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Ill. Court: Non-Injured Plaintiffs Cannot Sue for Violations of Consumer and Workplace-Related Laws

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In Maglio v. Advocate Health and Hosps. Corp., (Ill. App. Ct. June 2, 2015), the Illinois Appellate Court was asked to decide whether individuals have standing to bring suit for violations of consumer data protection laws where their personal data, while compromised, has not been used to harm the individuals. The Illinois Appellate Court, in holding that such individuals do not have standing, established that, at least in Illinois, plaintiffs who suffer no concrete harm, but instead allege only technical statutory violations, cannot sue for violations of consumer and, presumably, workplace-related laws.

The decision of the Illinois Appellate Court could have implications beyond Illinois. As we previously reported, the U.S. Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins (U.S. Apr. 27, 2015). In the Spokeo matter, the U.S. Supreme Court will confront a nearly identical issue: Do individuals have standing to sue for violations of the Fair Credit Reporting Act (FCRA) even when they have not suffered any harm or injury? If the U.S. Supreme Court reasons in the same way that the Illinois Appellate Court did and answers this question “no,” the decision would likely discourage the current wave of consumer, workplace, and other class actions seeking millions in statutory damages.

Case Background

Advocate is a network of hospitals and doctors. On July 15, 2013, burglars stole four computers from Advocate’s administrative building that contained the personal information of about four million of Advocate’s patients. Advocate notified these patients of the theft on August 23, 2013.

Two sets of plaintiffs filed class actions against Advocate, claiming that Advocate violated two state consumer data protection laws by failing to maintain adequate procedures to protect the personal information of plaintiffs and putative class members and by failing to notify the plaintiffs and putative class about the breach in a timely matter. The plaintiffs also sued Advocate on theories of negligence and invasion of privacy.

Advocate moved to dismiss both class actions, arguing that the plaintiffs lacked standing because they had not suffered any injury as a result of their data being stolen. Both trial courts dismissed the class actions. The trial courts found that “[t]he increased risk that plaintiffs will be identity theft victims at some indeterminate point in the future . . . . did not constitute an injury sufficient to confer standing,” and that the plaintiffs’ “allegations concerning anxiety and emotional distress . . . . were insufficient to establish standing, where they were not based on an imminent threat.” The plaintiffs appealed.

Appellate Court’s Decision

The Appellate Court pointed out that, under Illinois law, a plaintiff only has standing if he or she has suffered “some injury in fact to a legally cognizable interest. [T]he claimed injury may be actual or threatened and it must be: (1) distinct and palpable; (2) fairly traceable to the defendant’s actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief.”

The Appellate Court then considered whether the plaintiffs had suffered a “distinct and palpable” injury under Illinois law. It found, in light of Chicago Teachers Union, Local 1 v. Bd. of Educ., – a case in which the Illinois Supreme Court held that physical education teachers did not have standing to challenge a statute allowing school districts to waive mandatory physical education requirements because the teachers were not “in immediate danger of sustaining a direct injury as a result of enforcement of the challenged statute that is distinct and palpable” – that the plaintiffs’ allegations of injury were speculative and the plaintiffs thus did not have standing to bring suit.

The Appellate Court reasoned that this result was supported by federal case law on standing. It observed that, “[i]n federal courts, to show standing under Article III of the Constitution, a plaintiff must establish the existence of an injury that is: (1) concrete, particularized, and actual or imminent; (2) fairly traceable to the challenged action; and (3) redressable by a favorable ruling.”  To meet the first requirement, “an ‘allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” (quoting Susan B. Anthony List v. Driehaus, 2014). “Allegations of possible future injury are not sufficient,” nor is an “objectively-reasonable-likelihood” that the future injury will occur.

The Appellate Court went on to find that an increased risk of harm is not sufficient to confer standing. While agreeing that the Seventh Circuit appears to have held that an increased risk of harm can confer standing in Posciotta v. Old Nat’l Bank Corp., it found that the later-decided Clapper case compelled rejection of this position. (Citing Strautins v. Trustwave Holdings, Inc., (N.D. Ill. 2014).

Finally, the Appellate Court found that alleged “appreciable emotional injury” did not confer standing on the plaintiffs. Specifically, the Appellate Court found that, because the purported emotional injury did not flow from an “imminent, certainly impending, or substantial risk of harm,” it could not, on its own, confer standing.

Implications for Employers

This case is welcome news for Illinois employers, who can use this case to defeat consumer and workplace class actions based on technical violations of state laws without any resulting harm to consumers or employees. Outside of Illinois, if the U.S. Supreme Court interprets federal standing requirements as the Illinois Appellate Court did, employers could be handed a significant win in the Spokeomatter. If Spokeo is decided as Maglio, employers nationally should have a powerful tool to achieve dismissal of class action lawsuits based on technical violations of both federal and state consumer and worker protection laws. Stay tuned.

This column previously appeared on the Seyfarth Shaw LLP website.

EEOC Settles its First Transgender Suit Filed Under Title VII

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As we previously reported, the EEOC has decided to pursue protections for transgender workers under Title VII’s prohibition against sex discrimination and harassment as part of its strategic mission, even though no federal statute, including Title VII, explicitly prohibits employment discrimination based on gender identity or expression.

To this end, the EEOC filed two lawsuits on Sept. 25, 2014 on behalf of transgender workers –EEOC v. Lakeland Eye Clinic, P.A. (Middle District of Florida, Tampa Division) and EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (Eastern District of Michigan, Southern Division) — on behalf of transgender workers.

On April 9, Judge Mary S. Scriven of the U.S. District Court for the Middle District of Florida approved a consent decree entered into between the EEOC and Lakeland Eye Clinic, P.A. settling one of the two lawsuits. The terms of the Consent Decree, including the nature of the programmatic relief required by the EEOC make it crystal clear that this is an area that the EEOC will continue to pursue in 2015 and beyond.

Case Background

In EEOC v. Lakeland Eye Clinic P.A., the EEOC claimed that an organization of healthcare professionals fired an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The complaint alleged that even though the claimant had been performing her duties satisfactorily, she was terminated soon after she began presenting as a woman and informed her employer that she was transgender.

Terms of the Consent Decree

The EEOC and Lakeland Eye Clinic, P.A. reached a settlement during the course of discovery. In full and complete settlement of the claims raised by the EEOC, the parties entered into a Consent Decree which Judge Scriven approved on April 9. The following are highlights of the terms of the Consent Decree:

  • Total payment of $150,000 to the aggrieved employee as well as a neutral letter of reference
  • Revised employer discrimination and harassment policies stating that no employee will be terminated (or harassed) “based on an employee’s status as transgender, because of an employee’s transition from one gender to another, and/or because the employee does not conform to the Defendant’s sex or gender-based preferences, expectations or stereotypes”
  • Managerial and employee training including “an explanation of the prohibition against transgender/gender stereotype discrimination under Title VII” and “guidance on handling transgender/gender-stereotype complaints made by applicants, employees and customers.”
  • Monthly reports to the EEOC every six months certifying compliance with the terms of the Consent Decree
  • Two years of monitoring by the EEOC, including the right to conduct workplace inspections with 24 hours’ notice

Implications for Employers

The theories of liability articulated by the EEOC in this case closely follow the EEOC’s prior landmark administrative ruling titled Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012) (previously discussed here) in which it held that transgender individuals may state a claim for sex discrimination under Title VII.

We expect that EEOC-initiated ligation on behalf of transgendered individuals will continue to increase given the Commission’s enforcement strategy and desire to “push the envelope” in this area. As we previously advised, employers must be mindful of issues related to gender identity and/or expression that might arise during interviewing, hiring, discipline, promotion and termination decisions. Employers should be particularly vigilant when an employee identifies as transgender, or announces a plan to undergo a gender transition. Stay tuned!

This blog was previously posted on the Seyfarth Shaw website here.

EEOC Issues $245 million Probable Cause Determination against NYC

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On April 1, the EEOC’s New York District Office issued a Determination finding probable cause to believe that the City of New York’s Department of Citywide Administrative Services (DCAS) violated Title VII and the Equal Pay Act based on its “pattern of wage suppression and subjective promotion based on…sex, race, and national origin.” In the accompanying conciliation agreement proposal, the EEOC demanded numerous forms of programmatic relief from DCAS (e.g., EEOC monitoring and notice postings) as well as back pay, future pay, compensatory damages and legal fees and costs totaling more than $246 million. For any employer, the EEOC’s position is one that ought to be heeded for “lessons learned….”

The Charge

The Communications Workers of America, AFL-CIO Local 1180 filed a charge of discrimination with the EEOC against DCAS in 2014 on behalf of a class of African-American and Hispanic women who were (or still are) employed as administrative managers in various NYC agencies. The Union asserted that a discriminatory pattern of wage suppression on the basis of sex, race and national origin exists as well as facially neutral policies governing assignment, promotion and wages that have a disparate impact on female African-American and Hispanic administrative managers. To this end, the Union alleged that the minimum salary for administrative managers—which is disproportionately paid to Hispanic and African-American women—has been frozen for many years whereas the maximum salary for administrative managers (positions held primarily by Caucasian males) has increased significantly.

In addition to arguing that the Union did not have standing to file a charge with the EEOC, DCAS denied the allegations of discrimination and provided “a small sample of administrative managers along with their gender, race, agency, salary, and description of their job duties in an attempt to demonstrate that administrative managers do not perform equal work.”

EEOC’s Determination and Proposed Conciliation Agreement

The EEOC agreed with the Union, opening that DCAS’ evidence “was insufficient” and did “not withstand scrutiny.” The EEOC also alleged that DCAS declined to provide certain requested information and “the Commission determines that the silence is an admission of the allegations in the charge, and exercises its discretion to draw an adverse inference with respect to the allegations.”

In addition to its Determination, the EEOC provided a proposed Conciliation Agreement to resolve the charge against DCAS. The Conciliation Agreement, were DCAS to accept it, would require DCAS to, at a minimum, award raises via “an annual step process;” increase the minimum salary for all administrative managers; and agree to “proper oversight, opportunity and enforcement of equal employment,” which would include the appointment of an EEO monitor; amended job descriptions with a revised posting and bidding process; and provision of tuition assistance to union members to “level the playing field” for union members so that they can “effectively compete with their white male colleagues in the workplace.”

With respect to monetary damages the EEOC demanded $188,682,531.00 in back pay, a new starting salary for administrative managers of no less than $92,117.00, $56,922,000.00 in compensatory damages under Title VII, and no less than $1,000,000.00 in legal fees and costs.

The EEOC gave DCAS until April 17, 2015 to provide a written counter-proposal or advise if it did not wish to engage in conciliation. Absent what it deems a “reasonable written counter-proposal” from DCAS, the EEOC warned that it may deem conciliation futile and fail conciliation.

Implications or Employers

The headline grabbing dollar amount requested by the EEOC in this proposed conciliation agreement is certainly staggering and catapults this case into the “one to watch” column. Furthermore, this confirms what we predicted in our EEOC-Initiated Litigation Report – that the EEOC is going to focus this year on recovering large settlements and verdicts to try to make up for low recoveries in fiscal year 2014. As DCAS has already publically stated that it intends on participating in the conciliation process, we will be sure to monitor developments. Stay tuned!

This post can also be found on the EEOC Countdown blog here.

 

Annual Judicial ‘Hellholes’ Report is Out

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Each year the American Tort Reform Association (“ATRA”) publishes its “Judicial Hellholes Report” and examines problems in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice.

The ATRA’s 2014 report was published this morning; a copy is here, as well as an executive summary here.

Insofar as the report identifies and defines a judicial hellhole as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, the Judicial Hellholes Report is an important read for corporate counsel facing class action exposures. In sum, if one has to litigate class actions and make decisions with respect to venue strategy, the Report is a “must read.”

The 2014 Hellholes

The ATRA included seven jurisdictions on its hellholes list – including New York (especially in its treatment of asbestosis litigation in New York City), California, West Virginia, Florida (especially rulings of the Florida Supreme Court), Illinois (especially Madison County, Illinois), Missouri (especially rulings of the Missouri Supreme Court), and Louisiana – where it ranked the venues as the “most unfair” in their handling of civil litigation. Commenting on California in particular, the report asserts that it is characterized by “a generally permissive judiciary that invites wholly absurd lawsuits that clog dockets, even as the state’s perpetually precarious finances have led to sharp cuts in court budgets.”

The 2014 “Watch List”

The ATRA included six jurisdictions on its “watch list,” including New Jersey (especially Atlantic County), Mississippi (in the Delta region), Montana, Nevada, Virginia (principally in the Newport News area), and Pennsylvania (especially in Philadelphia). Just a notch below the seven hellholes, the “watch list” jurisdictions also present significant challenges for corporate defendants.

Implications for Employers

The Judicial Hellholes Report dovetails with the experience of employers in high-stakes workplace class actions, as California, Florida, Illinois, Nevada, New Jersey, New York, and Pennsylvania are among the leading states where plaintiffs’ lawyers file employment discrimination and wage & hour class actions in state courts. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and generous damages recoveries under state laws.

This column was previously posted on the Seyfarth Shaw website.