Duane Morris Class Action Review - 2023 - Report - Page 177
illegal policy. Id. at *7. The court explained that to prevail on their theory, the plaintiffs
must “prove that discrimination 'was the company's standard operating procedure — the
regular rather than the unusual practice.'" Id. at *9. The court determined that the
plaintiffs’ claims failed to meet the commonality requirement of Rule 23(a) because
even if the plaintiffs correctly alleged that the NDP and its complaint procedure were
problematic, it did not follow that anyone actually suffered a Title VII violation. The court
held that by challenging the NDP and its complaint procedure, the plaintiffs were
effectively challenging the first element of the defendant's affirmative defense, and not
asserting a claim cognizable under Title VII. Id. at *11. Thus, the court opined that since
the NDP and the complaint procedure were not in violation of Title VII, the plaintiffs
lacked any common questions of prima facie claims under Title VII. The court also
determined that the plaintiffs’ claims were not typical to those of the putative class
because their complaints represented only five of the approximately 60 NDP complaints
asserting race-based misconduct evaluated by the OAE during the class period. The
court stated that the claims of putative class members could range from those who had
no experiences of racial discrimination to those who, like the plaintiffs alleged, both
experienced discrimination and reported it to the OAE. For these reasons, the court
ruled that the plaintiffs’ claims were not typical to those of the proposed class members.
The court thereby denied the plaintiffs’ motion for class certification.
Finally, in Koehler, et al. v. Infosys Technologies Limited Inc., 2022 U.S. Dist. LEXIS
165646 (E.D. Wis. Sept. 14, 2022), the plaintiffs alleged that the defendant subjected
applications and employees to discrimination on the basis of their Caucasian race and
their American national origin and provided preferential treatment to those of South
Asian race and Indian national origin. In support of their motion for class certification,
the plaintiffs relied on an expert report that analyzed data using name recognition to
categorize individuals as of South Asian race or national origin. The defendant moved to
exclude this expert testimony on the grounds that the methodology used in the expert
report was not sound. The court granted the motion. The court ruled that the expert’s
methodology for identifying the race and national origin of incumbent employees and
applicants was unreliable. The court therefore granted the defendant’s motion to
exclude the plaintiffs’ expert report. The court also denied plaintiffs’ motion for class
certification given the motion was premised on the analysis provided by the expert
report.
B.
Preemptive Motions To Strike And Dismiss Class Action Claims On The
Face Of The Pleadings
In certain instances, defendants also derailed class actions at the pleadings stage by
attacking the sufficiency of the class claims on the face of the complaint. As a strategy
that asserts a preemptive strike attack on a class action, it requires the defendant to
show that no amount of discovery will change the conclusion that plaintiffs’ class
certification theories are fundamentally flawed. The pay-off in a successful motion is
often significant. It has the potential to eliminate the class claims, which also avoids the
costs of class-wide discovery if the case proceeds forward as a single plaintiff claim.
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Duane Morris Class Action Review – 2023
