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Bifurcation in the Wake of Comcast

Recently the U.S. District Court for the Southern District of New York certified a liability class in a Title VII suit brought against the United States Census Bureau. In Houser v. Pritzker, Magistrate Judge Frank Maas found that five of eight named plaintiffs had standing to bring suit, and further held that the proposed class met the commonality and typicality requirements of Rule 23(a).

The judge declined, however, to certify a damages class. Analyzing the Supreme Court’s decision in Comcast Corp. v. Behrend, which significantly raised the bar for predominance under Rule 23(b), Magistrate Judge Maas found that certification of a damages class was inappropriate given the highly individualized nature of each class member’s damages. Rather than reject certification entirely, the Court chose to exercise its discretion under Rule 23(c)(4) to bifurcate the liability and damages phase, and proceed to adjudication of the liability questions.

As such, the decision of Houser is of significant importance to all employers in the workplace class action context.

Background

The United States Census Bureau conducts a nationwide census every 10 years, known as the Decennial Census. The 2010 Decennial Census created 1.3 million temporary employment positions between October 2008 and September 2010, and the Census Bureau received about 3.8 million applications for these positions.

In screening job applicants, the Census Bureau required all applicants with a criminal record to provide “official court documentation” of their prior arrests and convictions within 30 days of receipt of a demand letter. Once the documentation was received, staff members would review and determine whether to treat the applicant as available for hire, or request further information.

In 2010, eight individuals filed a purported class action suit challenging these procedures as non-job related and discriminatory because they negatively impacted the hiring of African-Americans and Latinos for obtaining employment.

The Court’s Decision

Magistrate Judge Maas focused primarily on two issues – subject matter jurisdiction and class certification under Rule 23 – in his ruling.

Subject Matter Jurisdiction  

The Census Bureau moved to dismiss the suit for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The court examined whether the named plaintiffs had standing to bring suit and whether a favorable decision could redress their injuries.

First, the court concluded that five of the eight named plaintiffs individually possessed Article III standing to bring suit because they met the bare minimum qualifications for employment. Even though the Census Bureau established that the candidates would not have been hired due to a variety of factors ‒ geography, test scores and availability, among others ‒ the court rejected the notion that Title VII plaintiffs must show that they ultimately would have secured employment. Rather, “the question here is whether the Census Bureau’s allegedly discriminatory practices place any of the named plaintiffs on an unequal footing in terms of their ability to compete for employment.” In answer to this question, the court determined that the “five plaintiffs have established that they were eligible to be considered for employment but were denied the opportunity to compete with other applicants. That showing is sufficient to confer standing under Title VII.”

The court also held that the requested relief could redress the injuries of the same five plaintiffs. The court rejected the Census Bureau’s argument that each plaintiff was “precluded from selection for reasons entirely independent of the challenged policies and procedures” and therefore had no injuries that could be redressed by the relief sought. The court noted that these arguments were simply “repackaged” arguments relating to standing, and it denied the Census Bureau’s motion to dismiss.

Class Certification

Next, the court examined certification of the class. The court found without hesitation that the class met the standard for commonality under the Supreme Court’s decision in Wal-Mart Stores v. Dukes, 131 S. Ct., and commented that Dukes seemed to address the very situation at bar, where there was a “testing procedure to evaluate [all] applicants for employment” and “a class action on behalf of every applicant or employee who might have been prejudiced.” The court found that the parties had all but agreed that the “central questions in the case have a common, classwide answer; [and] the only point on which the parties disagree is the answers themselves.”

In examining typicality, the court noted that the only two Latino class representatives were not among the five plaintiffs with standing, and therefore the court declined to certify a class including Latino class members. This class definition seems unlikely to hold, however, as the court noted that Plaintiffs will have an opportunity to identify other Latino representatives, and the court may in its discretion amend the class definition at that time.

Finally, the court examined the predominance requirement of Rule 23(b) and found no bar to certification with respect to injunctive relief. The court’s analysis of damages sub-classes, however, was quite different. The court explained that “[t]he Supreme Court recently emphasized the stringency of the predominance requirement in Comcast Corp. v. Behrend” which requires that plaintiffs offer a damages model capable of calculating damages across the class. Given the “highly individualized nature” of analyzing damages as to any individual class member in this case, the court found that individual questions would predominate and the stringent requirements of Comcast were not met.

Nevertheless, the court found that Comcast did not mandate denial of class certification in its entirety. Rule 23(c)(4) allows a court in its discretion to maintain a class action only with respect to particular issues, and Magistrate Judge Mass opined that “nothing in the [Comcast] ruling appears to have taken that option off the table in future lawsuits.” The court noted that although Comcast did not bifurcate the issues under Rule 23(c)(4), the plaintiffs in that suit did not request that relief.

Implications for Employers

Courts have disagreed as to the effect of Comcast on class certification. Some have held that the decision requires a class-wide model for calculating damages in order to certify a class for any purpose, while other courts have bifurcated liability and damages phases and granted certification only with respect to the former. Indeed, district courts in the Second Circuit have reached different conclusions, and the Court of Appeals for the Second Circuit seems poised todecide the issue. Employers should be watching carefully.

This blog was previously published on the Seyfarth Shaw website.

EEOC Oversight: Congress Considers Accountability Proposal

The Equal Employment Opportunity Commission (EEOC) has encountered a series of set-backs over the last several years in terms of big losses and fee sanction awards. Our past blog posts have reported on these court rulings and defeats (hereherehere, and here.) As a result, criticism has mounted, stakeholders have complained, and now some members of Congress want to do something about it.

Most recently, on June 10, the House Committee on Education and the Workforce, Subcommittee on Workforce Protections held a hearing titled “The Regulatory and Enforcement Priorities of the EEOC: Examining the Concerns of Stakeholders.” Representatives of various stake-holders testified, including the U.S. Chamber of Commerce.

Referencing complaints raised at EEOC meetings in 2012 and 2013, the Chamber pointed to a rare consensus between plaintiff and defense bars—that EEOC investigations “[are] too long, inconsistent and of questionable quality.” The Chamber noted that the EEOC has so far failed to address those complaints by providing investigators with timeliness standards or a definition of a “quality, limited investigation.” In addition, the Chamber highlighted the agency’s propensity for litigation at the expense of sound investigation and good-faith conciliation. As a key example, the Chamber cited the EEOC’s “stonewalling” in EEOC v. CRST Van Expedited, Inc., where EEOC’s failure to exhaust administrative remedies and to properly investigate before resorting to litigation led to $4.7 million in sanctions. The Chamber’s testimony can be downloaded here. Concurrent with the hearing, the Chamber released a white paper titled “Review of Enforcement and Litigation Strategy during the Obama Administration—A Misuse of Authority.”

Against this backdrop, on June 25, Rep. Richard Hudson (R-N.C.) a member of the House Committee on Education & the Workforce, introduced the Equal Employment Opportunity Commission (EEOC) Transparency and Accountability Act (H.R. 4959). A Fact Sheet on the proposed bill is here.

Summary of H.R. 4959

The proposed legislation would require the EEOC to post on its website and in its annual report an array of information to promote transparency.

In a press release announcing the bill, Congressman Hudson said: “The EEOC is tasked with a noble mission to protect American workers and job-seekers from discrimination in the workplace and hiring practices. Recently, however, the EEOC overstepped its bounds by litigating numerous cases found to be frivolous, groundless, and baseless, that have caused undue burdens on numerous businesses and industries. It is critical that Congress provides meaningful oversight to certify that the EEOC stays focused on carrying out its core mission. This legislation will increase transparency and accountability at the EEOC to help ensure that the agency fulfills its duty and adequately balances the interests of both employers and workers.”

Among other things, the proposed legislation would require the EEOC to post on its website and in its annual report an array of information to promote transparency, including any case in which EEOC was required to pay fees or costs, or where a sanction was imposed against it by a court; the total number of charges filed by an EEOC member or as a result of a directed investigation; and each systemic discrimination lawsuit brought by the EEOC.

It also would require the EEOC to conduct conciliation endeavors in good faith and such endeavors would be subject to judicial review.

Further, the bill would require the EEOC’s Inspector General (IG) to notify Congress within 14 days when a court has ordered sanctions against EEOC. The IG must also conduct a thorough investigation of why the agency brought the case, and submit a report to Congress within 90 days of the court’s decision explaining why sanctions were imposed. In addition, the bill would require the EEOC to submit a report to Congress within 60 days of the court’s decision detailing steps EEOC is taking to reduce instances in which it is subject to court-ordered sanctions; further, the EEOC would have to post this report to its website within 30 days of submitting to Congress.

Implications for Employers

The proposed bill is one measure of the degree of frustration that stakeholders have with the job the EEOC is doing. While no one questions the importance of the Commission’s mission to root out and eradicate employment discrimination, many question the manner in which the EEOC has wielded its power. Employers should stay tuned, as future chapters in this debate are sure to be written in the coming months.

This blog previously appeared on the Seyfarth Shaw website.

Canada Approves National Bitcoin Regulation

Canada bitcoin regulation

In our May cover story, “Making Cents of Bitcoin,” I wrote about the risks of bitcoin and other digital currency given the current lack of regulation or oversight. Without more guidance and structure for digital currency, the extreme risks of volatile values and considerable illegal activity are simply too high to generate viable widespread adoption.

As Cyrus R. Vance, district attorney of New York County, said, “Without stronger government oversight in this area I believe we are going to be permitting cybercriminals, identity thieves and even traffickers of child pornography and other criminal actors to operate in what would be a digital Wild West.”

In March, the Monetary Authority of Singapore (MAS) announced plans to require intermediaries that facilitate digital currency exchange to verify customers’ identities and report suspicious transactions. Here in the United States, the Financial Crimes Enforcement Network issued guidance stating that anyone operating an exchange for virtual currencies would be considered to be running a money transmitting business.

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By doing so, FinCEN required exchanges to collect information about customers, as mandated under Bank Secrecy Act regulations intended to prevent transactions through anonymous accounts. The IRS also announced plans to tax bitcoin as income or property, not currency. Yet no country had really taken action to regulate virtual currency.

Now, Canada may become the first nation to try. One provision of a new Canadian budget law amends anti-money laundering and counter-terrorist financing laws to regulate virtual currencies, the Wall Street Journal reported. The measure makes digital currencies subject to the same reporting requirements as other money-services businesses.

According to the WSJ:

In addition to the money services business treatment, digital-currency exchanges will have to register with the Financial Transactions and Reports Analysis Centre of Canada, or Fintrac. With that registration comes requirements to report suspicious transactions, keep certain records, implement compliance programs and determine if any of their customers are politically exposed people. And the law is extraterritorial: It captures foreign companies that have a place of business in Canada and those directing services at Canadians.

“Canada approving a national Bitcoin law as a matter of anti-money laundering law should not be discounted,” Canadian barrister and solicitor Cristine Duhaime wrote on her firm’s website. “It is important not only because it may be the first Bitcoin national law but also because most countries may now follow suit because of their membership in the Financial Action Task Force.”

The FATF is an international body that sets standards on anti-money laundering and counter-terrorist financing policy. Failure to comply with those standards can result in a country being blacklisted as high-risk or uncooperative, making it more expensive and more difficult to do business with member states.

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According to Duhaime, the five most important aspects of the new legislation are:

  1. Regulates Bitcoin as MSB – Bitcoin dealing, more specifically referred to as “dealing in virtual currencies” in Bill C-31, will be subject to the record keeping, verification procedures, suspicious transaction reporting and registration requirements under the PCMLTFA as a money services business.
  2. Does not define “dealing in virtual currencies” – The phrase “dealing in virtual currencies” was left undefined and it is not known what the defined term will encompass in terms of business activities once defined by regulation.
  3. Registration with FINTRAC – Bitcoin dealers will be required to register with FINTRAC and if successfully registered, to implement a complete anti-money laundering compliance regime.
  4. Captures foreign Bitcoin companies targeting Canada – Bill C-31 extends to: (a) entities that have a place of business in Canada; and (b) entities that have a place of business outside Canada but who direct services at persons or entities in Canada. Bitcoin businesses in Canada, however, that provide services to persons or entities outside of Canada are exempt from Bill C-31 for those external services.
  5. Prohibits banks from opening accounts for Bitcoin entities if unregistered – Under Bill C-31, banks will be prohibited from opening and maintaining correspondent banking relationships with Bitcoin dealers that are not registered with FINTRAC. This is an extremely important aspect of Bill C-31 and Bitcoin businesses should ensure they understand what a correspondent banking relationship is and how it can affect the provisions of banking services to them.

Implementation of the new Canadian law may take up to a year, Dunhaime wrote.

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Yeager Airport Added to W.Va. Chemical Spill Lawsuit

A consolidated class-action complaint contends that poor management of a construction project extending runways at Yeager Airport created conditions causing runoff, contributing to the January chemical leak that left hundreds of thousands of West Virginians without water.

The West Virginia Gazette reported that in the complaint, filed June 20 in federal court, plaintiffs allege the airport’s runway extension project, which began in 2004, created storm water runoff that disturbed the Freedom Industries tank farm. This eventually led to the failure of the tank that leaked 4-methylcyclohexane methanol (MCHM) and PPH (polyglycol ethers), chemicals, mostly used to clean coal.

The chemical leak began on Jan. 9, when authorities discovered that 7,500 gallons of chemicals had leaked from an aging storage tank into the nearby Elk River.

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Gov. Earl Ray Tomblin issued a State of Emergency for Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam and Roane counties. Up to 300,000 residents were affected and hundreds were sickened. Dozens of lawsuits have been filed since the coal-cleaning chemical contaminated the region’s water supply.

The complaint, filed by residents and businesses affected by the spill, states that, “erosion of the tank’s foundation and the increased water on the tank site and the associated process of repeated wetting and drying of the tank bottom, which resulted from the Airport’s runway extension project and the lack of associated or adequate storm water controls, significantly caused or contributed to the MCHM tank’s failure in January 2014.”

The new complaint also names Triad Engineering as a defendant. Triad worked for the airport on the extension project, which had numerous problems from the start. The complaint states that the airport and Triad “did not design or plan for any permanent storm water detention or retention structures following completion of the runway extension project.

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According to the lawsuit, storm water controls that were installed were inadequate to control the excess storm water caused from construction.