PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
Announcing the Launch of the Class Notice Project
Starting today, litigators can access free, easy-to-use class notice templates designed to seamlessly facilitate the creation of notices that are engaging and understandable for class members.
Migrant Youth Class Action Holds Government Accountable, Sparking Landmark Reforms
In January 2024, the district court granted preliminary approval of three groundbreaking settlements to resolve the remainder of the Lucas R. case. These settlement agreements will provide new resources and protections by expanding the rights of three classes of youth in immigration custody: (1) youth with disabilities, (2) youth prescribed psychotropic medication, and (3) youth who seek assistance for legal counsel. The settlements not only represent much-needed reform, they also highlight the power youth hold when they share their stories and use their experiences to hold accountable those in power.
Female High School Athletes Go the Distance in Title IX Settlement with Hawaii Department of Education
Female athletes at Campbell alleged widespread and systemic sex discrimination. Female athletes frequently had to use bathrooms in a nearby Burger King or hide underneath bleachers to change for practice. The girl’s water polo team would often have to practice in the ocean, facing winds and waves. Meanwhile, male athletes had access to their own locker room and appropriate athletic facilities. Moreover, when Campell’s female athletes reported disparate treatment to the school, they faced retaliation and threats to cancel the girls water polo season. Plaintiffs sought injunctive relief under Title IX. They alleged the Hawaii Department of Education and the Oahu Interscholastic Association failed to provide female athletes with equal athletic participation opportunities and equal athletic treatment and benefits. Plaintiffs also alleged the Department of Education retaliated against the class when student athletes reported gender discrimination.
Impact Fund and Allies file Amicus Brief to rebuff defamation claims in Class Action litigation
The Impact Fund and amici focused on the panel’s misunderstanding of “ascertainability,” a term of art particular to class actions. Ascertainability is the implied prerequisite that a class be defined by clear and definite terms so that a court can determine who is bound by a judgment and who is entitled to relief. Critical to the issue at hand, ascertainability is a forward-looking inquiry, asking whether a court will be able to ascertain class membership at some future point in the litigation. It has never meant that plaintiffs know who is in the proposed class at the time of filing.
District Court Finds Amenities Fees To Be Illegal Excess Rent for Section 8 Tenants
The Eastern District of California recently decided in Terry v. Wasatch Advantage Group, No. 2:15-cv-00799 (E.D. Cal., November 23, 2022), that certain amenities fees are illegal excess rent and violate contract terms for the Section 8 Housing Choice Voucher Program. The Court ordered the defendants, who are private property owners and managers, to repay the fees to their tenants.
Tesla Trounced! Court Shreds Forced Arbitration Agreement & Reaffirms Workers’ Right to Fight for the Public Good Under FEHA in Racial Discrimination Case
For the first time, a California appellate court recently held that the state’s Fair Employment and Housing Act (FEHA) authorizes plaintiffs to seek public injunctions, and any agreement purporting to waive that agreement is invalid. This decision expressly reaffirms that workers can fight for the public good under FEHA because the public suffers when employer discrimination and harassment go unchecked. California law ensures that workers can seek to protect the public from discrimination and harassment through injunctive relief, even if other types of claims are subject to mandatory individual arbitration.
Latinx Workers Reach Groundbreaking Class Action Settlement in Immigration Raid Case
In April 2018, an immigration raid at the Southeastern Provision meatpacking plant in the small town of Bean Station, Tennessee upended a community. Federal agents from Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Internal Revenue Service (IRS) descended on the plant alongside Tennessee Highway Patrol troopers and local police officers. Armed with long guns and raid gear, agents detained around 100 Latinx workers, transported them to a National Guard armory, and placed most in deportation proceedings.
Nike Runs Into Trouble Trying to Hide Discriminatory Pay Disparities
In our recent victory in the class action Cahill et al v Nike, we defeated Nike’s attempt to hide Plaintiffs’ analysis of pay disparities at the company from the public. The case is a reminder about the importance of resisting attempts by defendants to shroud class proceedings in secrecy.
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.
West Virginia Can No Longer Discriminate Against Transgender Medicaid Participants
On August 2, 2022, federal District Court Judge Robert C. Chambers granted affirmative summary judgment for Plaintiffs in Fain et al. v. Crouch et. al, and ruled that West Virginia could no longer discriminate against transgender Medicaid participants by excluding coverage for gender-confirming surgical care. In their complaint, Plaintiffs alleged that West Virginia state health insurance plans deprive transgender people of essential, and sometimes life-saving, health care.
Case Advances Challenging “Debtors' Prison” for Non-Payment of Bond Supervision Fees in Texas
Anderson County’s bond supervision fee is another example of criminalizing poverty, and another example of how Texas is a major civil rights battlefield right now. Ability to pay is not considered and not paying can mean jail time. In other words, pre-trial defendants can be incarcerated simply because they can’t afford a fee — a modern-day debtor’s prison.
Class Action Challenging Voter Suppression in Tennessee Survives Motion to Dismiss
Under Tennessee law, anyone convicted of a felony after 1981 is stripped of the right to vote. The result of this policy is that more than 9% of the total voting age population of Tennessee – and more than 21% of African-American voting age population – cannot vote. Despite more than 365,000 Tennesseans having completed their entire felony sentences, including probation and parole, only about 3,400 people have successfully obtained Certificates of Restoration since 2016 – less than 1%.
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.
BROWN UNIVERSITY RE-LEARNS TITLE IX LESSON: DON’T “RILE UP” THE AMY “COHENS OF THE WORLD”
Cohen v. Brown University, which the First Circuit just referred to as “This landmark Title IX case,” started in April 1992, after the school stopped funding its varsity women’s gymnastics and volleyball teams. Eleven female athletes won precedent-setting rulings, preserved their teams, and forced Brown to comply with Title IX notwithstanding Brown violating the agreement in the open to “kill this pestilential thing.”
RESPONDING TO THE RESTRICTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS
The arc of employment discrimination class action law is bending away from justice. As a result, plaintiffs’ lawyers frequently have to self-censor, generally in the opening complaint or the class certification motion, or as we did in Simpson at the 23(f) stage. Maximizing the chances for certification may require defining the class or multiple small classes so as to eliminate potential class members, claims, or forms of relief. Unfortunately, this type of self-censorship deprives employees of the possibility of obtaining the types of broad reforms that we were once able to achieve and hopefully can again pursue in the future as the law evolves.
Impact Fund Stands With Low-Income “Section 8” Tenants
Throughout her tenancy, Terry’s property manager demanded that she pay for “additional services,” such as laundry machines, renter’s insurance, and parking—including for a period when she did not own a car. When she couldn’t pay, they tried to evict her. Terry was not alone. Wasatch Property Management and its related entities, whose portfolio includes more than 16,000 units across five states, charged hundreds of Section 8 tenants similar fees, using 3‑day notices to threaten eviction when tenants failed to pay.
“With Friends Like These” - How Not to Write an Amicus Brief: More Lessons On Class Action Law From Mr. T v. Social Media
Prompted by former President Trump’s spate of class actions against Facebook, Twitter, and Google, we recently shared some best practice tips on filing class actions, a topic close to our hearts. A new court filing and order in Mr. Trump’s case against Twitter offers us yet another opportunity to weigh in on a different and important subject to the Impact Fund’s mission—writing effective amicus briefs. So what have we learned? Write an amicus brief that actually says what you say it says. Write an amicus brief that is about an issue actually in the case. Don’t include six-page footnotes. Don’t suggest that the judge needs something explained at a fifth-grade level. Don’t tell the judge to issue an edict that the legislature pass a better law than the one on the books.
Students With Disabilities Score Class Action Victory In Second Circuit
Earlier this month, the Second Circuit issued a great published decision in A.R. v. Conn. State Bd. of Educ., No. 20-2255, 2021 WL 2833031 (2d Cir. July 8, 2021) affirming a permanent injunction prohibiting the Board from terminating programs for students with disabilities who did not receive their high school diplomas before turning 22. The panel upheld the district court’s conclusion that a Connecticut law denying special education programs to students between their 21st and 22nd birthdays violated the federal Individuals with Disabilities Education Act (IDEA), which requires free, appropriate education for students with disabilities.
SCOTUS Rules on TransUnion v. Ramirez Class Action: "We Decide If It’s a Federal Case, Not Congress."
On the one hand, the outcome is hardly surprising. The conservative majority has once again limited access to the federal courts for consumers to challenge corporate malfeasance, erecting ever higher threshold procedural hurdles. On the other hand, the decision holds some interesting surprises, including a full-throated defense of the rights of the injured consumers by the dissenting Justice Thomas, joined by Justices Breyer, Kagan, and Sotomayor. The decision is well worth a close read.