By Gerald L. Maatman, Jr. and John S. Marrese

Seyfarth Synopsis:  In Love v. Wal-Mart Stores, Inc., No. 15-15260 (11th Cir. Aug. 3, 2017), the U.S. Court of Appeals for the Eleventh Circuit ruled that the deadline for putative class members to appeal the dismissal of class claims was triggered by the filing of a stipulation of dismissal by named plaintiffs and defendant.  The decision adds to the growing body of jurisprudence concerning the limits on the ability of absent class members to continue class litigation after named representatives abandon it.

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In Love v. Wal-Mart, No. 15-15260, 2017 U.S. App. LEXIS 14261 (11th Cir. Aug. 3, 2017), the Eleventh Circuit addressed the timeliness of putative class members’ appeal of the dismissal of class claims filed more than 30 days after the named class representatives and defendant filed a stipulation of dismissal.  Id. at *5.

Putative class members had moved to intervene in the district court not long after the stipulated dismissal was filed.  Id. at *4. On the same day their motion to intervene was denied, but 34 days after the filing of the stipulated dismissal, putative class members appealed the denial of the motion as well as the district court’s prior dismissal of the class claims.  Id. at *4.

The Eleventh Circuit held that the putative class members’ appeal was untimely pursuant to the 30-day deadline set forth in Rule 4 of the Federal Rules of Appellate Procedure (“FRAP”).  Id. at *9.  The Eleventh Circuit reasoned that a stipulated dismissal under Rule 41(a)(1)(A)(ii) is effective immediately upon filing, unless its effectiveness is conditioned on a subsequent occurrence. Id. at *6-7.  No such condition existed in the stipulated dismissal at hand and, as such, the putative class members’ appeal 34 days after the filing of the stipulated dismissal ran afoul of FRAP 4.

Case Background

After the U.S. Supreme Court reversed the certification of a nationwide gender discrimination class in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), some members of the putative class in that case filed new, regional class actions against Wal-Mart, including Love v. Wal-Mart Stores, Inc. Id. at *1-2.  Putative class members were able to do so because Wal-Mart Stores v. Dukes tolled the statute of limitations with respect to their filing claims with the EEOC, which is a prerequisite to filing a federal discrimination suit.  Id. at *3.  However, in the Eleventh Circuit, such tolling is limited to individual, not class, claims.  Id.

Accordingly, the district court in Love allowed the individual claims of named plaintiffs to proceed, but dismissed the class claims as untimely.  Id. The named plaintiffs subsequently settled their individual claims with Wal-Mart.  Id.

On October 16, 2015, the named plaintiffs and Wal-Mart filed a stipulation of voluntary dismissal under Rule 41(a)(1)(A)(ii).  Id. On October 23, 2015, the district court entered an order acknowledging the stipulated dismissal and dismissing pending motions as moot. Id.

On November 6, 2015, a group of putative class members moved to intervene in the district court solely to appeal the district court’s dismissal of the class claims.  Id. at *4.  On November 19, 2015, the district court denied the motion to intervene on the grounds that the stipulated dismissal stripped the district court of jurisdiction to hear the motion. Id.  That same day, 34 days after the filing of the stipulated dismissal, the putative class members appealed both the denial of their motion to intervene and the dismissal of the class claims.  Id.

The Decision

On appeal, the Eleventh Circuit ruled that it did not have jurisdiction over the putative class members’ appeal of the dismissal of the class claims because it was filed more than 30 days after the filing of the parties’ stipulated dismissal.  Id. 

In doing so, the Eleventh Circuit rejected the putative class members’ argument that only the named plaintiffs’ appeal deadline was triggered by the stipulated dismissal and that the putative class members’ deadline was not triggered until the district court’s subsequent order on October 23, 2015.  Id. at *4-6.  The Eleventh Circuit explained that “the plain language of Rule 41(a)(1)(A)(ii) requires that a stipulation filed pursuant to that subsection is self-executing and dismisses the case upon its becoming effective, i.e., upon filing unless it explicitly conditions its effectiveness on a subsequent occurrence.”  Id. at *6-7 (internal quotations and citations omitted).

Without any condition in the stipulation here, the Eleventh Circuit found that the stipulated dismissal was effective upon filing and triggered the putative class members’ 30-day deadline under FRAP 4 to appeal dismissal of the class claims.  Id. at *7.  The putative class members’ appeal, filed 34 days after the filing of the stipulated dismissal, was therefore untimely.  Id. at *8-9.

In turn, although the putative class members’ appeal of the denial of their motion to intervene was timely filed, such an appeal was moot as the putative members had intervened solely for the purpose of appealing the dismissal of the class claims.  Id. at *9.

Implication For Employers

This decision is a great victory for the employer. It also offers insight into how an employer can protect itself from continued class litigation after settling individually with named plaintiffs.

In particular, an employer should endeavor to file a stipulation of dismissal in short order because, in certain jurisdictions, the district court may find that the filing of such a stipulation precludes absent class members’ from intervening and pursing class litigation further.  Employers should also try to prevent the inclusion of conditions in stipulations of dismissal which delay the effectiveness of such stipulations.

Furthermore, given the application of FRAP 4 here, employers should anticipate receiving notices of appeal from absent class member-intervenors with, or soon after, the filing of their motion to intervene.

firefighter-920032_960_720By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis:  After the City of Jacksonville stopped following a class action consent decree that required it to hire a proportionate number of black and white firefighters, the U.S. Court of Appeal for the Eleventh Circuit affirmed the district court’s denial of the motion and dissolution of the consent decree on the grounds that the plaintiffs waiting fifteen years to bring their show cause motion.

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Following a class action lawsuit filed on behalf of all past, present and future black firefighters in in the City of Jacksonville, Florida (“the City”) in 1971, the U.S. District Court for the Middle District of Florida entered a consent decree that required the City to hire a proportionate number of black and white firefighters.  The consent decree was modified in 1982 and effective until 1992, when the City unilaterally and without legal authorization stopped following the decree.  Fifteen years later, in 2007, the plaintiffs brought a motion to show cause as to why the City should not be held in contempt for violation of the 1982 consent decree.  The district court denied the plaintiffs’ motion on grounds of laches, and dissolved the consent decree.  On appeal, in Coffey, et al. v. Braddy, et al., No. 15-11112 (11th Cir. Aug. 23, 2016), the Eleventh Circuit affirmed the district court’s order denying the plaintiffs’ motion to show cause and dissolving the consent decree.

This ruling illustrates that if an employer abandons its obligations under a consent decree, legal inaction by plaintiffs over a long period of time could potentially render the consent decree dissolved.

Case Background

In 1982, the district court modified a 1971 consent decree requiring the City of Jacksonville to hire in its fire department “an equal number of blacks and whites until the ratio of black fire fighters to white fire fighters reflects the ratio of black citizens to white citizens in the City of Jacksonville.”  Id. at 2.  The City complied for ten years until it unilaterally and without the district court’s approval stopped following the decree in 1992.  Id.  In 2007, fifteen years after the City had stopped complying with the consent decree, the plaintiffs brought a motion to show cause as to why the City should not be held in contempt for violation of the 1982 consent decree.

The district court denied the plaintiffs’ motion on grounds of laches and dissolved the decree.  Id. at 2-3.  Further, the district court explained that if the plaintiffs had sued in 1992 or the years immediately following, “the City would have had a lot of explaining to do.”  Id. at 10.  Citing incomplete memories, the fact that several key City personnel had passed away or moved, the spottiness of the paper trail, ambiguities in the documents that were in the record, and the fact that the City had been operating under a different hiring procedure since 1999, the district court concluded that the “plaintiffs[’] waiting until fifteen years later is simply too prejudicial to the City.”  Id.

In addition, the district court granted the City’s motion to dissolve the consent decree.  Id.  The district court refused to reinstate the consent decree as written because its racial quotas were not constitutional under the modern standard for affirmative action, and because adapting the 1982 decree to the new hiring practices that began in 1999 “could be problematic.”  Id.  The district court also cited a different successor lawsuit in support of its decision to decline to modify the consent decree.

The Decision

On appeal, the Eleventh Circuit affirmed the district court’s order denying the plaintiffs’ motion to show cause and dissolving the consent decree.  In support of its holding that the district court did not abuse its discretion in holding that laches barred the plaintiffs’ motion, the Eleventh Circuit noted that the plaintiffs’ fifteen-year delay in bringing their motion to show cause was not excusable and unduly prejudiced the City’s ability to defend itself.   Id. at 11.  The Eleventh Circuit instructed that to assert a successful defense of laches, a defendant must show a delay in asserting a right or claim, that the delay was not excusable, and that there was undue prejudice to the party against whom the claim is asserted.  Id.

The Eleventh Circuit held that the district court did not abuse its discretion in finding that the plaintiffs’ inexcusable delay unduly prejudiced the City’s ability to defend itself, because unclear memories and incomplete documents made it impossible to determine whether the City was, in fact, in contempt when it ended compliance in 1992.  The Court opined that due to “undeniable ambiguities in the record, the district court was well within its discretion in holding that the City was unduly prejudiced by the delay because the passage of time has made it impossible to make the required findings to determine whether or not the City was in contempt of the decree.”  Id. at 15.  The Court rejected the plaintiffs argument that the City was at fault for failing to maintain records that would show that the terms of the decree had been met, noting that plaintiffs  produced no evidence that the City destroyed the records in bad faith, and that “[u]ltimately, the fact that records were lost or destroyed in the interim fifteen years is more a product of the plaintiffs’ delay than of the City’s malfeasance.”  Id. at 17.

Finally, the Eleventh Circuit held that the district court’s dissolving of the consent decree (as opposed to leaving the decree in place or modifying the decree) was not an abuse of discretion.  The Court found that “the district court correctly reasoned that the consent decree as written could not be reinstated, because, as the Supreme Court has explained, ‘[a] consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law.’”  Id. at 20 (quoting Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 388 (1992)).  Finally, the Court found that it was in the public’s interest to allow a currently pending lawsuit regarding the same issue to address the situation.  Id.

Accordingly, because the plaintiffs’ fifteen-year delay prejudiced the City’s ability to defend itself and because a new lawsuit had taken up the cause of fighting racial discrimination in the City’s firefighting department, the Eleventh Circuit held that neither the district court’s application of laches nor its dissolution of the 1982 consent decree was an abuse of discretion.  Therefore, the Court affirmed the district court’s dissolution of the consent decree.

Implication For Employers

Employers should not view this ruling as a license to abandon their obligations under a consent decree that resolves a workplace class action.  Rather, this ruling serves as a wake-up call to plaintiffs who obtain consent decrees against employers for discriminatory practices, and thereafter sleep on the rights they expended resources to obtain.  Should an employer choose to abandon its duties under a consent decree, and the plaintiffs thereafter fail to address this abandonment for an extended period of time, employers can use this ruling to argue how such inactivity by the allegedly aggrieved plaintiffs nullifies the employer’s obligation to abide by the dated consent decree.

clockBy Pamela Q. Devata and Courtney S. Stieber

Defendants can add a new decision to their arsenal for defending against multiple proposed class actions on the same claims. The Eleventh Circuit recently issued a decision in Ewing Industries Corporation v. Bob Wines Nursery, Inc., et al., No. 14-13842 (11th Cir. Aug. 3, 2015), holding that a proposed class action does not toll the statute of limitations for future proposed class actions, even where the class claims fail for reasons which have nothing to do with the proposed class.

Though not a workplace class action, the teaching of the cases are important for all employers.

Background Of The Case

On January 12, 2010, Aero Financial, Inc. (“Aero”) filed a proposed class action in Florida state court against a Florida nursery for sending unsolicited facsimile advertisements to a putative class in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C), which carries a four year statute of limitations. The complained of conduct allegedly occurred in December 2006, about three and a half years before the commencement of the action.

On June 25, 2013, the Florida state court granted summary judgment for Defendants, finding Aero lacked standing to bring the claim because the faxes were not sent directly to Aero.  Because Aero lacked standing, the claims were rejected solely due to inadequate class representation, and not any defect in the proposed class itself.

On August 2, 2013, Ewing Industries Corporation (“Ewing”) filed a similar class complaint against the same defendants in federal court for the same alleged violations. While the complaint acknowledged that the statute of limitations had passed, Ewing  argued that the claims were tolled during the pendency of Aero’s proposed class action. On June 26, 2014, the District Court granted defendants’ motion to strike the class allegations on the grounds that the claims were time-barred and denied Ewing’s motion for class certification. Ewing appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

The Eleventh Circuit affirmed the District Court’s ruling. It relied heavily on a twenty-year old ruling in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994) (“Griffin II”), which established a no “piggy backing” rule to avoid class actions piggy backing “one after another in an attempt to find an adequate class representative.” Ewing, at 4. In Griffin II — an action consolidating appeals by the original proposed class representatives and other class members who subsequently filed and whose claims were denied as untimely — the Eleventh Circuit held that the statute of limitations was not tolled during the initial proposed class action, noting “the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original asserted class.” Id. at 359.

The plaintiffs in Ewing attempted to distinguish Griffin II, arguing that the class in Griffin II had failed due to defects in the proposed class, while the proposed class in Ewing failed only as a result of an inadequate class representative. The Eleventh Circuit rejected this distinction, noting instead that Griffin II was likewise concerned with “the potential for multiple rounds of litigation as the class seeks an adequate class representative.” Ewing, at 8. Consequently, the Eleventh Circuit held that even where “the original purported class action was dismissed due to the inadequacy of the class representative rather than a defect in the class itself,” the statute of limitations is not tolled for the later class action.

The Eleventh Circuit’s decision provides new ammunition to defendants faced with multiple proposed class actions for the same alleged misconduct. Breaking from prior interpretations of Griffin II by other circuit courts — including the Seventh, Sixth and Ninth Circuits, which have each previously distinguished Griffin II, finding the precedent did not apply to circumstances where the class failed due to inadequate representation — the Eleventh Circuit has added an additional defense against plaintiffs attempting multiple bites at the apple.

Implications For Employers

The Ewing decision encourages defendants to thoroughly vet the adequacy of named plaintiffs, particularly for causes of action with short statutes of limitation that may expire before a class certification determination is issued on the merits. Meanwhile the ruling certainly bolsters defendants’ abilities to defend proposed class claims on statute of limitations grounds.  However, the decision may also make it more difficult for the parties to reach agreement on bifurcated discovery, absent a willingness to enter a broad tolling agreement.

By Gerald L. Maatman, Jr., and Alexis P. Robertson

On December 1, 2014, in Stein v. Buccaneers Limited Partnership, No.13-15417 (11th Cir. Dec. 1, 2014), the Eleventh Circuit held that an unaccepted offer of judgment, made pursuant to Rule 68 of the Federal Rules of Civil Procedure, does not serve to moot a class action. Although not a workplace class action, the Eleventh Circuit’s decision is notable for all sorts of class action litigation.

Case Background

Six named plaintiffs filed a proposed class action against Buccaneer Limited Partnership (“BLP”). The complaint alleged that, in violation of the Telephone Consumer Protection Act, BLP sent unsolicited faxes to the named plaintiffs and more than 100,00 others.

The named plaintiffs sought to represent a nationwide class of recipients of the unsolicited faxes. The complaint demanded statutory damages of $500 per violation, trebled to $1,500 based on BLP’s willfulness, and an injunction against further violation.

BLP subsequently served each named plaintiff an offer of judgment under Rule 68. The offer provided payment for full relief to each plaintiff. After serving the offers of judgment, BLP moved to dismiss the complaint for lack of jurisdiction, asserting that the unaccepted Rule 68 offers rendered the case moot. A day after BLP filed their motion, plaintiffs moved to certify a class.  Plaintiffs’ motion was long before the deadline for filing such a motion. The District Court denied the motion to certify as premature.

The named plaintiffs did not accept the offers, and the deadline passed. The District Court subsequently entered an order ruling that the action was moot, granting the motion to dismiss, and directing the clerk to close the case. The named plaintiffs then filed an appeal.

The Decision Of The Eleventh Circuit

Applying a de novo standard of review, the Eleventh Circuit considered two questions – first, whether a plaintiff’s claim becomes moot when the plaintiff does not accept a Rule 68 offer judgment, that offered all the relief the plaintiff seeks; and second, if the answer to the prior question is yes, may the named plaintiff act as a class representative.

Effect On The Named Plaintiffs’ Claims

Regarding the survival of the plaintiffs’ claims after the offer of judgment, the Eleventh Circuit found that dismissing a case based on an unaccepted offer was inconsistent with Rule 68. The Eleventh Circuit reasoned that the offers had no effect on the Plaintiffs’ claims. After the expiration of the 14 days, the named plaintiffs could no longer accept the offers. Therefore, they still had their claims and BLP still had it defenses. As the Eleventh Circuit opined, “BLP had not paid the plaintiffs, was not obligated to pay the plaintiffs, and had not been enjoined from sending out more faxes. The named plaintiffs’ individual claims were not moot.” Id.at 5.

The Eleventh Circuit pointed out that this reasoning was consistent with the opinion of the dissent from the U.S. Supreme Court case of Genesis Healthcare Corp., v. Symcsyk, 133 S.Ct. 1523 (2012). In Symczvk, a collective action under the Fair Labor Standards Act, the parties stipulated that an unaccepted Rule 68 offer mooted the individual plaintiff’s claim. The majority accepted the stipulation without addressing the issues, but the four dissenters – the only four who have weighed in on the Rule 68 issue – remarked that an unaccepted offer of judgment could not moot a case. The dissent in Symczvk explained that, like any other unaccepted offer, an unaccepted settlement offer is a legal nullity with no operative affect.

The Eleventh Circuit concluded that this reasoning was further supported by the language contained in the offer itself, which made clear that it would have no effect unless accepted or in a proceeding to determine costs. Therefore, after the offer lapsed, the “legal relationship between BLP and the named plaintiffs was precisely the same as before the offers were made…The individual claims were not moot.” Id. at 10.

Effect On The Class Claims

The Eleventh Circuit next explained an alternative basis for its holding, which was that even if the individual claims were somehow deemed moot, the class claims remained live and the named plaintiffs retained the ability to pursue them.

Based on its precedent, the Eleventh Circuit reasoned that the case still presented a live controversy because a personal stake can be present even when the plaintiff’s own individual claim has become moot. This was exemplified in the various Supreme Court opinion addressing situations that were “capable of repetition, yet evading review.”  Id. at 13. The Eleventh Circuit found it immaterial that the offers were made prior to moving for class certification, explaining that if the individual claims become moot before the court can reasonably be expected to rule on a certification motion, the class certification relates back to the filing of the complaint, and not to the date of when the plaintiff moved to certify the class. “The relation-back doctrine allows a named plaintiff whose individual claims are moot to represent class members not because the named plaintiff has moved to certify a class but because the named plaintiff will adequately present the class claims and unless the named plaintiff is allowed to do so the class claims will be “capable of repetition, yet evading review.” Id. at 17.

Implications For Employers

Rule 68 offers of judgment are an important part of a class action defense tool box. They offer a method of short circuiting a class action at an early stage. Yet, as illustrated by this ruling, the efficacy of the Rule 68 offer is heavily dependent on whether such offer will serve to moot a class. With this ruling the Eleventh Circuit has joined the Third, Fifth, Ninth, and Tenth Circuits in holding that Rule 68 offers of full relief to the named plaintiff do not moot a class action. Employers and corporate counsel must remain aware of exactly when and where such an offer will be effective.

thCA2ZS0H7.jpgBy Chris Palamountain

The rising cost of health care has incentivized some employers to take a more proactive interest in the well-being of their employees. It is not at all unusual for employers to sponsor exercise or weight loss programs in an effort to support employees in developing healthy living habits.  Other companies have instituted broader “wellness” programs to help stabilize health care expenses for chronic conditions, such as diabetes and high blood pressure. Although the goals of these programs may be to improve the overall health of the workforce, they also pose legal pitfalls for the unwary. 

One potential pitfall is the Americans With Disabilities Act, which generally prohibits employers from requiring employees to undergo medical examinations or from making medical inquiries unless such investigations are job-related or a business necessity. 42 U.S.C. § 12112(a). As many “wellness” programs need information about an employee’s health status in order to direct them to the appropriate resources available under the program, employers have had to use surgical precision in developing effective programs that comply with the law. The Equal Employment Opportunity Commission (“EEOC”), charged with enforcement of the ADA in the workplace, complicated the picture further by issuing “informal” guidance stating that programs which include health questions or tests should be voluntary, meaning that the employer could neither require participation nor penalize employees who do not participate. EEOC Enforcement Guidance at n.78 (July 27, 2000). 

A recent decision from the Eleventh Circuit – entitled Seff v. Broward County, Florida, Case No. 11-12217, 2012 U.S. App. LEXIS 17501 (11th Cir. Aug. 20, 2012) – gave a wellness program affiliated with Broward County a clean bill of health, despite the fact that for a six-month period employees who did not participate in the program incurred a $20 charge on each of their bi-weekly paychecks. 

Broward County, Florida offered this wellness program as part of its 2009 open enrollment process. The wellness program was sponsored by the County’s group health insurer. The program included two components: (1)  a health questionnaire; and (2) a “biometric screening” in which the employee was subjected to a finger stick test for glucose and cholesterol. Information gathered from the questionnaire and finger stick were used to identify County employees with asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Those employees were then offered a disease management coaching program, which in turn could result in participants being offered appropriate medications at no additional cost. Participation in the wellness program was not a condition for enrollment in the County’s group health insurance plan. However, in 2010, to increase participation in the wellness program, the County imposed the $20 deduction. Id. at *2.

A former employee brought class action claims under the ADA, alleging that the wellness program violated the ADA’s prohibition on non-voluntary medical exams and health questions because the finger stick and questionnaire constituted the types of medical tests and health inquiries prohibited by the ADA. Id. at *3. The County filed a summary judgment motion, arguing that the wellness program fell within the “safe harbor” provisions of the ADA, which exempt certain insurance plans from the ADA’s general prohibitions on medical exams and health inquiries. Id. at *5 (citing 42 U.S.C. § 12201(c)(2)). More specifically, these safe harbor provisions state that the ADA “shall not be construed” as prohibiting a covered entity (in this instance, the employer) “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan.” Id. (emphasis added). The District Court found that the wellness plan sponsored by Broward County’s group health insurer was within the safe harbor and granted summary judgment in favor of the County. 

On appeal, Plaintiff raised only one challenge to the District Court’s decision; namely, that the District Court “improperly ignored the deposition testimony” of the County’s designated witness, who testified that the wellness program was not a “term” of the County’s benefit plan and was not “contained in Broward’s health and pharmacy plans.” Id. at *6. Notwithstanding this testimony, the Eleventh Circuit affirmed the District Court’s grant of summary judgment in favor of the County. Id. at *9. The Eleventh Circuit explained that, to the extent that the County’s designee’s testimony could be construed as amounting to a legal opinion or conclusion about the meaning of the word “term,” the witness had no authority to draw that conclusion because “the interpretation of a statute is a question of law for the court to decide.” Id. at *6-*7. Even if the designee’s testimony could be understood as “addressing an issue of fact regarding the contents of Broward’s plan documents,” Plaintiff’s challenge would still fail because Plaintiff identified no authority “suggesting that an employee wellness program must be explicitly identified in a benefit plan’s written documents to quality as a ‘term’ of the benefit plan” under the ADA’s safe harbor provisions. Id. at *8. The Eleventh Circuit concluded that “the district court did not err in finding as a matter of law that the employee wellness program was a ‘term’ of Broward’s group health insurance plan, such that the employee wellness program fell within the ADA’s safe harbor provision.” Id. at *8.