Duane Morris Class Action Review - 2023 - Report - Page 110
invoked when there are changes in circumstances that were beyond the defendants'
control and were not contemplated by the court or the parties when the consent decree
was entered. The court found that COVID-19 pandemic was not contemplated at the
time of the Settlement Agreement, and the change in fact and circumstances resulting
in the cancelled visits were beyond the parties' control. Further, COVID-19 materially
affected the plaintiffs' ability to monitor the defendants' compliance with the Settlement
Agreement as they could not participate in the crucial in-person visits and meetings,
without which they could not carry out their duties under the Settlement Agreement. For
these reasons, the court granted the plaintiffs’ motion to extend the consent decree by
one year.
J.
Civil Rights Class Actions Involving COVID-19
Litigation over COVID-19 regulations also promoted challenges in 2022 in civil rights
class actions.
Among the most significant is Georgia, et al. v. President Of The United States, 46 F.
4th 1283 (11th Cir. 2022), where the Eleventh Circuit affirmed the district court’s
decision that the plaintiffs – seven states with other interested party-intervenors – were
entitled to a preliminary injunction against the enforcement of the contractor COVID-19
vaccine mandate implemented pursuant to the Procurement Act because no statutory
provision contemplated the power to implement such a vaccination mandate. The
Eleventh Circuit determined the President of the United States likely exceeded his
authority under the Procurement Act when directing executive agencies to enforce the
mandate. Specifically, Executive Order 14042 directed executive agencies to include a
clause in procurement agreements requiring federal contractors to comply with
workplace safety rules including that employees be fully vaccinated against COVID-19,
the “contractor vaccine mandate.” Id. at 1289. In reviewing the district court’s decision
that a class-wide injunction was warranted under an abuse of discretion standard, the
Eleventh Circuit examined the authority vested in the President to carry out the
Procurement Act and determined it was confined to the Act itself and not unbounded,
and that action of the type undertaken would require specific congressional
authorization. Id. at 1293-95. Accordingly, the Eleventh Circuit reasoned that the most
important part of the analysis supporting a preliminary injunction – the likelihood of
success on the merits as to whether the President exceeded his authority – was met,
and a preliminary injunction was appropriate. Id. at 1301. However, the Eleventh Circuit
determined that the nationwide injunction should not extend as far as authorized since it
was unnecessary to provide relief in circumstances, for example, where no plaintiff
participated as a bidder. Id. at 1304. As such, the injunction went beyond the traditional
scope of providing relief to the extent necessary to protect the interests of the actual
parties. Id. The Eleventh Circuit therefore vacated the nationwide preliminary injunction
and held that the federal government was no longer enjoined in enforcing the mandate
in new and existing procurement contracts with non-parties. Id. at 1308.
Class-wide litigation involving COVID-19 regulations also spawned several procedural
rulings. Due to the passage of time, courts dealt with the concept of mootness and its
impact on the lawsuits. For example, in Pletcher, et al. v. Giant Eagle, Inc., Case No.
109
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Duane Morris Class Action Review – 2023
