18th Annual Workplace Class Action Report - 2022 Edition

558 Annual Workplace Class Action Litigation Report: 2022 Edition state law claims. As to the claims themselves, Defendant asserted that Plaintiffs failed to demonstrate that they were entitled to injunctive relief or restitution under the UCL. The Court agreed with Defendant in light of the fact that Plaintiffs pled no facts showing that they were suffering any ongoing harm or that their injuries were the type typically compensable by restitution. The Court also dismissed Plaintiffs’ wrongful termination claim, which requires a party to show that they were terminated in retaliation for engaging in a protected activity. Here, Plaintiffs’ complaint did not reference participation in any protected activity, so the Court concluded that this allegation failed under California law. Concerning the breach of fiduciary duty claim, the Court found that Plaintiffs failed to demonstrate the presence of a legally cognizable fiduciary relationship. Id. at *32. Namely, the Court only identified conclusory allegations regarding the presence of a fiduciary relationship, and “[P]laintiffs fail[ed] to point to any specific provision of the CARES Act that gives rise to a fiduciary relationship.” Id. at *33. Thus, the Court denied Plaintiffs’ motion to remand and granted Defendant’s motion to dismiss. Sha-Poppin Gourmet Popcorn LLC, et al. v. JPMorgan Chase Bank, N.A., 2021 U.S. Dist. LEXIS 149923 (N.D. Ill. Aug. 10, 2021). Plaintiffs, two local businesses, filed a class action alleging that Defendant failed to provide fair and equitable delivery of Paycheck Protection Program (“PPP”) loans for small businesses which were guaranteed by the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") in order to mitigate the economic impact of COVID-19-related shutdowns. Plaintiffs asserted that despite regulations requiring private lenders like Defendant to process PPP loan applications on a "first-come, first-served" basis, Defendant instead gave preferential treatment to certain large or politically connected customers. Plaintiffs brought claims for fraudulent concealment, tortious interference with prospective economic advantage, and unjust enrichment, as well as a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act. Defendant moved to compel arbitration of Plaintiffs’ claims pursuant to the deposit account agreement (“DAA”) that Plaintiffs signed when applying for the loan, its digital services agreement (“DSA”), and its online services agreement ("OSA"), all of which contained provisions agreeing to submit any claims to binding individual arbitration. Plaintiffs did not dispute that they are bound by the deposit account agreement, but argued that Defendant failed to carry its burden to show that they assented to the online services agreement and digital services agreement. Thus, Plaintiffs contended that since their claims concerned Defendant’s administration of the PPP loan program rather than their deposit accounts, they were beyond the scope of the DAA’s arbitration clause. Defendant asserted that the DAA’s arbitration clause used very broad language, i.e. , "arising from or relating to this agreement" and "any dispute relating in any way to your account or transactions." Id . at *11. Defendant contended that regardless, the question should be answered by an arbitrator, and not by the Court because the DAA’s arbitration clause clearly and unmistakably delegated arbitrability by incorporating the rules of the American Arbitration Association ("AAA") and JAMS Mediation, Arbitration and ADR Services ("JAMS"). Id. at *12. Plaintiffs asserted that they were unsophisticated consumers as they did not have a lawyer review the DAA and they were small businesses of less than five people and therefore incorporating the AAA’s rules did not evince the parties’ clear and unmistakable intent to delegate arbitrability. The Court disagreed. It opined that incorporating the AAA’s rules into a contract clearly and unmistakably delegated arbitrability to the arbitrator. The Court therefore granted Defendant’s motion to compel arbitration. Shiflett, et al. v. Viagogo Entertainment, 2021 U.S. Dist. LEXIS 206679 (M.D. Fla. July 16, 2021). Plaintiff, a ticket purchaser, filed a class action alleging breach of contract, violation of Florida’s Deceptive and Unfair Trade Practices Act ("FDUTPA"); conversion; and unjust enrichment in connection with Defendant’s alleged failure to provide refunds for tickets to evens that were cancelled due to the COVID-19 pandemic. Plaintiff filed a motion for class certification pursuant to Rule 23, and the Court denied the motion. Plaintiffs sought an order requiring Defendant to: "(i) enforce the Terms and communications regarding refunds issued by Defendant; (ii) cease issuing "credits" or "vouchers" in lieu of timely cash refunds to any class member who has not requested such credits or vouchers; and (iii) pay damages and restitution to Plaintiff and the class members.” Id . at *2. Following the COVID-19 related shutdowns, Defendant provided a "Coronavirus (COVID-19) Update" section on its website’s terms and conditions, which informed buyers that they "do not have to do anything," but will be "entitled to a full refund or a 125% voucher." Id . at *6. For most of 2020, Defendant did not initiate refunds for buyers who requested them until up to six months after an event was cancelled. Plaintiff requested certification of two classes, including: (i) a cancelled event class that consisted of all ticket purchasers of cancelled events who did not receive cash refund within 30 days after the event was cancelled; and (ii) a postponed event class of all ticketholders of events that did not occur within 90 days of the originally scheduled date and Defendant did