00-money-bagBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In In Re Southwest Airlines Voucher Litigation, Case No. 13-3264 (7th Cir. Aug. 20, 2015), the U.S. Court of Appeals for the Seventh Circuit upheld a fee award to class counsel in a class action that resulted in a “coupon settlement” – a settlement in which the defendant agrees to issue coupons to the class members.  In upholding the fee award, the Seventh Circuit also discussed the propriety of a number of settlement provisions and practices that are frequently at issue in class action settlement negotiations.  While not a workplace class action, this decision should be of interest to any employers who are involved in class action litigation because it provides guidance about how courts in the Seventh Circuit and beyond will view certain class action settlement provisions and practices.

Case Background

Southwest Airlines issued vouchers to its “Business Select” passengers that could be redeemed for one free in-flight alcoholic beverage.  Some passengers saved their beverage vouchers so they could use them on later flights.  In August 2010, Southwest Airlines announced that these vouchers could only be used on the flight covered by the “Business Select” ticket.  The plaintiffs filed a class action against Southwest Airlines for breach of contract, unjust enrichment, and violations of state consumer fraud laws.

The district court dismissed the unjust enrichment and consumer fraud claims as being preempted by the Airline Deregulation Act.  The parties subsequently agreed to settle the remaining breach of contract claim on a class-wide basis.  Under the terms of the settlement, Southwest Airlines agreed to provide all class members with a  voucher that was good for one free in-flight alcoholic beverage and further agreed to pay class counsel $3 million in attorneys’ fees.  The parties also agreed on a “clear-sailing” clause that provided that Southwest Airlines would not object to the attorneys’ fee request up to the agreed-to amount, and further agreed to a “kicker” clause, which provided that, if the district court were to reduce the fee award, the reduction would benefit Southwest Airlines rather than the class.  The parties also agreed on limited injunctive relief that would constrain how Southwest could issue vouchers in the future.

Several class members objected to the class settlement, focusing primarily on the fee award.  They argued that the settlement was a “coupon settlement” within the meaning of the Class Action Fairness Act (“CAFA”), and that therefore the fee award needed to be a percentage of the value of the vouchers actually redeemed by class members.  As such, they contended that class counsel sought inflated fees to the detriment of the class. They further argued that the settlement agreement was unfair because it contained the “clear-sailing” and “kicker” clauses, which manifested the lack of a fair and adequate settlement.

The district court agreed that the CAFA applied, but held that attorneys’ fees nonetheless could be calculated using the lodestar method of determining attorneys’ fees.  Under this method, fees are calculated by multiplying the hours spent on litigation by a reasonable hourly rate and then adjusting the award based on various factors, such as whether the work was taken on a contingency basis and the quality of the result.  Using this method, the district court awarded $1,649,118 in attorneys’ fees.  The district court further held that the “clear-sailing” and “kicker” clauses did not render the settlement agreement unfair because the class was receiving what amounted to the full value of their claims.  Both class counsel and several class members appealed that decision.

The Seventh Circuit’s Decision

The Seventh Circuit agreed with the district court that the CAFA applied because, in the Seventh Circuit, a voucher is considered to be a coupon.  Southwest Airlines, at 7.  It then considered whether the district court correctly concluded that the lodestar method nonetheless could be applied to determine the fee award.  Disagreeing with the Ninth Circuit’s decision in In Re HP Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013), the Seventh Circuit concluded that attorneys’ fees could be calculated using the lodestar method in coupon settlements, while simultaneously warning district courts to use the method only after “evaluat[ing] critically the claims of success of a class receiving coupons.”  Id. at 16-17.

The Seventh Circuit further considered whether the settlement agreement was fair and reasonable in light of Southwest Airlines’ agreement to pay $3 million in attorneys’ fees and in light of the “clear-sailing” and “kicker” clauses.  Addressing the objecting class members’ argument that the fact Southwest Airlines was willing to pay $3 million in attorneys’ fees showed that there was additional money class counsel could have recovered on behalf of the class, the Seventh Circuit held that this argument, while potentially powerful in other cases, was of “little force” here because “the class members [would] receive essentially everything they could have hoped for.  As the district court put it, ‘the class members are getting back exactly what they had before, an unexpired drink voucher.’”  Id. at 18-20.

The Seventh Circuit also addressed the “clear-sailing” and “kicker” clauses.  It pointed out that, while it had “deep skepticism about such clauses, which seem to benefit only class counsel and can be signs of a sell-out,” it would not adopt a rule finding that such clauses per se bar settlement approval.  Id. at 21.  On the record before it, the Seventh Circuit concluded that the settlement agreement was fair and reasonable despite these clauses because the class members got everything they could have hoped for in the settlement.  Id.

Finally, the Seventh Circuit addressed class counsel’s argument that he should receive $3 million in fees because Southwest Airlines agreed to provide that amount.  It held that judicial deference to the provisions of class action settlements is not appropriate, and that the district court did not abuse its discretion in awarding class counsel $1.6 million in fees.  Id. at 22.

Implications For Employers

Employers who are involved in class action litigation should use this case for guidance on how courts in the Seventh Circuit and beyond will react to proposed class action settlement agreements.  Employers should be aware that including “clear-sailing” or “kicker” clauses in such agreements will cause district courts – and any appellate court on appeal if objectors attack the settlement – to more closely examine the fairness of the proposed settlement because such clauses may only benefit class counsel.  In the right circumstances, employers may also be able to use this case to argue that they are providing full relief to a class even when they are not providing monetary relief if they can plausibly argue that they are providing something else that remedies a past wrong.  Finally, employers who agree to provide nearly full relief to the class to settle a class action can use this case to overrule objections to the terms of a class action settlement.

00-money-bagBy Christopher M. Cascino and Jennifer A. Riley

In In Re Capital One Telephone Consumer Protection Act Litigation, Case No. 12-CV-10064, 2015 WL 605203 (N.D. Ill. Feb. 12, 2015), Judge James Holderman of the U.S. District Court for the Northern District of Illinois recently approved an unprecedented $75,455,099 settlement for 1,378,534 class members in a Telephone Consumer Protection Act (“TCPA”) class action and awarded plaintiffs’ counsel a whopping $15,668,265 in fees. As employers and business are increasingly aware, TCPA class actions are becoming ubiquitous because of the severe penalties imposed by the statute and the ability of plaintiffs’ attorneys to leverage those penalties to acquire large settlements and windfall fee awards.

Though not a traditional workplace class action, In Re Capital One Telephone Consumer Protection Act Litigation teaches many valuable lessons for companies and employers alike. Enterprising plaintiffs’ attorneys continue to take advantage of the onerous requirements, stiff penalties, and unclear language of the TCPA to bring suits and receive large fee awards. Until the FCC provides some clarity, companies should ensure that their practices fit comfortably within the confines of the limited circumstances where the use of autodialing and prerecording is unquestionably allowed under the TCPA and FCC regulations.

Case Background

In 1991, Congress enacted the TCPA. “The TCPA prohibits callers from using ‘any automatic telephone dialing system or an artificial or prerecorded voice’ to make any non-emergency call to a cell phone, unless they have the ‘prior express consent of the called party.’” Capital One Telephone Consumer Protection Act Litig. at *3 (quoting 47 U.S.C. § 227(b)(1)(A)(iii)).  It imposes stiff penalties for violations, providing for statutory damages of $500 per call or $1,500 per call for willful or knowing violations. Id. at *3-4.

During 2011 and 2012, plaintiffs filed a number of class and individual actions against Capital One alleging that it violated the TCPA by calling class members’ cell phones using an automated dialing system and/or by using prerecorded messages in its calls to class members to collect on credit card debit. Id. at *1-2. On December 10, 2012, those cases were consolidated before Judge Holderman in the Northern District of Illinois. Id. at *2.

Capital One argued that it obtained consent to call each class member because in every version of its standard cardholder agreement, Capital One provided that customers consented to receive calls through autodialing technology. Id. at *12.  Capital One argued that the TCPA itself allows autodialing and prerecording with “express consent,” and FCC regulations provide that “autodialed collection calls to ‘wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party,’ and are therefore permissible.” Id. (quoting 23 F.C.C.R. 559 ¶ 9).

Plaintiffs pointed to another part of the FCC regulation stating that “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” Id. at *12-13 (quoting 23 F.C.C.R. 559 ¶ 9). Plaintiffs argued that, under this part of the regulation, Capital One could only autodial or make prerecorded calls to class members if the class members actually provided their cell phone numbers to Capital One on their respective cardholder agreements. Id.

Case Settlement

Despite the fact that it had a strong argument that the class consented to receiving autodialed and prerecorded calls, Capital One agreed to settle the case for $75,455,099 because of the lack of clarity in the FCC regulation and the enormous potential liability if it lost on the merits. Id. at *6, *11. Of the $75,455,099 settlement, $22,636,530  – 30% of the settlement amount – was designated for class counsel’s fee award, with $5,093,000 designated for notice and administration costs and $47,700,569 – or $2.72 per class member/$34.60 per class member who filed a claim form – designated for the class. Id. at *6-7.

The Court approved the class action settlement amount, though it “cut” class counsel’s fee award from $22,636,530 to $15,668,265. Id. at *39. The Court calculated this award by finding that class counsel should receive 36% of the first $10 million recovered, $25% of the next $10 million recovered, $20% of the next $25 million recovered, and 15% of any amounts recovered thereafter. Id. The Court decided that this graduated recovery scheme was appropriate because class counsel should receive a premium on the first $10 million recovered due to the risks in pursuing this litigation while giving class counsel a gradually reduced incentive to seek additional damages to “account for cases where the marginal costs of increasing the class’s damages recovery are low.” Id. at *38. After the reduction in fees, class members who filed claims should receive $39.66 rather than the originally proposed $34.60. This reduced award still provided class counsel with an enormous windfall of 20.77% of a $75.5 million settlement.


Because of the size of the fee award given to plaintiffs’ counsel in this case and the ability to leverage the stiff penalties of the TCPA to force settlement, we expect plaintiffs’ lawyers to continue to search for every opportunity to file TCPA suits.  We also expect that plaintiffs’ lawyers will use every ambiguity in the law and FCC regulations and the aforementioned stiff penalties to compel other well-meaning companies to settle dubious TCPA claims and, as a result, receive large fee awards.  Because of this, employers who contact their customers via cell phone should be vigilant regarding their compliance with the TCPA. Companies seeking to collect debts should refrain from using automatic dialing and prerecorded messages without first obtaining an express written consent from each customer that identifies the cell phone number to which the company can place automatic-dialed calls.

By Christopher M. Cascino and Jennifer Riley

On January 14, 2015, in Kragnes v. Schroeder, No. 13-2065 (Iowa App. Ct. Jan. 14, 2015), the Iowa Appellate Court upheld the district court’s decision to cut the fees of plaintiffs’ counsel in a successful class action from a requested $15 million to $7 million. Though not a workplace class action, the decision in Kragnes is a case study for the grounds to challenge fee awards in class actions.

Case Background

In 1960, the City of Des Moines, Iowa, entered into franchise agreements with its electricity and natural gas providers, providing that each provider would pay Des Moines a percentage of its gross receipts for their sales into Des Moines.  Kragnes v. City of Des Moines, 714 N.W.2d 632, 633 (Iowa 2006). These agreements were then made into ordinances. Id.

On May 6, 2004, then-Iowa Governor Tom Vilsack signed a law phasing out sales and use tax for the sale of gas and electricity for residential use. Id. at 634. Facing budget shortfalls, Des Moines responded by entering into updated franchise agreements with its electric and gas providers that increased the franchise fee. Id. at 635. Lisa Kragnes then filed a class action on behalf of herself and those similarly situated, arguing that the increased franchise fees were illegal taxes. Id. at 636.

Ultimately, the Iowa courts determined that the increased fees were illegal taxes, and that Des Moines had to refund approximately $40 million to its taxpayers. Shroeder at 2. The $40 million was placed into a fund so that it could be remitted to the Des Moines taxpayers after class counsels’ fees were removed.

Class counsel requested $15 million in fees, or approximately 37% of the $40 million fund. Id. The district court determined that this amount was “not fair to the class members” and that an award of $7 million in fees, or approximately 18% of the fund, was appropriate. Id. at 3. Class counsel appealed the award, claiming it was “unreasonably low.” Id.

The Appellate Court’s Decision

The Iowa Appellate Court first considered whether the district court erred in considering criteria other than those laid out in the Iowa Rules of Civil Procedure and Rules of Professional Conduct in deciding to reduce class counsel’s fee award. Specifically, the Appellate Court considered whether the district court’s decision to consider the fact that “[t]he money used to pay the attorneys’ fees and expenses will come from the very residents who have already been wronged in the illegal extraction of franchise fees” was an abuse of discretion. Id. at 6 (emphasis omitted). The Appellate Court held that the district court properly considered this a factor, since the applicable rules do not preclude consideration of additional factors in fixing a fee award. Id.

The Appellate Court further rejected class counsel’s argument that it was entitled to the 37% fee because that was the amount stated in its contingency fee agreement with the class representative and published to the class. Id. at 7. The Appellate Court pointed out that judges are not bound by fee agreements between class counsel and the class representative, and upheld the district court’s decision that the award could be reduced in spite of the agreed and published fee arrangement. Id. at 7-8.

Finally, the Appellate Court held that an award of 18% of the $40 million fund was not unreasonable. The Appellate Court reasoned that, given the large size of the recovery, the percentage of the recovery should be reduced to make it reasonable. Id. at 8-9.

Implications For Employers

Employers in Iowa and elsewhere who are subject to class actions should use this case to encourage reasonable settlement demands from class counsel. It can be used to convince class counsel that a large settlement or verdict might not necessarily increase their personal recovery, as courts are more likely to reduce the percentage of damages allocated to class counsel’s fees when there are larger verdicts or settlements.

This case also gives employers a new, potentially powerful argument for why class counsel’s fees should be reduced. The Appellate Court found that class counsel’s fees can be reduced as unreasonable if they represent a significant percentage of the recovery because, in the very act of awarding fees, courts force the class to pay class counsel in the form of a smaller recovery for the wrong class counsel claims they suffered. This argument should concern class counsel since, when it is addressed to them, they will have to argue why the class they have been claiming is so hurt that they need an enormous recovery should have their recovery reduced to pay class counsel’s (often) exorbitant fees. That this is potentially concerning to class counsel is confirmed in the Schroeder case itself, with class counsel trying to dodge the issue by asserting the district court abused its discretion by even considering the issue.

Given the sums at issue, we anticipate a further appeal to the Iowa Supreme Court. Stay tuned.

By Gerald L. Maatman, Jr.

On October 31, 2014, in Oliver v. Orleans Parish Sch. Bd., No. 2014-C-0329 (La. Oct. 31, 2014), the Supreme Court of Louisiana reversed a Fourth Circuit Court of Appeal decision and dismissed a class action lawsuit brought by Plaintiffs, 7,600 former teachers and permanent school district employees who were terminated following Hurricane Katrina in 2005, against their school board and a host of State Defendants. While decision agreed with the Court of Appeal’s analysis of the res judicata doctrine (as the Plaintiffs had previously reached a settlement agreement with Defendant Orleans Parish School Board (“OPSB”), and the State of Louisiana (“State”), and those Defendants were previously dismissed from the lawsuit), the Supreme Court reversed the Court of Appeal’s application of the  “exceptional circumstances” exception to the res judicata doctrine. The Supreme Court also rejected Plaintiffs’ due process claims, citing the exigent circumstances caused by Hurricane Katrina.

This ruling from the Bayou country provides a valuable framework for how employers can use settlement agreements to preserve potential res judicata defenses in future litigation.

Case Background

On behalf of Plaintiffs, the Unified Teachers of New Orleans (“UTNO”), the exclusive bargaining representative for all Orleans Parish teachers, filed three lawsuits against the OPSB and the State defendants, alleging wrongful termination and a violation of due process rights, among other things. Id. at 11-12. Plaintiffs alleged that Defendants improperly placed class members on disaster leave, terminated them in violation of their employment contracts, and placed their schools in the hands of the State Defendants who failed to abide by certain statutes when re-staffing the schools, all as a result of Hurricane Katrina and the allegedly unconstitutional State Legislature Act 35. Id. at 24. While the claims against the State Defendants were dismissed, UTNO and OPSB reached a global settlement on September 18, 2007. Id. at 4, 8. A few months prior to settlement, Plaintiffs filed a class action lawsuit against the same OPSB and State Defendants, seeking class certification and damages.  Id. at 9.  In rejecting Defendants’ res judicata claims, both the trial court and the Court of Appeal let the newly filed lawsuit stand and subsequently allowed damages. Id. at 11-12.

The Decision Of The Supreme Court Of Louisiana

In reversing the Court of Appeal’s judgment, the Supreme Court of Louisiana held that the doctrine of res judicata applied, without any preclusion due to exceptional circumstances. Id. at 24. The Supreme Court applied the five requirements for a finding of res judicata under Burguieres v. Pollingue, 843 So. 2d 1049, 1052-53 (La. Feb. 25, 2003), including: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Id. at 13. The Supreme Court held that all five factors were satisfied here. Id. at 24. The Supreme Court discussed and rejected the potential “exceptional circumstances” exception to the res judicata defense based on the facts present. Id. at 20-21. Finally, in light of institutional damage caused by Hurricane Katrina, the Supreme Court held that Defendants’ post-termination staffing procedures satisfied due process. Id. at *22-23.

Implications For Employers

 Oliver is instructive for employers because it underscores the long-standing doctrine that settlement agreements are favored in the law and will be broadly construed. It also teachers that when reaching class action settlements with allegedly aggrieved workers, employers are well served to utilize the broadest possible language to document the resolution. This practice will often provide a res judicata defense in the face of later filed actions.

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

Settling a workplace class action is far more complicated than resolving other types of litigation. Yet, the fundamental building blocks of settling a case – an offer, acceptance of precise terms, and substantiation of the agreement – are equally as important in resolving a simple as well as a complex piece of litigation.

On September 23, 2014, Judge Amy St. Eve of the U.S. District Court for the Northern District of Illinois in Craftwood Lumber Co. v. Interline Brands, Inc., No. 11-CV-4462 (N.D. Ill. Sept. 23, 2014) drove home this point; the Court held that, despite creating a “term sheet” outlining certain terms of a purported class action settlement, the parties had not reached an enforceable settlement.

This ruling illustrates that although parties may be bound to a class settlement prior to the creation of the final agreement, which is what occurred in the Tenth Circuit decision of Miller v. Basic Research, LLC, covered here that in order to be bound, the parties must have at least reached an agreement to the material terms of the contract and exhibit the intent to be bound.

Though it is not an employment-related case, Judge St. Eve’s ruling in Craftwood Lumber ought to be required reading for any employer entering into settlement negotiations relative to a class action.


Plaintiff, Craftwood Lumber, brought a putative class action alleging that, defendant, Interline Brands, Inc., violated the Telephone Consumer Protective Act of 1999, 47 U.S.C. §  227, by sending at least 1,500 advertisements in at least 735,000 facsimile transmissions, some of which were received by Plaintiff.  The parties attempted to settle the case through mediation.  At the end of the one-day session, the parties and counsel hastily signed a one-page document titled “Term Sheet.”

In the following weeks the parties unsuccessfully attempted to negotiate a written settlement agreement.  Defendant brought a motion to enforce the settlement, and in support, it provided the Court with a copy of the Term Sheet, arguing that the parties had entered in to a settlement agreement.  Plaintiff’s counsel objected, asserting that there was no agreement and that it was a violation of the confidentiality agreement to produce the Term Sheet to the Court.

The Court’s Opinion

Judge St. Eve held that the Term Sheet failed to include several terms that were material to the class action settlement.  The most significant omission was the amount per claim – what the Defendant would pay any class member for each fax recipient or each fax transmission.  Additionally, the Term Sheet lacked any release terms and settlement class definition.  The Court reasoned that the provisions upon which Defendant was basing its assertion that an agreement had been reached were insufficient to reasonably imply the missing terms. Judge St. Eve determined that she was unwilling to select those terms from the wide range of potential possibilities. Ultimately, the Court held that in addition to lacking materials terms, it was unclear whether the parties intended to be bound by the Term Sheet.  On this basis, the Court held that the parties did not enter in to an enforceable settlement agreement.

Implications for Employers

This ruling illustrates what can go awry in terms of documenting an enforceable class action settlement.  In order to secure an enforceable settlement agreement, the parties must reach an agreement on the material terms and evidence an intent to be bound.  Normally, this situation is not a problem given that the parties normally will strive to achieve these ends in the settlement agreement. This translates into investing significant time and effort to craft a precise Term Sheet; covering all of key terms of the settlement (such as the class definition, the class pay-out distribution formula, and the myriad of other bells and whistles that make up a Rule 23 class-wide settlement); and not leaving the settlement/mediation session unless and until all of these issues are covered and both parties express their intent to be bound. Simple, but critical…

By Timothy F. Haley

That’s not a typo! In a decision issued on August 8, 2014, Judge Lucy Koh of the U.S. District Court for the Northern District of California rejected the parties’ $324.5 million proposed class action settlement as inadequate and denied the Plaintiffs’ motion for preliminary approval in In Re High-Tech Employee Antitrust Litigation, 11-CV-0250, 2014 U.S. Dist. LEXIS 110064 (N.D. Cal. Aug. 8, 2014). At first blush that appears like a lot of money to deny the Plaintiff class and force a trial (absent a renewed offer). But Judge Koh’s opinion makes significant arguments to support her conclusion that the offer is insufficient.

The Decision

Plaintiffs filed five class action lawsuits against their seven former high technology employers, including Apple and Google, alleging that they had engaged in a conspiracy not to solicit one another’s employees. Plaintiffs alleged that this conspiracy violated §1 of the Sherman Antitrust Act and had the effect of suppressing the wages of the companies’ employees. (We have previously blogged about this case here, here and here.) The cases were consolidated and Plaintiffs filed a motion for class certification on October 1, 2012. The Court denied that motion on April 5, 2013, but without prejudice to the Plaintiffs filing an amended motion addressing the Court’s concerns. Id. at *6-8.

On July 12 and 30, 2013, after class certification had initially been denied and while an amended motion for class certification was pending, Plaintiffs settled with three of the Defendants (“Settled Defendants”) for $20 million (“Initial Settlement”). Preliminary approval of the settlement agreement was granted on September 12, 2013, and final approval was entered on May 1, 2014. On October 25, 2013, the Court granted the Plaintiffs’ amended class certification motion.  Thereafter, the remaining Defendants (“Remaining Defendants”) filed five motions for summary judgment and a motion to exclude the testimony of Plaintiffs’ expert, who opined that the total damages in the case exceeded $3 billion, which comes to more than $9 billion after trebling as required by the Sherman Act. The Court denied each of these motions. Id. at *8-10.

On April 24, 2014, one month before trial was set to commence, counsel for Plaintiffs and the Remaining Defendants sent the Court a joint letter stating that they had reached a settlement. The Plaintiffs’ motion for preliminary approval of the settlement was filed on May 22, 2014. But one of the named Plaintiffs, Michael Devine, split ranks and filed an opposition to the proposed agreement. Id. at *10-11. The agreement provided that the Remaining Defendants would pay a total of $324.5 million of which Plaintiffs’ counsel would seek up to 25%  (approximately $81 million) in attorneys’ fees, $1.2 million in costs, and $80,000 per class representative as incentive payments. It was estimated that the class members each would receive an average of approximately $3,750 from the settlement if the Court were to grant all the requested deductions and there were no further opt-outs. But the Court concluded that the settlement was inadequate and denied the Plaintiffs’ motion for preliminary approval. Id. at *15-16.

The Court’s principal concern was that the class members would recover less, on a proportional basis, from the proposed settlement than they would from the $20 million paid in the Initial Settlement. And this would occur, despite the fact that the case had progressed consistently in the class’s favor since the time of the Initial Settlement. The Settled Defendants contributed only 5% of the total compensation paid to the class during the class period, while the Remaining Defendants paid out 95% of the class’s total compensation. Based upon these figures, if the Remaining Defendants were to settle at the same (or higher) rate as the Settled Defendants, the Remaining Defendants would have to pay at least $380 million, more than $50 million greater than their proposal. Id. at *17-20. The Court also noted that based upon the potential damages of over $3 billion calculated by Plaintiffs’ expert, the total amount for both settlements would be 11.29% of single damages, or merely 3.76% of treble damages under the Sherman Act. Id. at *21.

The Court also opined that the evidence of an over-arching agreement not to solicit each other’s employees and the effect of the agreement in suppressing wages was compelling. Id. at *24-64. Given the fact that since the Initial Settlement the Plaintiffs had received orders certifying the class and denying the Defendants’ motions for summary judgment and to exclude Plaintiffs’ expert testimony, the Court saw no basis for discounting the settlement as compared to the Initial Settlement. Accordingly, the Court denied the Plaintiffs’ motion for preliminary approval. Id. at *64-67.

Implications For Employers

This is one of a number of recent wage suppression cases in which plaintiffs have been successful at obtaining class certification and recovering millions of dollars in settlements. Employers are sometimes unaware that application of the antitrust laws is not limited to the commercial marketplace. The Sherman Act also applies to agreements among employers that impact the employment market. Thus, employers should be cautious about exchanging information with competitors regarding wages or benefits or entering into agreements regarding the recruitment, solicitation or hiring of employees. As this case demonstrates, failure to do so could have very expensive consequences.

By Chris DeGroff and Brian Wong

In the world of EEOC systemic enforcement, court-imposed injunctive relief accompanies nearly every settlement of Title VII claims. The parties memorialize this relief in the form of a consent decree to be approved by the Court and entered as an enforceable order. Though the parties and the public tend to focus primarily on the dollar value of systemic action settlements, employers bound by consent decrees must remember that failure to comply with agreed-upon injunctive mandates could result in significant exposure for the company.

In EEOC v. Supervalu, Inc. and Jewel-Osco, Case No. 1:09-CV-05637 (N.D. Ill. July 15, 2014), the EEOC tried to send this very message to employers.


On September 11, 2009, the EEOC sued Supervalu, Inc. and Jewel-Osco (collectively “Jewel”) in the U.S. District Court for the Northern District of Illinois, alleging Jewel engaged in a pattern or practice of violating Title I of the Americans with Disabilities Act.  Specifically the EEOC alleged Jewel prohibited disabled employees from returning to work after disability leaves unless they could return without accommodation, and that Jewel terminated such employees at the end of their one-year leave period.

On January 14, 2011, the EEOC and Jewel entered into a three-year Consent Decree to resolve the case. Among other provisions, the Consent Decree required Jewel to make monetary payments to eligible claimants, provide training to certain employees who administer disability leaves, and engage a “job description consultant” and “accommodations consultant” to improve job descriptions and assist in identifying possible accommodations for disabled employees.

The case was over. But was it?

The next year, on March 26, 2012, the EEOC filed a motion seeking civil contempt sanctions against Jewel for failing to follow the requirements of the Consent Decree as to three former employees. The EEOC also sought limited discovery on the issue, which the Court initially denied, but thereafter granted following written objections by the parties. After the parties engaged in limited discovery, the Court conducted evidentiary hearings on March 17 and 18 and April 7, 2014, before U.S. Magistrate Judge Michael T. Mason.

The Magistrate Judge’s Recommendation

Judge Mason filed his Report and Recommendation on July 15, 2014, determining that Jewel violated the terms of the Consent Decree by failing to accommodate and ultimately terminating three disabled employees.  According to the Court, Jewel failed to follow its own interactive process guidelines and declined to consider a list of possible accommodations generated by the accommodations consultant the company itself had appointed per the Consent Decree.  According to Magistrate Judge Mason, “[q]uite simply, the evidence [was] overwhelming that the company did not do what it was supposed to do under the Decree.” Id. at 46.

After determining clear and convincing evidence showed Jewel violated the Consent Decree, the Court recommended: (i) a finding of contempt on the part of Jewel; (ii) compensatory sanctions of over $82,000 in back pay for the three aggrieved individuals; (iii) a one year extension of the term of the Consent Decree; (iv) retention of a company-paid “special master” to review prospective accommodation decisions made by Jewel in the future; and (v) company payment of reasonable fees and costs incurred by the EEOC in pursuing its contempt motion.

But the saga continues.  Jewel has until July 29, 2014 to file objections to Judge Mason’s Report and Recommendations.  So blog readers, please stay tuned.

Implications For Employers

Regardless of the outcome of the ongoing briefing, this action brought by the EEOC serves as a cautionary tale for any employer living under the terms of an EEOC consent decree. Companies bound by consent decrees must remain vigilant, as the EEOC frequently looks for opportunities to retake the spotlight by making allegations about supposed compliance issues. As EEOC Chicago Regional Attorney John Hendrickson has warned, “Consent decrees have teeth.” The attraction of these compliance actions for the EEOC is clear:  tag-along actions like those discussed here have all of the publicity elements of an actual lawsuit, while expending minimal governmental resources. Because consent decrees often contain exhaustive injunctive mandates, robust documentation of those efforts can be a critical safeguard against aggressive EEOC allegations of non-compliance.

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


By Gerald L. Maatman, Jr., Jennifer A. Riley, and Rebecca S. Bjork 

We have been following developments in an important case regarding judicial review of the EEOC’s statutory obligations to try and resolve discrimination complaints in conciliation before filing suit. Today, the Supreme Court decided to take up consideration of this issue, granting certiorari in Mach Mining, LLC v. EEOC (No. 13-1019). As our previous coverage of this case demonstrates, the outcome could be a game changer in EEOC litigation. The Seventh Circuit had ruled in December 2013 that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the Commission. The Seventh Circuit ruled it will not scrutinize the EEOC’s pre-suit obligations, so long as the EEOC’s complaint pleads it has complied with all procedures required under Title VII, and the relevant documents are facially sufficient. Mach Mining sought Supreme Court review due to conflicting rulings amongst the circuit courts about the courts’ authority and standards for reviewing the EEOC’s pre-suit conduct, and the EEOC did not oppose the petition for certiorari.

The case has significant implications for employers who are dealing with the EEOC. If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics. We will continue to follow developments as the parties and amicus groups file their briefs, and keep our readers informed.


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

On June 20, 2014, the U.S. Court of Appeals for the Eighth Circuit reversed a district court’s dismissal of a request by the NFL Players’ Association and several NFL players (collectively, the “Association”) to set aside and reopen an earlier Stipulation and Settlement Agreement with the National Football League (“NFL”). The decision – Reggie White v. NFL Players Association, No. 13-1251 (8th Cir. June 21, 2014), illustrates that settlements and stipulations of dismissal in a class action context may be vulnerable to later attack under Rule 60 of the Federal Rules of Civil Procedure.


In 1992, Reggie White and four other players sued the NFL on behalf of all other NFL players. They asserted that the NFL’s free agency system, college draft system, practice of using standard-form contracts, and several other NFL rules violated antitrust laws. Subsequently, the district court certified a class of current and former NFL players. While this lawsuit was pending, the NFL and the players began to negotiate a deal that they hoped would end the labor issues that had plagued their relationship. On February 26, 1993, these negotiations culminated in the signing of  the Stipulation and Settlement Agreement (“SSA”). Although styled as a settlement, it functionally operated as a collective bargaining agreement. The SSA awarded monetary relief to each class member to compensate them for the NFL’s alleged antitrust violations. The SSA also set forth rules regarding numerous labor-related issues.

Although the SSA was set to expire in 1996, the NFL and players agree to extend it four times – in 1996, 2000, 2002, and 2006.  In 2008, the NFL declined to extend the SSA.  The final year of the SSA became 2010.  For this final year, there was no salary cap.  The players expected the absence of a cap to yield a significant increase in player salaries.  When it did not, the players suspected that the NFL teams were colluding to avoid bidding wars over free agents.  As a result, players filed a complaint alleging that the NFL was colluding to suppress competition for free agents during the 2010 season.

In August 2011, the NFL and the Association agreed to terms on a new collection bargaining agreement. As part of this agreement, the two sides settled the various lawsuits between them. The NFL and Association settled the lawsuit over the alleged secret salary cap by signing a Dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). In the Dismissal the Association agreed to dismiss with prejudice “all claims, known and unknown, whether pending or not, regarding the Stipulation and Settlement Agreement . . . including but not limited to claims asserting . . . collusion with respect to the 2010 League Year.”

After the dismissal was signed, several NFL owners made public statements about the NFL’s alleged collusion in 2010. The player’s association interpreted these statements as admissions that the NFL had colluded during the 2010 season to institute a secrete salary cap in violation of the SSA. On May 2012, the player’s association petitioned the district court to reopen and enforce the SSA so that it could pursue its collusion claim against the NFL with the new evidence.

When the NFL asserted that the Association had settled this claim in the Dismissal, the Association countered that the Dismissal was invalid because the district court had never approved the class action settlement as required by Rule  23(a).  After the district court denied the Association’s petition, the Association moved under Rule 60(b) to set aside the Dismissal on the ground that the NFL had procured the Dismissal by fraud, misrepresentation, or misconduct. The district court denied the motion.

The Eighth Circuit Opinion

On appeal, the Eight Circuit rejected Plaintiffs’ argument that the settlement was subject to Rule 23. The Eighth Circuit held that the stipulation to class certification from the 1993 SSA was unrelated to the allegations of alleged collusion. The two cases were linked peripherally by the SSA, but that was where the connection ended.

The Eighth Circuit reasoned that the SSA was not a true class settlement; instead, it was a “comprehensive collective bargaining agreement that set[] the terms of employment between the League and its players.” Id. at 11. Thus, The SSA was a “normal contract,” not a class settlement. Id. at 12. This was exemplified by the fact that, over the life of the SSA, neither party ever invoked Rule 23 for the numerous complaints that were filed for its alleged violation. The only time the parties did invoke Rule 23 was when they agreed to extend the SSA itself, and even then the parties did not actually follow Rule 23 because they did not provide notice to the same class members, but an entirely different group of players.

Next, the Eighth Circuit addressed whether, even though the Dismissal was valid, the district court erred in prohibiting the player’s association from seeking relief from the Dismissal under Rule 60(b). The Eighth Circuit found that a stipulated dismissal constituted a “judgment” under Rule 60(b). It reasoned that “[i]n nearly all relevant respects, an accepted offer of judgment [under Rule 68] is identical to a stipulated dismissal under Rule 41(a)(1)(A)(ii).” Id. at 16. Despite the fact that an offer of judgment shifts some of the potential costs of litigation to the plaintiff, the Eighth Circuit found that the “the two means of settlement are functionally equivalent.” Id. at 17. Therefore, it ruled that the Association could seek Rule 60(b) relief from the Dismissal. Id. at 18.

Implications For Employers

Although this is not an employment-related case, it has important implications for employers regarding the effect of a settlement and stipulated dismissal. This case illustrates that a stipulated dismissal may now be considered a “judgment” and therefore can potentially be revisited by a motion made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The burden that a plaintiff must meet in order to prove that such a stipulation was fraudulent, remains high. But, the fact that a plaintiff may now more easily seek to attack a settlement and dismissal after it has been finalized makes this case significant.


By Laura J. Maechtlen and Brian Wong

The U.S. District Court for the Northern District of California recently published guidance for submission of class action settlements for preliminary and final approval. The Court’s guidance, available here, is a helpful chart for employers currently navigating the rocky shoals of class action settlement.

The guidance includes detailed suggestions as to what information the parties should provide in motions for preliminary and final approval, as well as various procedures the court suggests should be best, if not standard, practice moving forward. For example, the guidance suggests that parties secure claims administrators prior to filing for preliminary approval, and provide class notice via website and supplemental email where “feasible.” These practices may be common, but certainly are not universal at present.

Employers facing class actions should be sure to add the Northern District of California’s guidance on class settlement to their litigation tool kits. As the Court is quick to remind, compliant parties will benefit from minimized risk of “unnecessary delay, or even failure, of approval” of their class settlements.