18th Annual Workplace Class Action Report - 2022 Edition

638 Annual Workplace Class Action Litigation Report: 2022 Edition that Flex drivers made on a closed Facebook board in violation of the federal Wiretap Act and the Stored Communications Act. Defendant filed a motion to compel arbitration of Plaintiff’s claims pursuant to the Flex Terms of Service that Plaintiff assented to as a condition of making deliveries. The Court denied the motion. Plaintiff asserted that his claims did not fall within the scope of the arbitration provision. Plaintiff contended that he and many of the other approximately 800 Flex drivers formed or joined private Facebook groups to discuss "a myriad of issues surrounding their employment," including strikes, protests, pay, benefits, deliveries, working conditions, and unionizing efforts. Id . at *26-27. Plaintiff claimed that Amazon had been wiretapping these closed Facebook groups "to secretly observe and monitor Flex Drivers’ electronic communications and confidential postings in their closed Facebook groups, through the use of monitoring tools, automated software, and dedicated employees with backgrounds in signals intelligence and communications intelligence." Id . at *27. The California Invasion of Privacy Act and the federal Wiretap Act prohibit the unauthorized interception of a communication and the manufacture, possession, or sale of any eavesdropping device. The Stored Communications Act prohibits unauthorized "access" to "a facility through which an electronic communication service is provided." Id . The Court held that the claims alleged Plaintiff’s complaint arose from Defendant’s alleged intrusion into Plaintiff’s private Facebook groups, and thus "exist independently" of Plaintiff’s employment relationship with Defendant. The Court concluded that Defendant’s alleged wrongs did not relate to the Terms of Service, Plaintiff’s participation in the Flex program, or Plaintiff’s performance of services. Id . at *29. Accordingly, the Court concluded that Plaintiff met his burden to demonstrate that the claims alleged did not fall within the scope of the arbitration provision. The Court therefore denied Defendant’s motion to compel arbitration of Plaintiff’s claims. KPH Healthcare Services, et al. v. Janssen Biotech, 2021 U.S. Dist. LEXIS 196095 (D.N.J. Oct. 12, 2021). Plaintiff filed a class action alleging that the seller of cancer drug brand-named Zytiga, Janssen Biotech ("Janssen"), along with BTG International Limited ("BTG"), obtained a follow-on patent that was later invalidated. Plaintiff contended that Janssen’s actions violated antitrust laws, and sought to represent a class of direct purchasers of Zytiga who allegedly overpaid for the drug during the period in which Janssen’s actions delayed the entrance of generic versions of Zytiga into the market. Id . at *5. Defendants moved to compel arbitration and the Court granted the motion. The Court found that the parties’ arbitration agreement clearly and without ambiguity covered Plaintiff’s claims against Janssen. The Court further determined that Plaintiff’s claims against BTG could be arbitrated through equitable estoppel, as BTG and Janssen had a close relationship, as licensee and licensor, and the claims against both were fully intertwined. The Court ruled that the licensee/licensor relationship between Janssen and BTG was analogous to the parent/subsidiary agency relationship. If Plaintiff had not purchased the drug under the agreement, "no cause of action against any Defendant would arise." Id. at *25. For these reasons, the Court granted the motion to compel arbitration. McCoy, et al. v. Google, Case No. 20-CV-5427 (N.D. Cal. Nov. 9, 2021). Plaintiff filed a class action alleging Defendant illegally harvested third-party app data to gain an advantage over rivals. Defendant moved to compel arbitration of Plaintiff’s claims based on his purchase of a Google Pixel XL smartphone. Defendant asserted that the claim was subject to an arbitration agreement and class action waiver. Plaintiff argued that Defendant waived its right to compel arbitration because it moved to dismiss the complaint and engaged in settlement communications prior to filing the motion. Defendant claimed that it was not aware that Plaintiff owned a Pixel XL smartphone until he filed the first amended complaint, and therefore it was not aware that the claims were subject to arbitration. The Court found that Plaintiff could not meet the heavy burden of demonstrating that Defendant had knowledge of an existing right to compel arbitration and waived it. The Court further held that Plaintiff entered into a valid arbitration agreement when he purchased the smartphone, and therefore it granted Defendant’s motion to compel. McCoy v. Walmart, Inc., 13 F.4th 702 (8th Cir. 2021). Plaintiffs filed a class action alleging that they purchased gift cards that had been deactivated and thereby had no value. Defendant filed several motions to dismiss after removing the action to the District Court. After Plaintiffs served Defendant with their discovery requests, Defendant responded by moving to amend its answer to add arbitration as an affirmative defense. The District Court granted the motion to amend, but refused to compel arbitration based on its finding that Defendant waived its right to arbitration. On appeal, the Eighth Circuit affirmed the District Court’s ruling. The Eighth Circuit agreed with the District Court that Defendant took actions in the litigation that were inconsistent with its right to arbitrate,