PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
Impact Fund & AMICI Urge Sixth Circuit to Affirm Class Certification in Discriminatory Water Billing Case
In October 2024, the Impact Fund and fellow amici Bet Tzedek Legal Services, Centro Legal de la Raza, Legal Aid at Work, and Public Counsel, filed a brief urging the Sixth Circuit to uphold the federal district court’s certification of a class of Black Cleveland residents who brought a lawsuit alleging discriminatory water billing practices by the City.
IMPACT FUND & AMICI to CALIFORNIA COURT OF APPEAL: PROTECT CATALYST FEES
In June, Impact Fund filed an amicus brief on behalf of thirty-six other public interest law organizations in San Diego Tenant Union et al. v. San Diego Housing Commission et al., in the California Court of Appeal. Our brief asked the Court to affirm the availability of catalyst fees to plaintiffs' counsel in successful public interest lawsuits because nonprofit legal services organizations rely upon the fee-shifting provisions of catalyst fees to undertake important litigation. “Catalyst fees” are a legal mechanism by which defendants pay plaintiffs attorneys’ fees when plaintiffs’ lawsuit induces defendants to provide the relief sought by plaintiffs—in other words, when plaintiffs’ lawsuit “catalyzes” defendants’ change in conduct.
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.
Female athletes from James Campbell High School score class certification after Ninth Circuit Appeal
When several students and parents from the girl’s water polo team flagged concerns of gender discrimination, the DOE retaliated against the class. The administration threatened to cancel the water polo season, increased scrutiny of the team, and mysteriously lost required team paperwork. This retaliatory conduct and the stark inequality between male and female athletes at Campbell are out of bounds under Title IX. In an upset, the District Court denied class certification in 2019 finding that the class failed to meet numerosity standards and, for the class-wide retaliation claims, that plaintiffs failed to show typicality and commonality.
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 Support State Efforts to Protect Vulnerable Workers During Deadly Pandemic
The California Department of Industrial Relations, Division of Occupational Safety and Health has a duty to keep California workers safe. Our amicus briefs make clear that the state fulfilled its duty in this instance. The Emergency Temporary Standards provide basic, necessary workplace protections for all workers and serve as an important step toward mitigating the health, income, and racial inequities caused by the COVID-19 pandemic.
Impact Fund and Legal Aid at Work Settle Workplace Harassment Claims of Transgender San Francisco Police Sergeant
Refusing to use a transgender worker’s chosen name and appropriate pronouns violates California law, which forbids harassment or discrimination against a transgender employee because of their gender identity. “The harmful misgendering that Sergeant Paul experienced created a hostile work environment and interfered with his ability to perform his job. That’s harassment, and it is illegal,” said Lindsay Nako, the Impact Fund’s Director of Litigation and Training.
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.
Impact Fund to Ben Carson: Don’t Eviscerate Disparate Impact Rule That Protects Against Housing Discrimination
The Trump Administration has proposed a revised regulation that eviscerates the Fair Housing Act’s protections and undermines the civil rights promises of the Fair Housing Act. HUD says that its proposal aligns the rule with judicial interpretations of disparate impact law, including Inclusive Communities, but it does nothing of the sort. Instead, the rule incorrectly twists the language of the Supreme Court and runs roughshod over settled case law on disparate impact. Should the rule come into effect, it would severely roll back these protections for our most vulnerable communities, and it would allow discriminatory conduct to flourish.
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.
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
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.
Transgender Vets Left Out In The Cold - Impact Fund & Allies File Amicus Brief
Last month, Lambda Legal and Transgender Law Center appealed the Secretary’s denial of the petition to the Federal Circuit, arguing in part that the denial of coverage for sex reassignment surgeries is sex discrimination that violates the Equal Protection Clause of the Fifth Amendment. We agree. Standing in solidarity, we have authored an amicus brief.