Impact Fund Files Amicus Brief In U.S. Supreme Court Transgender Case

Lindsay Nako - Director of Litigation & Training, The Impact Fund

Lindsay Nako - Director of Litigation & Training, The Impact Fund

On March 2, 2017, Impact Fund filed an amicus brief in the U.S. Supreme Court in Gloucester County School Board v. G.G., which at the time was poised to be the first of the transgender access cases to be heard in the Supreme Court. Our brief supports Gavin Grimm, a 17-year old high school student in Gloucester County, Virginia. Gavin is challenging a local school board policy that prohibits transgender students from using the sex-segregated facilities (such as restrooms) that are consistent with their gender identity. The policy is similar to North Carolina’s notorious H.B. 2 legislation and equally discriminatory.

At the time his case was filed, Gavin’s legal arguments were based in part on agency guidance interpreting Title IX’s prohibition on sex discrimination to include discrimination based on a student’s transgender status. The guidance was issued with the express intent of providing a safe and nondiscriminatory environment for all students. On February 22, 2017, the Departments of Education and Justice, headed by newly installed Cabinet Members Betsy DeVos and Jeff Sessions, withdrew this guidance. In response to “significant litigation” and in deference to “the primary role of the States and local school districts,” the Departments of Education and Justice eliminated the protections that the earlier guidance had provided for transgender students. As a result of the withdrawal, the Supreme Court vacated the favorable appeals court decision on March 6 and sent the case back to the Fourth Circuit for further consideration.

Our amicus brief demonstrates that the board’s policy is sex discrimination prohibited directly by the plain language of Title IX, independent of any regulation or guidance issued by the Departments of Education and Justice. The brief explores the current treatment of transgender people under federal laws prohibiting sex discrimination and shows that penalizing transgender people because of their transgender identity or their perceived non-conformity with gender stereotypes violates Title IX’s prohibition on sex discrimination.

“Federal courts across the country have consistently concluded that discrimination against transgender people, which often takes the form of sex stereotyping, violates laws prohibiting sex discrimination,” said Julie Wilensky, Chair of BALIF’s Amicus Committee. “The policy at issue in Gavin’s case is no different.”

Gavin Grimm is represented by the American Civil Liberties Union Foundation and the American Civil Liberties Union of Virginia Foundation, Inc. The Impact Fund also thanks Lambda Legal for its support and assistance.

Impact Fund is proud to have represented a broad coalition of 47 bar associations and non-profit and legal advocacy organizations, including Bay Area Lawyers for Individual Freedom, Advocates for Children of New York, Inc., Alameda Contra Costa Trial Lawyers Association, AIDS Legal Referral Panel, Asian Americans Advancing Justice - Los Angeles, Asian American Bar Association of the Greater Bay Area, Bar Association of San Francisco, Bet Tzedek, BiLaw, California Employment Lawyers Association, California Rural Legal Assistance, Inc., Centro Legal de la Raza, Civil Rights Education and Enforcement Center, Dallas LGBT Bar Association, East Bay La Raza Lawyers Association, Equality California, Equality Federation, Equality Florida Institute, Equality NC, Equality New Mexico, Equality Ohio, Equality Utah, Garden State Equality, Hawai`i LGBT Legal Association, Hispanic National Bar Association, Intersex & Genderqueer Recognition Project, Kansas City Lesbian, Gay and Allied Lawyers, Legal Aid at Work, Legal Aid Society, LGBT Bar Association of Greater New York, LGBT Bar Association of Los Angeles, LGBT Bar Association of Wisconsin, Massachusetts LGBTQ Bar Association, National Employment Law Project, National Employment Lawyers Association, National Queer Asian Pacific Islander Alliance, New Mexico Lesbian and Gay Lawyers Association, North Carolina Advocates for Justice, OutFront Minnesota, QLaw, Queen’s Bench Bar Association of the San Francisco Bay Area, SacLEGAL, Services & Advocacy for GLBT Elders, Stonewall Law Association of Greater Houston, Tom Homann LGBT Law Association, and Virginia Equality Bar Association.

 

 

Good Class Action Notice Boosts Participation and Results in Good Public Policy

Cameron Azari - Vice President of Epiq and Director of Hilsoft Notifications

Cameron Azari - Vice President of Epiq and Director of Hilsoft Notifications

While the value of class actions is a hot topic for some, what shouldn’t be a matter of debate is that once a class action is settled, there is only one objective – informing class members of their legal rights and, if class members can get money, clearly telling them how to get it. This is especially true in common fund settlements. It’s not only good for the settlement, its good public policy in general. Large pools of unclaimed money going to cy pres can make a settlement look bad and invites objections – the goal should always be how to ensure the maximum possible finds its way into the hands of the class members.

This may all seem obvious, but in practice this objective sometimes gets lost.

When class member data is known, individual notice must always be provided. In my experience, mailed notice typically generates a much higher claim rate than email notice (though individual cases can vary). Direct contact information (mail or email) should never be discarded for media no matter how targeted. It also is generally not a good idea to take physical addresses, search for corresponding emails, and then only use the found emails (discarding the physical addresses). When media notice is necessary, it must be carefully chosen so that it actually appears where class members can see it. Cheap online banner ads often are not delivered in the quantity promised or seen at all (often screened by adblockers or appearing below the portion of the website visible to the user). An experienced notice provider can guide settling parties and the court in choosing media that both has an adequate reach to the class and is geared to actually appear where class members will see them. Electronic notices should be carefully vetted to ensure compliance with obligations to ensure digital accessibility for people with disabilities.

Once the method for delivering notice is determined, then attention must be paid to the notice itself. Even the most attractive settlement will be scuttled if the notice cannot be read and understood easily. For mailed notice, email notice and media notice, the following tips are helpful:

·       Postcard notices are a great way to deliver individual mailed notice, but optimally they should not be more than 450 words in length. More words could possibly fit, but only at an increased risk of readability. Focus should be placed on a short summary of the case, the right to opt out, object or hire counsel, and how to file a claim.

·       Email notices can be very useful – especially when class members have provided an email to the defendant for the purposes of receiving communications. But an email notice should always be a summary, similar to a postcard. The text should not be so long as to require scrolling, and attachments should never be sent.

·       People magazine is the No. 1 consumer magazine in the United States with a readership of more than 40 million. But if a notice is an impenetrable wall of small font text, buying ad space is like throwing money away. A one-third page ad in People should never exceed 500-550 words. An attractive headline should also be used that will make a casual reader want to read further.

In all notices, detail should be left to a Long Form (or Detailed) Notice and further explanatory information on a dedicated website. Regardless of the form, all parties to the settlement should look at all the notices exactly as they will appear, and make a good-faith assessment of how they will look to a reader. It is also always a good idea to retain an experienced notice expert to draft the notices in plain language and format them so they look good in their final form.  

Regardless of the content of any settlement, when the deal is done, an obligation to the class has been created. A right to participate – or not – exists. People deserve and must be told about these rights in a way that they can understand and easily respond.

With more than 16 years of experience in the design and implementation of legal notification and claims administration programs, Cameron Azari, Vice President of Epiq and Director of Hilsoft Notifications, is a nationally recognized expert in the creation of compliant notification campaigns.

For more information, contact Cameron directly at cazari@epiqsystems.com, or visit the Epiq website for more information.

The Impact Fund is grateful to Epiq for its sponsorship of the 2017 Impact Fund Class Action Conference.

H.R. 985: Holding Down Civil Rights Class Actions

By Lynnette Miner, Litigation Fellow & Jocelyn D. Larkin, Executive Director | The Impact Fund

By Lynnette Miner, Litigation Fellow & Jocelyn D. Larkin, Executive Director | The Impact Fund

121 Civil Rights Non-Profits and 87 Ally Firms Oppose H.R. 985

On February 14, the Impact Fund submitted a letter on behalf of 121 civil rights non-profit organizations and advocates, joined by 87 ally law firms, to oppose H.R. 985 (“Fairness in Class Action Litigation Act of 2017”). H.R. 985, currently pending in the U.S. House of Representatives, would upend decades of settled class action law and undermine the enforcement of U.S. civil rights law.

The Impact Fund wrote to remind the Committee that class actions are a critical mechanism for enforcing civil rights law, including laws prohibiting discrimination in employment, housing, education, and access to public areas and services. We highlighted some of the most egregious aspects of H.R. 985 that would add unwarranted hurdles or barriers to litigating class actions.

If HR 985 becomes law, millions will have their voices silenced

If HR 985 becomes law, millions will have their voices silenced

For example, H.R. 985 imposes a new and impossible hurdle for certifying class actions that proponents of a class demonstrate that “each class member has suffered the same type and scope of injury” as the class representative(s). § 1716(a). Oftentimes individuals’ injuries stemming from the same wrongful policy or practice are not “the same.” As a simple example, those overcharged for rent will have different injuries—different amounts charged, or different ramifications for their and their families’ well-being. Existing class action law accounts for these situations—requiring that class representatives’ claims be typical of the class members’ claims, but allowing for some variation. H.R. 985 would disrupt that. What’s more, H.R. 985 would require that proponents of a class establish this “same type and scope of injury” at the class certification stage—an often-impossible hurdle that early in litigation.

In addition, H.R. 985 would add years of additional, delay, and disruption—despite its stated purpose to “assure . . . prompt recoveries.” H.R. 985, Sec. 2(1). Provisions that allow for automatic appeals for class certification decisions, automatic stays of discovery pending any one of a list of motions, and application to all cases pending upon the enactment date translate to years of delay and wasted judicial resources.

H.R. 985 is the pet scheme of U.S. Congressman Bob Goodlatte (R-Va)

H.R. 985 is the pet scheme of U.S. Congressman Bob Goodlatte (R-Va)

H.R. 985 would also entirely displace well-settled law around calculating attorneys’ fees with a standard long ago rejected as arbitrary and unworkable. Under the bill, attorneys’ fees would be calculated as a “percentage of the value of the equitable relief.” § 1718(b)(3). Civil rights class actions are often about seeking systemic reforms that benefit the most vulnerable. But how is a judge to determine the cash value of an integrated school, a well-operating foster care system, the deinstitutionalization of individuals with disabilities, or myriad other forms of relief secured by civil rights class actions? Non-profit organizations cannot bear the risk of these long and expensive cases if, at the end, their fees are calculated under this incoherent and capricious standard. 

Other provisions of H.R. 985 would impose stringent standards that would not further any interest that is not already adequately protected by Rule 23 of the Federal Rules of Civil Procedure.

Other letters were sent to the Committee to oppose H.R. 985, including from the American Bar Association (on behalf of its 400,000+ members), the Civil Rights Education and Enforcement Center (on behalf of disability rights organizations), and the Center for Justice & Democracy (on behalf of advocacy organizations).

We urged the Committee to, at a minimum, hold public hearings so that the public can weigh in on such far-reaching legislation. H.R. 985 was submitted last week to the House Judiciary Committee, and was quickly marked up in the Committee last night without any opportunity for public comment. The Republican-majority Committee voted on party lines 19-12 to recommend the bill to the House. We’ll be following this closely in the weeks ahead and working with our colleagues to defeat it.

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?

McCrory's Somber Legacy - Discrimination in Cinemascope

McCrory's Somber Legacy - Discrimination in Cinemascope

APPELLATE RULINGS IN 2016 REVEAL “BIG PICTURE” FOR RACE DISCRIMINATION

Earlier this summer, voting rights advocates won a stunning string of victories in federal courts across the country.   In one decision after another, courts struck down voting restrictions enacted by state legislatures emboldened by the Supreme Court’s myopic Shelby County decision. 

Of particular note was the Fourth Circuit’s decision in North Carolina State Conference of the NAACP v. McCrory, a must-read for all civil rights litigators...

Speaking Out Against Unlawful Sex Stereotyping of Transgender People in North Carolina’s H.B. 2

Earlier this year, the North Carolina legislature passed a sweeping anti-LGBT bill, H.B. 2, which requires public schools and agencies to discriminate against transgender people by prohibiting them from using sex-segregated restrooms according to their gender identity. Plaintiffs Joaquín Carcaño, the ACLU of North Carolina, and others filed a lawsuitchallenging H.B. 2 as unlawful discrimination against transgender individuals under the Equal Protection and Due Process Clauses and Title IX of the Education Amendments of 1972.

Ninth Circuit: "Fortuitous Non-Injury" Does Not Defeat Class Certification

The recent appellate decision affirming class certification, Ruiz Torres v. Mercer Canyons Inc.No. 15-35615 (9th Cir. Aug. 31, 2016), written by Judge Milan Smith, skillfully addresses the issues of informational injury, non-injured class members, class definition, and aggregate damages while scrupulously declining defendant's invitation to engage the underlying merits. 

A Big Year for Class Actions in SCOTUS (2016 Term Review)

The Supreme Court docket this past term had class action practitioners holding their breath. Over the last five years, the Court has limited access to class actions in cases including Wal-Mart Stores, Inc. v. DukesAT&T Mobility LLC v. Concepcion, and American Express Co. v. Italian Colors Restaurant. This term, the Court took on an unprecedented four class action cases. The outcome is fascinating and has many ramifications for the ability of class actions to serve as a vehicle for groups of people—including workers, minorities, and consumers—to hold corporations and the government accountable.

Supreme Court of California Approves Common Fund Fees

In a unanimous decision this morning, the California Supreme Court affirmed that attorneys’ fees in a class action may be calculated as a percentage of the common fund created by a settlement or judgment. Laffitte v. Robert Half Int’l, S222996 (August 11, 2016).  

In determining the appropriate percentage, the trial court may -- but is not required to – conduct a lodestar cross-check.  The trial court also has the discretion, in the first instance, to determine which fee calculation methodology to use (i.e. common fund or lodestar-multiplier) in any particular case.  The decision has a useful discussion of the history and criticisms of each method. 

TYSON FOODS V. BOUAPHAKEO: HAS THE SKY FALLEN?

Earlier this year, statistics made headlines as the subject of a new Supreme Court decision, Tyson Foods, Inc. v. Bouaphakeo. As Jocelyn Larkin described in her earlier blog post, employees working in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa alleged that they had not been paid overtime for the time they spent putting on and taking off the protective gear required to do their dangerous jobs. At trial, the employees relied on “representative evidence” to prove liability – an observational study that resulted in an estimated average “donning and doffing” time for each department. A jury awarded the class of employees about $2.9 million in unpaid wages.

The Supreme Court accepted Tyson’s appeal and agreed to consider two questions:

Third Circuit Rules Plaintiff Must Have “a fair opportunity” to move for class cert

Good news for plaintiffs in a Third Circuit decision on mootness in a Rule 23(b)(2) injunctive relief class action, Richardson v. Bledsoe, No. 15-2876 (3d Cir. July 15, 2016). This case presents a variation of the Campbell-Ewald named plaintiff pick-off strategy in a systemic reform case.  It recognizes a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This one takes a bit of explaining.  

An Insider's Guide To The Impact Fund Class Action Training Institute

Last October, shortly after I joined the Impact Fund as its Litigation Fellow, I had the opportunity to attend the Impact Fund’s Training Institute in Chicago. Having had some exposure to class action litigation during my clerkship, but no experience actually litigating a class action, I had a lot to learn and was excited to dive in and learn as much as I could over the course of the training.

Cy Près 101

In modern litigation, the term “cy près” refers to the act of designating unclaimed class funds to public interest organizations whose work furthers the interests of the class and is tied to the purpose of the litigation. But the concept of cy près originated long ago in the law of charitable trusts in courts of equity. Today, cy près is generally used only after class funds have been distributed to class members, but it has become impossible or impracticable to distribute some remaining portion of the class funds, such as in the following situations:

Economic Justice: Resisting Zombie Claims by SSA

Imagine receiving a notice from the IRS that your long-awaited tax refund has been withheld by the Social Security Administration (“SSA”) because you were once paid Social Security benefits and SSA has identified a benefit overpayment that occurred over a decade ago — or one of your parents was once paid Social Security benefits on your behalf over a decade ago and SSA identified an overpayment. If the withheld amount was $2,100, would you go out and find an attorney to represent you in an individual case against the SSA?

Civil Rules Committee Takes On Serial Objectors with Proposed Rule 23 Changes

For 18 months, we have been tracking the work of the Advisory Committee on Civil Rules, and specifically its Rule 23 subcommittee, which has been evaluating a range of proposals to amend the federal class action rule.  That work was recently completed and the Committee will soon set a schedule for public comment on a series of draft amendments.

The good news is that the Rule 23 proposals are modest and are not likely to trigger significant opposition like the firestorm that accompanied the discovery rule changes. 

"Concrete" Still Not Set In Spokeo Decision

The Supreme Court yesterday decided the third of three class actions cases from this term that we have been closely watching, Spokeo Inc. v. Robins.   A few observations.

Phew!  The Court did not adopt the most extreme of defense arguments that Congress cannot authorize statutory damages where the victim cannot prove that he or she actually lost money as a result of corporate malfeasance.

Defending the use of Class Actions for Enforcement of Civil Rights Laws

It's a fact of life that long-awaited vacations can sometimes be spoiled by an ill-timed rain storm, lost luggage, or a bad reaction to that local street food.  But discrimination?

Plaintiffs Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie Reiskin use wheelchairs for mobility and were denied equal access to hotel transportation services at hotels owned by Defendant Hospitality Properties Trust (“HPT”). 

New Teeth For California's 'Suitable Seating' Law

On April 4, the California Supreme Court unanimously decided Kilby v. CVS, which adopted a very worker-friendly construction of the state’s century-old “suitable seating law,” and will help ensure that, going forward, seating cases will proceed under California's Private Attorney General Act (PAGA) on a broad class-wide or representative action basis.

Since 1911, California law has guaranteed seats to employees “when the nature of the work reasonably permits the use of seats” (although until 1973, only women were protected). 

Standing Up for the Full Promise of Equal Employment Opportunity

Victor Guerrero applied twice for employment as a Corrections Officer with the California Department of Corrections and Rehabilitation (“CDCR”). Both of his applications were subject to a multi-step review process, one step of which was a background investigation questionnaire.  Since 2009, the background investigation questionnaire has included the following question: “Have you ever had or used a social security number other than the one you used on this questionnaire?” This question, known as Question 75, exclusively eliminated Latino applicants—including Mr. Guerrero—from the review process. Mr. Guerrero filed suit, alleging Question 75 has a disparate impact on Latino applicants.

SCOTUS Denies Cert in Wal-Mart Stores v. Braun

On April 4, the U.S. Supreme Court denied cert in Wal-Mart Stores v. Braun, a wage and hour class action brought on behalf of 187,000 hourly Wal-Mart workers in Pennsylvania.  The case was tried in the Pennsylvania state court in 2006, and Michael Donovan and his team obtained a $188 million verdict for the workers. The heart of the appellate dispute was Wal-Mart’s decision to stop keeping records of wage and hour violations.