By: Gerald L. Maatman, Jr.Christopher J. DeGroff, Matthew J. Gagnon, and Kyla Miller

Seyfarth Synopsis: On November 15, 2017, the EEOC released its annual Performance and Accountability Report for Fiscal Year 2017 – its internal “report card” for its fiscal year 2017. The report touts the EEOC’s progress in reducing charge inventory, as well as the increased number of merits lawsuits that were filed by the EEOC over last fiscal year. The report notes that those filings more than doubled over FY 2016.

On November 15, 2017, the EEOC released its annual Performance and Accountability Report (“PAR”). (The PAR is available on the EEOC’s website — here.) The PAR reports on the agency’s progress during FY 2017 – from October 1, 2016 through September 30, 2017 – in meeting the goals and enforcing the strategic priorities outlined in its Strategic Enforcement Plan. The major takeaways from this year’s PAR are the substantial reduction in the EEOC’s charge inventory, as well as the considerable increase in the number of lawsuits that the Commission filed against private employers. The PAR also reports notable increases in systemic investigations and monetary recovery from resolutions of systemic investigations.

Huge Increases In Merits And Systemic Lawsuits

The EEOC filed 184 merits lawsuits in FY 2017. This is more than double the 86 merits lawsuits that were filed in FY 2016. The PAR reports that 124 of those lawsuits were on behalf of individuals, 30 were non-systemic suits with multiple victims, and another 30 were systemic claims. The EEOC labels a case “systemic” if it “has a broad impact on an industry, company or geographic area.” The EEOC also filed 18 subpoena enforcement actions in FY 2017.

The 30 systemic lawsuits represent a sizeable jump over prior years (30 in FY 2017, compared to just 18 in FY 2016 and 16 in FY 2015). Although this may seem like an alarming increase, compared to the total number of filings, systemic lawsuits actually account for a smaller percentage of filings compared to last year (16% of all merits lawsuits in FY 2017 vs. 20% in FY 2016).

The PAR notes that the EEOC’s field offices resolved 329 systemic investigations and collected $38.4 million in remedies (compared to 273 and $20.5 million in FY 2016). This is a near record for monetary relief for systemic cases. The EEOC also issued cause determinations finding discrimination in 167 systemic investigations (compared to 113 in FY 2016). Consequently, not only did the EEOC resolve markedly more systemic investigations compared to FY 2016, but also it also made considerably more cause determinations that it converted to beefed-up recoveries for claimants compared to last year.

Whether the Commission continues on this pace in 2018 is an open question. Change is coming, as two new Commissioners appointed by President Trump are waiting in the wings for Senate confirmation. Presumably, the EEOC also will get a new general counsel by 2018, and the impact these changes may have on the pace of litigation and the types of cases brought by the EEOC are open questions.

Bulldozing The Backlog Of Pending Charges

The EEOC also pats itself on the back for reducing the large charge backload that has bogged down the agency for years. The current EEOC Acting Chair, Victoria Lipnic, stated: “[t]he pending inventory of private sector charges (the backlog) has been a longstanding issue for the EEOC and the public it serves. Early in the calendar year, we made addressing the backlog a priority.” The PAR shows that the EEOC did so.

In FY 2017, the EEOC resolved 99,109 charges, a marked increase over the past two years. In fiscal years 2016 and 2015, the EEOC resolved 97,443 and 91,503 charges respectively. As a result, the EEOC decreased its charge inventory by 16.2%, to 61,621. This is the lowest level of inventory in 10 years and represents a significant reduction compared to FY 2016, where the EEOC only reduced its outstanding charges by 3.8%. The PAR credits the EEOC’s renewed emphasis on inventory reduction strategies and priority charge handling procedures, technological enhancement, and front-line staff hired in FY 2016. The EEOC also noted that it responded to over 540,000 calls to its toll-free number and 155,000 inquiries to field offices – on par with last year’s numbers of 585,000 and 160,000 respectively.

Settlements: Keeping It Consistent

The EEOC secured approximately $484 million in total relief in FY 2017. This tracks close last year’s total relief of $482.1 million. It also includes $355.6 million obtained through mediation, conciliation, and settlement for victims of discrimination in private, state and local government, and federal workplaces. That number is marginally up from last year, which saw $347.9 million in recoveries.

Litigation recoveries, on the other hand, have been steadily declining in the past few years, hitting only $42.4 million in 2017. This is markedly lower than FY 2016 and FY 2015, which saw the EEOC obtain $52.2 million and $65.3 million in litigation recovery respectively.

Implications For Employers

In her opening remarks in this year’s PAR, Acting Chair Victoria Lipnic called FY 2017 “a year of transition” due to the change in administration. The PAR gives few other clues as to what that transition looks like from inside the agency, or how the EEOC is adapting to its new political environment. About the only thing U.S. employers can be sure of is that the EEOC is not laying down its enforcement weapons. It may be no coincidence that litigation activity is increasing at the same time that litigation recoveries are going down. The EEOC may be trying to boost its recovery numbers for FY 2018, and it may be mining its backlog of charges to help it do so. Clearly the EEOC is trying to make its mark by doubling the number of lawsuits it filed over last year. Whether those lawsuits will be successful or not remains to be seen.

Seyfarth Synopsis: Blog readers will recall our Vlog in early October recapping the EEOC’s 2017 Fiscal Year.  Today, Jerry Maatman of Seyfarth Shaw, LLP discusses recent developments from the EEOC that ought to be “required reading” for employers.  Specifically, Jerry analyzes the agency’s new technological initiatives, end-of-year litigation statistics, and the line of high-ranking officials awaiting appointment.  Lastly, he gives his predictions for the EEOC’s priorities during FY 2018.


As we detailed in our September 30 blog post, the EEOC filed 184 merit lawsuits in FY 2017, more than doubling last year’s total.  According to the Commission’s press release on November 9, 2017, an increase in filings was not the only highlight of this Fiscal Year.  The EEOC also recovered $484 million for workers in FY 2017, as well as decreased its number of pending cases to the agency’s lowest backlog in 10 years (see here).

Since the end of the Fiscal Year, the EEOC also rolled out an online portal allowing individuals to take the first steps in filing a charge of workplace discrimination.  In the words of Acting Chair Vicki Lipnic, “It’s a giant leap forward for the EEOC in providing online services.”  Other important news coming out of the Commission regards newly appointed high-level employees, as well as the upcoming Senate vote on Trump’s two appointees to lead the EEOC.

For those interested in a complete analysis of 2017 EEOC Fiscal Year, stay tuned for the publication of Seyfarth Shaw’s annual EEOC-Initiated Litigation Report coming out at the end of December.  In terms of the future, as Jerry states in the video, “put on your seat belts…I think it will be a very interesting next 12 months for the EEOC.”

Seyfarth Synopsis: In early September of 2017, Judge Richard Posner announced his retirement from the U.S. Court of Appeals for the Seventh Circuit, a position he had held since his appointment by President Reagan in 1981.  Judge Posner served as Chief Judge of the Seventh Circuit from 1993-2000. Scholars and commentators agree that Judge Posner wrote some of the most influential legal decisions of the past 50 years.  In this video, Partner Jennifer Riley discusses the accomplished career of Justice Posner with esteemed class action litigator Jerry Maatman.  In particular, they highlight the class action legacy in Judge Posner’s opinions.



Prior to his retirement this Fall, Judge Posner was one of the most well-known U.S. Appellate Court justices in recent history.  He is held in high regard in the fields of law and economics, and is famous for his writings on topics such as contract law, civil rights, antitrust laws, workplace rights, and federal jurisprudence.  An author of over 40 books, Judge Posner was cited as often as any federal judge in the U.S.

In terms of class actions, Judge Posner wrote a number of famous opinions regarding the interpretation of Rule 23.  These decisions include cases such as Thorogood v. Sears, Roebuck & Co., In Re Walgreen Co. Stockholder Litigation, and Eubank, et al. v. Pella Corp.  Though the Seventh Circuit often has been regarded as a fairly conservative jurisdiction, its track record has been somewhat “certification friendly”  in terms of Rule 23 issues while Judge Posner was active.  His focus on protecting the participants in a class action and his exacting scrutiny over settlements are cemented in his legacy on the bench.  As Jerry emphasizes in the video, whether or not legal professionals agree with Judge Posner’s class action interpretations, they must certainly take account of his positions on Rule 23 issues.

Thank you to our Partners Jennifer Riley and Jerry Maatman for participating in yet another interesting vlog.  Readers of the blog know to stay tuned, as we will continue to produce content on the hottest legal issues!

Seyfarth Synopsis: On October 5, 2017, U.S. Attorney General Jeff Sessions issued an agency memorandum stating that the language contained in Title VII of the Civil Rights Act of 1964, “does not prohibit discrimination based on gender identity per se, including transgender status.” It represented a head-snapping pivot of the position of the U.S. Department of Justice. In this video, Jerry Maatman of Seyfarth Shaw, LLP gives blog readers an overview of the recent history regarding legal interpretation of Title VII. Jerry discusses potentially conflicting statutes and court rulings, as well as the ways in which this Department of Justice memorandum could affect businesses and those who litigate under Title VII.


Title VII of the Civil Rights Act of 1964 has been a prevalent federal statute since its passage over 50 years ago. Therefore, it is an especially important statute to understand for nearly every employer. During the Obama Administration, Attorney General Eric Holder stated in a 2014 memorandum that the Department of Justice does, in fact, apply the concept of sex discrimination in the workplace to transgender workers. However, Congress has rejected all attempts thus far to amend Title VII. To that end, the language of the law leaves legal interpretation open for debate.

The EEOC’s current view of Title VII is that it includes protections for transgender workers. In addition, 20 states and the District of Columbia include both sexual orientation and gender identity as protected categories under their discrimination statutes. The recent statement by the Department of Justice has renewed the widespread debate over the definition of sex discrimination, a dispute which we suspect will not end any time soon. Make sure to stay tuned to our blog and Twitter account for updates and insights on this important legal issue!

Seyfarth Synopsis: With the EEOC’s Fiscal Year ending on September 30, 2017, loyal blog readers know that our firm has been busy analyzing the major trends of FY 2017 on the EEOC litigation front. In this video, Jerry Maatman of Seyfarth Shaw, LLP provides an overview of the highlights from the EEOC’s “litigation scorecard” for the 2017 Fiscal Year. Jerry touches on this year’s overall filing trends, tracks the importance of Equal Pay claims filed, and lastly, gives our readers some ideas on possible implications for the future of the EEOC. Remember, if you are interested in the filing trends of the EEOC or in complex discrimination law in general, stay tuned for our full analysis of the 2017 EEOC Fiscal Year that comes out in late December.


2017 was a very interesting Fiscal Year for the EEOC. Though many predicted that EEOC filings would decrease in 2017 with the arrival of the Trump Administration, numbers were up by more than 50 filings in comparison to 2016. In fact, the month of September saw 88 filings alone, including 21 in the final 48 hours. Equal Pay claims were no exception to this trend. As Acting EEOC Chair Vicki Lipnic predicted during her presentation at Seyfarth Shaw in February 2017, the EEOC committed to focusing on Equal Pay Act filings. 11 of this year’s 184 merit filings involved Equal Pay claims, which nearly doubled last year’s total.

In terms of the future, the changes brought by the Trump Administration are still in the process of working themselves down into the rank and file of many federal agencies. As is emphasized above, EEOC filing numbers climbed back to numbers from past years. Changes in top personnel will have an impact on how the EEOC pursues its enforcement agenda – although exactly what that impact will be remains to be seen.

Loyal blog readers should stay tuned for our continued analysis of FY 2017 EEOC filings, and our thoughts about what employers should keep an eye on as we enter FY 2018. We look forward to keeping you in the loop all year long!



By Matthew J. GagnonChristopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With uncertain times and profound changes anticipated for the EEOC, employers anxiously await what enforcement litigation the EEOC has in store. Although 2016 showed a marked decline in filings, fiscal year 2017 shows a return to vigorous enforcement filings, with a substantial number of filings in the waning days of the fiscal year.

Employers are living in uncertain times. The impact of a Trump Administration and the EEOC’s new Strategic Enforcement Plan (SEP) for fiscal years 2017-2021 are still working themselves out in the FY 2017 filing trends. Nonetheless, one trend has reemerged: a vigorous number of EEOC case filings. It looks like the anemic numbers of FY 2016 were just a bump in the road, as FY 2017 has revealed an increase in total filings, even eclipsing the numbers from FY 2015 and 2014. (Compare here to here and here.) This year, the EEOC filed 202 actions, 184 merits lawsuits and 18 subpoena enforcement actions.

The September filing frenzy is still an EEOC way-of-life, as this past month yet again holds the title for most filings compared to any other month. At the time of publication, 88 lawsuits were filed in September, including 21 in the last two days alone. In fact, the EEOC filed more cases in the last three months of FY 2017 than it did during all of FY 2016. The total number of filings for the remaining months remains consistent with prior years, including a noticeable ramp up period boasting double digit numbers through the summer.

Filings out of the Chicago district office were back up in FY 2017 after an uncharacteristic decline to just 7 total filings in 2016. This year, Chicago hit 21 filings, an enormous increase from last year. This is closer to the total number of Chicago filings in FY 2015 and 2014 (26 in each year). The Los Angeles district office also increased its filings, hitting a high of 22, a substantial jump compared to previous years and the most of any district office in FY 2017. On the other end of the spectrum, the Phoenix district office has seen a notable drop, with only 7 filings compared to 17 in FY 2016.

New SEP, Same Focus

Every year we analyze what the EEOC says about its substantive focus as a way to understand what conduct it is targeting. This year, Title VII takes center stage. Although Title VII has consistently been the largest category of filings, last year showed a dip in the percentage of filings alleging Title VII violations, at only 41%. Nonetheless, this year Title VII has regained its previous proportion, accounting for 53% of all filings. This is on par with FY 2015 and 2014, showing once again that FY 2016 seems to have been an outlier.

Although the 2017-2021 SEP outlined the same general enforcement priorities as the previous version of the SEP (covering FY 2012 to 2016), the new SEP added “backlash discrimination” towards individuals of Muslin/Sikh/Arab/Middle Eastern/South Asian communities as an additional focus. One would expect this focus might increase the number of Title VII claims alleging either religious, racial, or national origin discrimination. However, those filings stayed relatively even, and were even a bit down from previous years. Religious, national origin, and race discrimination claims made up 42% of all Title VII claims, compared to 50% in 2016 and 46% in 2015.

Uncertainty For Equal Pay Claims

With a new administration came a new Acting Chair for the EEOC. President Trump appointed Victoria Lipnic as Acting Chair on January 25, 2017. Employers expected the EEOC’s new leader to steer the EEOC’s agenda in a different direction. Some believed Lipnic was foreshadowing future trends when she made it clear at her first public appearance – hosted by none other than Seyfarth Shaw – that she is “very interested in equal pay issues.” (See here.) And indeed, we have seen a slight uptick in the number of EPA claims filed in FY 2017. In FY 2017, The EEOC filed 11 EPA claims, compared to 6 in 2016, 5 in 2015, and 2 in 2014.

However, on June 28, 2017, President Trump tapped Janet Dhillon as Chair of the EEOC. Dhillon would come to the EEOC with extensive experience in a big law firm and as the lead lawyer at three large corporations, US Airways, J.C. Penney, and Burlington Stores Inc. Although it is too early to know how she could change the direction of the agency if confirmed, it is entirely possible that she could back away from previous goals to pursue equal pay claims more aggressively.

The Trump Administration has also made other moves that may indicate a change in direction with respect to equal pay initiatives. On February 1, 2016, the EEOC proposed changes to the EEO-1 report that would require all employers with more than 100 employees to submit more detailed compensation data to the EEOC, including information regarding total compensation and total hours worked by race, ethnicity, and gender. This was a change from the previous EEO-1 report, which only required employers to report on employee gender and ethnicity in relation to job titles. However, on August 29, 2017, the new EEO-1 reporting requirements were indefinitely suspended. We will have to wait and see whether the slight uptick in EPA claims in FY 2017 was a one-year anomaly.

Implications For Employers

The changes brought by the Trump Administration are still in the process of working themselves down into the rank and file of many federal agencies. The EEOC is no exception. Despite all of the unrest and uncertainty about where the EEOC may be headed, the FY 2017 filing trends largely show a return to previous years, albeit with a slight uptick in EPA claims. Certainly, changes in top personnel will have an impact on how the EEOC pursues its enforcement agenda. Exactly what that impact will be remains to be seen.

Loyal readers know that this post is merely a prelude to our full analysis of trends and developments affecting EEOC litigation, which will be published at the end of the calendar year. Stay tuned for our continued analysis of FY 2017 EEOC filings, and our thoughts about what employers should keep an eye on as we enter FY 2018. We look forward to keeping you in the loop all year long!

Readers can also find this post on our EEOC Countdown blog here.

By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis:  In the latest chapter of the ongoing legal battle between the EEOC and delivery company CRST Van Expedited regarding the agency’s sexual harassment claims, a federal district court ordered the EEOC to pay $1.9 million in attorneys’ fees to the company for pursuing claims that it knew or should have known were frivolous.

Employers should have this ruling handy when challenging whether the EEOC fulfilled its pre-suit obligations under Title VII. It is undoubtedly a signal ruling relative to the agency’s missteps in “suing now and aiming later…”


In a long and winding legal journey that made a pit stop at the U.S. Supreme Court, the EEOC v. v. CRST Van Expedited, Inc., No. 07-CV-95, 2017 LEXIS 155134 (N.D. Iowa Sept. 22, 2017),  litigation involves the largest fee sanction award ever levied against the EEOC – nearly $4.7 million. In August 2013, after the U.S. District Court for the Northern District of Iowa imposed the nearly $4.7 million award, the EEOC appealed, and the Eighth Circuit reversed and remanded several fee issues for further proceedings.  Id. at *2.  Following CRST’s appeal, the U.S. Supreme Court reversed and remanded the Eighth Circuit’s ruling.  On remand, the Eighth Circuit vacated its prior judgment and remanded back to the District Court.  Thereafter, CRST moved for a supplemental fee award in the amount of approximately $975,000, consisting of attorneys’ fees for work performed in the case following the District Court’s August 1, 2013 Order.  Judge Linda R. Reade of the U.S. District Court for the Northern District of Iowa ordered the EEOC to pay approximately $1.9 million in attorneys’ fees, out-of-pocket expenses and taxable costs to CRST, but denied CRST’s motion for a supplemental fee award.

For employers embroiled in EEOC litigation, the $1.9 million fee award is an exceedingly important example of a court holding the Commission accountable when it fails to satisfy its pre-suit investigation duties under Title VII.

Case Background

As we discussed in our blog post here, Section 706(k) authorizes district courts to award attorneys’ fees to the “prevailing party” in a Title VII case.  In relevant part, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) held that fee awards to a prevailing defendant are permissible only if the plaintiff’s lawsuit was “frivolous, unreasonable, or without foundation.”  After CRST successfully obtained the dismissal of the EEOC’s Title VII claims for sexual harassment, the District Court granted CRST’s motion for an award of attorneys’ fees and costs and directed the EEOC to pay CRST nearly $4.7 million, finding that the EEOC’s actions in pursuing this lawsuit were unreasonable, contrary to the procedure outlined by Title VII, and imposed an unnecessary burden on both CRST and the District Court.

After the EEOC appealed, the Eighth Circuit reversed and held that the District Court “did not make particularized findings of frivolousness, unreasonableness, or groundlessness as to each individual claim” and remanded these claims to the District Court to make such individualized determinations.  Further, the Eighth Circuit found that the District Court’s dismissal of 67 claims based on the EEOC’s failure to satisfy Title VII’s pre-suit obligations did not constitute a ruling on the merits, and that therefore, CRST was not a prevailing party as to these claims.  The Eighth Circuit also held that CRST could not satisfy the Christianburg standard for the same reason: “[P]roof that a plaintiff’s case is frivolous, unreasonable, or groundless is not possible without a judicial determination of the plaintiff’s case on the merits.”  Thereafter, following CRST’s petition for certiorari, the U.S. Supreme Court accepted the case for review.

The U.S. Supreme Court reversed the Eighth Circuit and remanded the case for further proceedings.  Id. at *5.  On June 28, 2016, the Eighth Circuit entered a judgment vacating its prior panel opinion and remanding to the District Court for further proceedings.  The District Court ordered briefing on the issues remanded by the U.S. Supreme Court, where CRST requested an additional a supplemental fee award in the amount of approximately $975,000, consisting of attorneys’ fees for work performed in the case following the District Court’s August 1, 2013 Order.

The Court’s Decision

On September 22, 2017, the District Court awarded nearly $1.9 million in attorneys’ fees, out-of-pocket expenses and taxable costs to CRST, but denied CRST’s motion for a supplemental fee award.  In ordering the $1.9 million award, the District Court found that CRST was the prevailing party as to the sixty-seven claims at issue, that the sixty-seven claims met the standard announced in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and made individualized findings as to seventy-eight of the individual claimants for which the court granted CRST summary judgment.  Id. at *5-6.

CRST had moved for a supplemental fee award of $975,000 for the following work it performed: (1) briefs, oral argument, and rehearing petition in the EEOC’s appeal to the Eighth Circuit from the August 1, 2013 Order; (2) CRST’s petition for certiorari, briefs, and oral argument in the Supreme Court resulting in reversal of the Eighth Circuit’s opinion vacating the August 1, 2013 fee award; (3) CRST’s brief  resisting the Rule 60(b) Motion; and (4) CRST’s briefs on remand as required by the Eighth Circuit’s now vacated decision with respect to the fees awarded for claims dismissed on summary judgment.  Id. at *6-7.  The EEOC argued that CRST’s application for fees was untimely and that CRST could not demonstrate that any of the actions that the EEOC took with respect to the requested categories of fees were frivolous, unreasonable or groundless.  The EEOC further argued that the fees sought by CRST were unreasonable.

Regarding timeliness, the District Court accepted the EEOC’s argument and held that CRST’s motion for a supplemental fee award was filed more than 120 days after the latest final judgment for which CRST requests attorneys’ fees.  Regarding the EEOC’s argument that the fees sought by CRST were unreasonable, the District Court similarly found in favor of the EEOC, noting that neither its appeal of the District Court’s fee award to the Eighth Circuit nor CRST’s appeal to the Supreme Court were amenable to fees.  Id. at *12-13.  Accordingly, the District Court denied CRST’s motion for a supplemental fee award.

Implications For Employers

Although the formerly $4.7 million fee sanction against the EEOC was reduced to $1.9 million, this is nonetheless a major victory for employers.  This ruling will serve as a cautionary tale for the EEOC when it attempts to speed through its mandatory pre-suit duties in rushes to the courthouse to litigate claims.  For employers who are blindsided by such EEOC tactics, this ruling can be used as precedent to hold the Commission accountable when it abandons its pre-suit duties required under Title VII.

Readers can also find this blog post on our EEOC Countdown Blog here.

By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth SynopsisAfter a federal district court dismissed the EEOC’s unlawful-interference claim against a private college that had sued a former employee for allegedly breaching a settlement agreement by filing an EEOC charge, the Tenth Circuit reversed the dismissal of the EEOC’s unlawful-interference claim, citing the employer’s introduction of a new case theory relative to the EEOC’s still-pending retaliation claim.

This ruling serves a cautionary tale for employers regarding the timing of their assertion of new case theories in EEOC litigation involving multiple claims.


After CollegeAmerica resolved a dispute with a former employee by entering into a settlement agreement, upon belief that the employee breached the settlement agreement, CollegeAmerica sued the employee in state court.  Id. at *1-2.  Thereafter, the EEOC sued CollegeAmerica in federal court alleging that CollegeAmerica’s interpretation and enforcement of the settlement agreement was unlawfully interfering with statutory rights of the former employee and the EEOC.  Following the U.S. District Court for the District of Colorado’s dismissal of the EEOC’s claim for unlawful-interference with statutory rights, on appeal in EEOC v. CollegeAmerica Denver Inc., No. 16-1340, 2017 U.S. App. LEXIS 17094 (10th Cir. Sept. 5, 2017), the Tenth Circuit reversed the dismissal, holding that the EEOC’s unlawful-interference claim should not have been dismissed as moot in light of a new theory asserted by CollegeAmerica prior to its trial regarding the EEOC’s pending retaliation claim.

Employers should keep this ruling in mind when preparing trial theories that may have implications on claims that had previously been dismissed as moot.

Case Background

The EEOC brought a claim for unlawful-interference with statutory rights, which the District Court ultimately dismissed as moot.  Regarding the EEOC’s retaliation claim, which remained for trial, CollegeAmerica presented a new theory against the employee: that she had breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica.  In response, the EEOC argued that by presenting this new theory, CollegeAmerica was continuing to interfere with the statutory rights of the former employee and the EEOC.  As such, the EEOC appealed the dismissal of its unlawful-interference claim, arguing that the claim was no longer moot in light of CollegeAmerica’s new theory.

The Tenth Circuit’s Decision

The Tenth Circuit reversed the dismissal of the of the EEOC’s unlawful-interference claim.  First, the Court instructed that in determining whether a claim is moot, a special rule applies when the defendant voluntarily stops the challenged conduct.  Id. at *4-5.  When the conduct stops, the claim will be deemed moot only if two conditions exist: (1) it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.  In arguing that the case was moot, CollegeAmerica submitted two declarations from its general counsel assuring that CollegeAmerica would not take the “positions known to trouble the EEOC.”  Id. at *6.  In response, the EEOC argued that the declarations should not be relied upon since CollegeAmerica presented a new theory after the filing of the declarations–that the employee had breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica–an argument that continued CollegeAmerica’s unlawful interference with statutory rights.  The Tenth Circuit held that because CollegeAmerica planned to present its new theory in its state court suit, the potential for CollegeAmerica to repeat its allegedly wrongful behavior remained, and CollegeAmerica thus did not satisfy its burden of demonstrating the absence of a potential for reoccurrence.  Id.

Next, the Tenth Circuit rejected CollegeAmerica’s argument that the case was moot because the outcome “would not affect anything in the real world.”   Id. at *7.  The Tenth Circuit noted that in its state court suit, CollegeAmerica planned to argue that the employee breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica. The EEOC alleged that this argument would constitute unlawful-interference with the employee’s rights, and thus sought a permanent injunction prohibiting CollegeAmerica from unlawfully interfering with the statutory rights of the employee and the EEOC.  The Tenth Circuit accepted the EEOC’s argument, holding that if the EEOC prevailed on the merits and obtained an injunction, CollegeAmerica could not present its new theory in the state court suit against the employee, which “would constitute an effect in the real world.”  Id.

Finally, the Tenth Circuit declined to consider CollegeAmerica’s argument that the EEOC’s unlawful-interference claim brought under 29 U.S.C § 626(f)(4) failed as a matter of law since it could not be used as an affirmative cause of action, noting the District Court had not yet ruled on the issue and therefore it was to consider that issue on remand.  Id. at *7-8.  The Tenth Circuit also refused to consider CollegeAmerica’s argument that the EEOC sought overly broad, unauthorized injunctive and declaratory relief, explaining it would not consider this issue since it was raised on appeal for the first time.  Accordingly, the Tenth Circuit reversed and remanded the District Court’s dismissal of the EEOC’s unlawful-interference claim.

Implications For Employers

For employers facing litigation, this ruling provides an important lesson: when considering the defense of one claim, it is imperative to be cognizant of how that argument can impact the defense of another claim, even if the other claim has been dismissed.  Further, this decision illustrates the EEOC’s willingness to combat employers who bring causes of action against former employees who may have breached settlement agreements by asserting discrimination claims.  As such, employers should be cautious when suing former employees who later file EEOC charges, and must exercise further caution when considering how their strategies to defend one claim may affect another.

Readers can also find this blog post on our EEOC Countdown Blog here.

Seyfarth Synopsis: The plaintiffs’ bar has recently brought a flurry of class action lawsuits against businesses under the Illinois Biometric Information Privacy Act, commonly known as “BIPA.”  In this Vlog, Seyfarth Shaw Associate Alex Karasik sits down with esteemed class action litigator, Partner Jerry Maatman, to discuss this emerging legal trend, and to provide employers guidance on how to prevent and defend against BIPA class actions.


Unique to the state of Illinois, the Biometric Information Privacy Act was the first of its kind enacted by a state legislature.  In light of the technological advancements of the past decade, the Illinois legislature enacted this law to protect the “biometric data” of individuals, including their fingerprints, retinal scans, and facial recognition.  Since BIPA’s passage in 2008, a number of states have followed suit and added “biometric data” to their privacy laws. 

Implications For Employers

Recently, there has been a major uptick in ligation across the country involving biometric technology, and there are no signs of this trend slowing down.  In terms of preventive measures, business should establish sound protocols for the handling and dissemination of biometrics.  This is important because, in this day and age, biometric data can be used to access sensitive personal information.  Businesses should thus be cognizant of the biometric data laws in the states where they operate and closely examine whether their own policies and procedures are compliant.

Businesses must also be prepared to defend against a potential lawsuit under a biometric privacy statute.  Following the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins 136 S. Ct. 1540 (2016), the concept of “standing” has become highly relevant in employment law.  As such, when confronted with a BIPA suit, businesses should focus on whether the plaintiffs suffered a traceable harm stemming from the actions taken on their biometric data.



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

Seyfarth Synopsis:  In In Re Subway Footlong Sandwich Mktg. & Sales Practices Litig., No. 16-1652 (7th Cir. Aug. 25, 2017), the U.S. Court of Appeals for the Seventh Circuit overturned a district court’s approval of a class action settlement involving Subway sandwich purchasers who sued for alleged consumer fraud.  The Seventh Circuit called the settlement “worthless” in terms of alleged relief to the class. The decision illustrates that companies defending class action litigation cannot exit such lawsuits by simply “buying peace” by paying-off plaintiffs’ lawyers without providing any value to the class. In this respect, it is one of those unique rulings that is well worth a read by corporate counsel and business executive alike.


In In Re Subway Footlong Sandwich Mktg. & Sales Practices Litig., No. 16-1652, 2017 U.S. App. LEXIS 16260 (7th Cir. Aug. 25, 2017), the U.S. Court of Appeals for the Seventh Circuit addressed the propriety of an injunctive relief settlement for a class of Subway “Footlong” sandwich purchasers.

A number of state-law consumer protection class actions were filed against Subway based on Subway’s alleged failure to ensure that its Footlong sandwiches were actually 12 inches long.  Id. at *3-5.  Limited discovery showed that the claims had little merit. Subway had always taken steps to ensure that its sandwiches were proper length, but bread length nonetheless varies due to natural and unpreventable variation in the bread-baking process.  Id. at *5.

Rather than pursue resolution on the merits, the parties reached a class-wide settlement for injunctive relief whereby Subway agreed to implement redundant and futile measures in an attempt to ensure Footlongs lived up to their name.  Id. at *7.  Plaintiffs’ attorneys received $520,000 in return for attorneys’ fees.  Id. at *8.  The district court approved of the settlement over objections by certain class members.  Id.

On appeal, the Seventh Circuit reversed, finding that the settlement was “worthless” to the class.  Id. at *14.

Case Background

In 2013, after an online photo went viral showing one customer’s Footlong Subway sandwich was in fact only 11 inches, a slew of plaintiffs’ attorneys filed putative class actions against Subway for damages and injunctive relief.  Id. at *3-4.   The class actions were consolidated in a multidistrict litigation in the U.S. District Court for the Eastern District of Wisconsin.  Id. at *4-5.

Limited discovery revealed that the claims had little merit as: (i) Subway had taken steps to ensure that its Footlongs were in fact 12 inches long; (ii) the minor variability in bread length revealed was due to natural and unpreventable variability in the baking process; and (iii) irrespective of bread length, customers received the same amount of meat, cheese, and other toppings on a sandwich.  Id. Such facts eliminated any hope of certification of a damages class under Rule 23(b)(3), so class counsel focused on certification of a Rule 23(b)(2) injunctive relief class instead.  Id. at *5-6.

The parties subsequently reached a settlement for injunctive relief whereby Subway agreed to implement measures aimed at ensuring Subway Footlongs were in fact 12 inches long, including: (i) requiring franchisees to use a measuring tool for sandwiches; (ii) requiring corporate quality-control inspectors to measure baked bread and check oven operation during regularly scheduled visits; and (iii) posting a notice on its website and in restaurants notifying customers of the variability in baked bread.  Id. at *7.

In return, the plaintiffs agreed to cap their requests for attorneys’ fees at $525,000 and incentive awards at $1,000.  Id. The district court preliminarily approved the settlement, and class counsel filed a motion seeking $520,000 in fees for class counsel and $500 incentive awards for each named plaintiff.  Id. at *8.

A professional objector who was also a member of the class objected to the settlement.  However, the district court overruled the objection, approved the settlement, and certified a class of persons nationwide who had purchased six-inch and Footlong Subway sandwiches between 2003 and 2015.  Id.

The objector appealed.

The Decision

On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s approval of the class action settlement.  Id. at *14.

The Seventh Circuit found that the settlement was “worthless” and that “[n]o class action settlement that yields zero benefits for the class should be approved[.]”  Id. at *11.  The Seventh Circuit explained that irrespective of the measures Subway promised to take under the settlement, “there’s still the same small chance that Subway will sell a class member a sandwich that is slightly shorter than advertised.”  Id. at *13 (emphasis in original).

Moreover, the Seventh Circuit found that class members’ right under the settlement to hold Subway in contempt for violating the injunction did not add any value.  Id. at *14.  “Contempt as a remedy to enforce a worthless settlement is itself worthless.  Zero plus zero equals zero.”  Id.

Finally, though not part of its holding, the Seventh Circuit expressed its disdain for the Footlong lawsuits by proclaiming that, because the consolidated class actions sought worthless relief, they “should have been dismissed out of hand.” Id. at *14 (internal quotations and citation omitted).

Implication For Employers

As shown by the Seventh Circuit’s decision, paying-off class action plaintiffs’ counsel can be a poor strategy for efficient resolution of class litigation.  If an employer wishes to realize the cost-savings of early settlement, it must ensure that settlement provides actual value to the class and fees to class counsel commensurate with that value.  Otherwise, expected cost-savings are squandered on opposing objectors (or the trial judge), with the possibility that the trial or an appellate court rejects the settlement and returns the litigation to where settlement talks began.

As an alternative approach, employers should consider efficient and realistic paths to summary judgment.  That approach can make good sense in the face of attorney-driven class litigation with no emotional appeal like the Subway case.  The Seventh Circuit’s emphatic command that meritless class actions should be “dismissed out of hand” should give employers and counsel more confidence in that regard.