Duane Morris Class Action Review - 2023 - Report - Page 176
A.
Rulings Denying Class Certification Motions Based On Insufficient Proof
Employers defeated various class certification motions in 2022 by attacking the basis of
the motions as insufficient under Rule 23. Hornbook case law requires plaintiffs to
establish the elements underlying each aspect of Rule 23. This type of defense strategy
challenges the proof offered in support of the class certification motion.
The best example of this successful defense strategy is Savage, et al. v. City Of
Springfield, 2022 U.S. Dist. LEXIS 124587 (D. Mass. July 14, 2022). Plaintiffs, a group
of current and retired firefighters, filed a class action alleging that defendant
discriminated against Black and Hispanic firefighters by failing to enforce the City's
residency ordinance, which denied them promotional opportunities, and by maintaining
a racially hostile work environment in violation of Title VII of the Civil Rights Act.
Plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied
the motion. The court ruled that plaintiffs failed to offer sufficient evidence establishing
numerosity under Rule 23(a)(1). The court found that plaintiffs’ claim that their class
consisted of 50 putative class members had no support in the record. The court opined
that the figure of 50 class members was not established by any evidence, and plaintiffs
failed to offer any explanation as to how they arrived at the figure.
Similarly, in Cahill, et al. v. Nike, Inc., Case No. 18-CV-1477 (D. Ore. Nov. 23, 2022),
the plaintiffs filed a class action alleging that the defendant subjected female workers to
systemic discrimination and failed to promote them on the basis of their sex in violation
of the Equal Pay Act and state anti-discrimination laws. The plaintiffs filed a motion for
class certification pursuant to Rule 23, and the Magistrate Judge recommended that the
motion be denied. The plaintiffs contended that salaried female workers at the
defendant’s corporate headquarters were employed in lower positions, paid less than
male colleagues, and received disproportionate shares of annual performance bonuses.
The Magistrate Judge’s recommendation was filed under seal, and thus, the reasoning
behind the recommendation was not indicated. If the motion was approved, the case
would have proceeded on behalf of nearly 5,000 current and former female workers at
the company. The Magistrate Judge thereby recommended that the motion for class
certification be denied.
Likewise, in Brown, et al. v. Board Of Trustees Of The University Of Illinois, 2022 U.S.
Dist. LEXIS 222204 (C.D. Ill. Dec. 9, 2022), the plaintiffs, three Black employees who
currently work at the defendant's Urbana-Champaign campus (UIUC or the University),
filed a class action alleging that the defendant subjected them to discrimination on the
basis of their race in violation of Title VII of the Civil Rights Act. The plaintiffs filed a
motion for class certification pursuant to Rule 23, and the court denied the motion. The
plaintiffs contended that the defendant’s Non-discrimination Policy (NDP) was
discriminatory, and that the University's Office of Access and Equity (OAE) engaged in a
pattern or practice of discrimination by systematically failing to promptly investigation
race-based misconduct allegations. Id. at *2. The plaintiffs sought certification of a class
consisting of all non-supervisory Black and/or African-American employees at the UIUC
since 2014. The court evaluated whether the plaintiffs submitted sufficient evidence to
conclude that the defendant engaged in systemic Title VII violations or enforced an
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Duane Morris Class Action Review – 2023
