decision affirming the dismissal) where the plaintiff alleged that an automated reminder texted to his phone violated the TCPA.
- Defended a national bank in a putative class action alleging that the bank violated New York State law by refusing to hire applicants based on their criminal history. We argued and won an early motion to dismiss, before a class could be certified. We demonstrated that Section 19 of the Federal Deposit Insurance Act authorized the bank’s actions and preempted New York State law.
- Shut down the threat of a class action, against dietary supplement companies, that alleged violations of the federal Food, Drug, and Cosmetic Act. Our litigation team secured dismissals of the plaintiffs’ case in multiple matters.
- Defeated class certification of claims for unpaid wages, missed meal and rest periods, and inaccurate wage statements brought against a residential housing industry client. By showing the plaintiff could not establish the elements of class certification, we reduced the matter to a single-plaintiff case, which we then convinced the plaintiff to dismiss voluntarily.
- Defended a large New York-based wine and spirits distributor against putative collective and class action claims brought by daily “shape up” employees seeking compensation for time spent waiting for work to be assigned on an as-needed basis. After successfully advocating targeted discovery instead of class certification, we obtained a summary judgment dismissal, enabling his client to avoid extensive motion practice and risk.
- Defeated a class action lawsuit brought against a national theater production company alleging that the company’s online “no outside food/drink” policy violated federal, state, and local accessibility laws. We established that the client could never have violated the law because it offered a way for individuals to request accommodations or modifications to policies, practices, and procedures, and the plaintiff never took advantage of that opportunity to engage the client.
- Protected a major insurance company from wage and hour class actions by implementing a nationwide arbitration program and agreement that includes a class action waiver for the company’s 30,000+ U.S. employees.
- Defeated a Florida class action involving surprise billing to patients who went to an in-network hospital but received an out-of-network bill from the emergency room. We showed that the allegations were preempted by Florida’s insurance law and that the class representative did not have standing to bring the suit.
- Obtained summary judgment in a class action brought against a temporary staffing company where the plaintiff claimed the temporary staffing company was vicariously liable for alleged wage and hour violations of its client. Our creative arguments were upheld on appeal, establishing a precedent in California that alleged “joint employers” are not liable for each other’s alleged wage and hour violations.