PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
Impact Fund joins NAACP LDF Amicus Brief defending standing in ADA discrimination case
The brief calls out Acheson’s attempts to argue the merits of Ms. Laufer’s case as a distraction to the straightforward standing inquiry at hand. Standing is a threshold issue that requires plaintiff’s allegations be taken as true. This low bar is cleared by the mere allegation of a concrete injury. Arguments about the merit of Ms. Laufer’s case including whether she experienced the “right type of discrimination” that warrants ADA protection and the degree of emotional harm she suffered are inappropriate to the threshold matter of standing and subject to review in future motions. In summary, Ms. Laufer alleges that she personally experienced discrimination, a harm in itself sufficient for standing, so Ms. Laufer has standing.
Impact Fund Amicus Brief Challenges "One-Size-Fits-All" Approach to Disparate Impact Discrimination
California Department of Health Care Services’ steady decline in reimbursement rates to doctors for standard physician services through the state Medi-Cal program has driven doctors away from the program, denying low-income Californians meaningful access to necessary healthcare. The key to a disparate impact claim is the discriminatory impact resulting from a seemingly neutral policy. Our brief argues that the superior court adopted a dangerously narrow view of disparate impact.
Impact Fund and Allies File Class Action Amicus Brief in Ninth Circuit On Behalf of Seniors and People With Disabilities
The amicus brief authored by the Impact Fund, Disability Rights Advocates, and the Disability Rights Education and Defense Fund argues that the district court’s decision ran afoul of existing case law and will undermine enforcement of ADA access laws in the precise cases where systemwide enforcement is most needed.
Impact Fund and Allies file Amicus Brief to rebuff defamation claims in Class Action litigation
The Impact Fund and amici focused on the panel’s misunderstanding of “ascertainability,” a term of art particular to class actions. Ascertainability is the implied prerequisite that a class be defined by clear and definite terms so that a court can determine who is bound by a judgment and who is entitled to relief. Critical to the issue at hand, ascertainability is a forward-looking inquiry, asking whether a court will be able to ascertain class membership at some future point in the litigation. It has never meant that plaintiffs know who is in the proposed class at the time of filing.
Talking Turkey: Impact Fund Files Amicus Brief To Protect Catalyst Fees For Plaintiffs
In Direct Action Everywhere v. Diestel Turkey Ranch, the plaintiff filed a false advertising lawsuit alleging that Diestel was deceiving customers about the condition in which it kept animals on its properties. Several days into the trial, Diestel voluntarily removed the allegedly false statements from its website as part of a “website refresh.” The trial court denied Direct Action’s motion for catalyst fees for multiple reasons, two of which stood out to the Impact Fund and its allies. First, the court scorned the plaintiff’s reason for bringing the lawsuit and, second, it criticized the plaintiff’s activities outside the courtroom.
Ninth Circuit Panel Decertifies Class of Janitorial & Maintenance Workers: Impact Fund & Amici Urge Rehearing
A certified class of janitorial and maintenance workers survived two motions for decertification, successfully proved employer wrongdoing at summary judgment, and received significant damages in a jury bellwether trial before seeing their efforts undone by the Ninth Circuit. The recent panel opinion in Bowerman v. Field Asset Services, Inc., 39 F.4th 652, 661-63 (9th Cir. 2022), reversed certification after over seven years of litigation as a certified class. In doing so, the panel blatantly ignored the district judge’s repeated conclusion that the case was best managed as a class action.
Impact Fund and Amici: Ninth Circuit’s New “De Minimis” Standard for Predominance Is Wrong and Disadvantages Workers
Our brief argues that the panel’s decision is inconsistent with decades of Supreme Court and Ninth Circuit precedent regarding class certification and trials challenging employment discrimination and other workplace violations, such as wage theft. To require plaintiffs to demonstrate no more than a “de minimis” number of uninjured class members at the class certification stage forces district courts to engage in a full-blown inquiry into the merits of the case, an inquiry which the Supreme Court and the Ninth Circuit have repeatedly stated courts are expressly forbidden to undertake at that stage.
Impact Fund and NAACP Legal Defense Fund to SCOTUS: Don’t Rewrite Typicality
The Impact Fund and NAACP Legal Defense and Educational Fund, Inc. filed an amicus brief in the U.S. Supreme Court on behalf of ourselves and twenty-four civil rights organizations. We argue that Ramirez indisputably satisfied typicality, as every class member in the case presented the same claims, were subject to the same conduct, and sought the same relief as Ramirez did. “TransUnion seeks to turn Rule 23 typicality on its head, asking the high court to rewrite the rule to protect defendants rather than absent class members,” declared Impact Fund’s Executive Director Jocelyn Larkin. “Nothing in the language or purpose of the rule supports TransUnion’s approach.”
Impact Fund & Amici to Eleventh Circuit: Eliminating Service Awards Endangers Class Actions
A recent decision by the Eleventh Circuit Court of Appeals stunned the class action and civil rights community. In Johnson v. NPAS Solutions., LLC, 975 F.3d 1244, a 2-1 majority ruled that service awards for class representatives in class actions are categorically unlawful.On October 29, the Impact Fund filed an amicus brief calling on the full Eleventh Circuit to review the decision en banc. Our amicus brief on behalf of civil rights groups argues that service payments and incentive awards appropriately compensate plaintiffs for the considerable responsibility they undertake in class action cases and on behalf of fellow class members.
SCOTUS Rules that Title VII Protects LGBTQ Employees from Discrimination
The effects of this decision for the LGBTQ community are sweeping. To date, twenty-five states and three territories still do not prohibit employment discrimination on the basis of sexual orientation and/or gender identity. Meanwhile, 25% of LGBTQ workers report experiencing discrimination at work and 80% of transgender workers report experiencing discrimination or taking steps to avoid it. Because of Bostock v. Clayton County, LGBTQ workers in every state and territory are now protected from discrimination and harassment under federal law—meaning they can seek relief through the Equal Employment Opportunity Commission and federal courts. Other communities also stand to benefit from the decision’s unequivocal language declaring the breadth of Title VII’s protections.
Impact Fund and Allies File Amicus Brief Urging SCOTUS to Protect LGBTQ Workers
LGBTQ workers are entitled to the full protections of our nation’s laws. If the Supreme Court rules that Title VII does not prohibit discrimination based on sexual orientation and gender identity, it will create an arbitrary and painful carve-out to the landmark civil rights law, leaving LGBTQ workers vulnerable to discrimination and harassment on the job. The Impact Fund and our allies urge the Court to adopt a uniform, protective standard that will fulfill Title VII’s promise of equal employment opportunity for all.
Impact Fund and Allies File Amicus Brief to Preserve Workers’ Right to Bring Class Actions Under the ADA
Workers discriminated against on the basis of disability must be allowed to join together and use class actions to pursue workplaces free of discrimination, just as Congress intended when it passed the ADA.
California Supreme Court Ponders Digital Discrimination Case, White v. Square
Along with Disability Rights Advocates and the Disability Rights Education and Defense Fund, the Impact Fund has written an amicus brief urging the California Supreme Court to recognize that turning users away through discriminatory terms of service or other actions is illegal discrimination, and that users who are deterred by discriminatory terms should be able to bring legal claims in court.
Why “Ascertainability” in Class Actions Matters: How a Kiddie Pool Could Threaten Workers’ Rights in California.
The heightened and burdensome standard for ascertainability articulated by Sotelo and applied in Noel v. Thrifty Payless, Inc. will prevent meritorious employment class actions and undermine workers’ rights. This result is at odds with California’s strong public policies favoring the class mechanism and the robust enforcement of workers’ rights.
Impact Fund and Allies File Amicus Brief Defending Courts’ Role Protecting Workers During Litigation
Our brief highlights the role afforded to courts to intervene and address the conduct of counsel and parties in litigation. This historical role is especially important in litigation connected to the workplace, where the power imbalance between employers and employees presents unique threats to the rights of employees in the form of coercion and retaliation.
REFUSING TRANS PEOPLE HEALTHCARE SERVICES IS SEX DISCRIMINATION, SAY IMPACT FUND AND ALLES IN AMICUS BRIEF TO IOWA SUPREME COURT
EerieAnna (27) and Carol (42) have identified as female since they were young children, and they have both undergone hormone therapy, psychological care, and the legal processes to change their names and genders. When they tried to undertake sex reassignment surgery, however, their health insurance carriers, managed by Iowa’s state Medicaid program, denied them coverage
A question for Microsoft: How many #MeToo’s does it take?
Sworn statements explained how women at Microsoft are undervalued in comparison to men, are denied opportunities that men receive, are left out of important meetings, and work in a sexualized environment in which male employees stare at women’s breasts, grope them, and comment on their bodies and clothes. One woman explained the pressure that she and other women feel to “hit the sweet spot between being perceived as ‘too timid’ or ‘overly passionate’ and ‘too harsh’ in Microsoft’s male-dominated culture.” Her male manager lowered performance ratings for her and the team of women she supervised because he believed they did not “smile enough.”
Impact Fund Files Amicus On Behalf Of Military's Diabetic Kids
Standing is like a light switch; a plaintiff has either alleged an identifiable injury or not. The concept of Article III standing is used by the courts to distinguish between a dispute that is properly before the court, rather than an abstract interest intended to be addressed by the legislature. Given this, the Supreme Court and the Ninth Circuit have consistently held that a minimal injury is sufficient to confer standing and have never weighed one’s injury relative to their resources.
Impact Fund and allies file amicus brief in support of rehearing in Ahearn v. Hyundai.
As explained in the amicus brief, that decision was an unwarranted departure from well-established precedent that differences between state consumer protection laws do not defeat predominance of common questions as to the defendant’s uniform misconduct. This precedent has facilitated nationwide class action settlements both within the Ninth Circuit and sister circuits for years. As the Impact Fund and their fellow amici explained, “Litigation is costly and time-consuming for plaintiffs, defendants, and the court system alike,” which has led to a “strong judicial policy” in favor of settlements. Contravening this policy, the divided majority panel “added requirements and shifted burdens” that would unfortunately operate to prevent settlement of nationwide claims.
SCOTUS Amicus Brief: Class Actions Vital To Equal Opportunity In Employment
A fair workplace, free from discrimination, is an American ideal. Many of our nations F500 companies reflect this value in their forward-facing materials and practices, but sadly, at the contractual level with workers, the promise of an even playing field gets tilted…
That’s why, on August 17, 2017, together with NAACP Legal Defense & Educational Fund and Cohen Milstein Sellers & Toll PLLC, we filed an amicus brief in the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA.