18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 639 including filing two motions to dismiss, both on the merits of the claims and on jurisdictional grounds as to out-of- state Plaintiffs. The Eighth Circuit further noted that Defendant engaged in discovery, filed a joint scheduling order, and served initial disclosures. The Eighth Circuit ruled that the delay would unduly burden Plaintiffs should it grant the motion to compel arbitration, as they had litigated substantial issues on the merits and spent time and resources responding to motions to dismiss. For these reasons, the Eighth Circuit affirmed the District Court’s ruling denying Defendant’s motion to compel arbitration. Mey, et al. v. DIRECTV, LLC, 2021 U.S. Dist. LEXIS 51437 (N.D. W.Va. Feb. 12, 2021). Plaintiff, a former consumer of satellite television service from DIRECTV, filed a class action claiming that Defendant made automated telemarketing calls to her phone number in violation of the Telephone Consumer Protection Act (“TCPA”) even though she was registered with the National Do Not Call Registry. Three years before the lawsuit was filed, Plaintiff entered into a cell phone service contract with AT & T Mobility “in which she agreed to arbitrate ‘all disputes and claims’ with AT & T Mobility and its ‘subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns.’” Id. at *2. AT & T Inc. subsequently purchased DIRECTV as a subsidiary corporation. In recognition of Plaintiff’s arbitration agreement with AT & T, Defendant filed a motion to compel arbitration of Plaintiffs’ claims. The Court originally denied Defendant’s motion in 2018, but that ruling was vacated the on appeal on the grounds that the order failed to address the unconscionability issue with respect to the language of the arbitration clause. After remand, Defendant again moved to compel arbitration, and the Court denied its motion for the second time. As an initial matter, the Court labeled AT & T’s cell phone contract as a contract of adhesion, thus warranting greater scrutiny as to whether the contract was unconscionable. The Court also noted that Plaintiff was not permitted to opt-out of or alter the arbitration provision, and that Plaintiff reviewed the contract only on a small electronic pinpad device. In light of the language of the arbitration provision and the circumstances surrounding Plaintiff’s signing of the cell phone contract, the Court found the contract to be unconscionable. The Court opined that a reasonable person in Plaintiff’s situation would have understood the arbitration clause as only governing disputes relating to that contract, and not every potential dispute involving one of AT & T’s many corporate affiliates. For example, the Court highlighted the contract’s “absurd . . . breadth” by pointing out that AT & T’s contract required any unhappy customer to first call AT & T Mobility’s customer service department before initiating arbitration. Id. at *18. The Court questioned why a customer would have to take that step if they were bringing a claim against DIRECTV, HBO, or one of the many other entities falling under AT & T’s corporate umbrella. The Court also held that the contract lacked mutuality, as Plaintiff could not negotiate the terms of the contract and was not knowledgeable about arbitration clauses. Finally, the Court observed that three other decisions had have considered the breadth of the same AT & T arbitration provision, and in all three cases, they did not enforce the provision. For these reasons, the Court denied Defendant’s motion to compel arbitration. O ’ Hanlon, et al. v. Uber Technologies, 990 F.3d 757 (3d Cir. 2021). Plaintiffs, a group of motorized- wheelchair users who lived in the Pittsburgh area and the non-profit Pittsburghers for Public Transit, filed a class action alleging that Defendant discriminated against individuals with mobility disabilities by not offering a "wheelchair accessible vehicle" (“WAV”) option in the Pittsburgh area in violation of the Americans With Disabilities Act (“ADA”). Id . at 760. The District Court previously had denied Defendant’s motion to compel arbitration of Plaintiffs’ claims, finding that they were not bound by Defendant’s “Terms of Use” because they did not download the app, agree to the terms, or request a WAV ride because they did not exist. Id . at 761. On appeal, the Third Circuit affirmed the District Court’s ruling. The District Court reasoned that Plaintiffs’ disability discrimination claim did not rely on Defendant’s Terms of Use, but was instead based on the ADA. The Third Circuit explained that while it had appellate jurisdiction to review the District Court’s denial of the motion to compel arbitration, it had no independent duty to also review its ruling that Plaintiffs had standing to sue. Id . The Third Circuit considered whether the doctrine of pendent appellate jurisdiction provided an alternative basis for it to review the standing ruling. The Third Circuit noted that it had discretion to review an otherwise non- appealable issue under its pendent appellate jurisdiction where: (i) it is inextricably intertwined with the appealable issue; or (ii) review is otherwise necessary to ensure meaningful review of the appealable order. The Third Circuit found that the facts necessary to evaluate whether Plaintiffs had demonstrated standing under the ADA were different from the facts necessary for assessing whether they were bound by Defendant’s Terms of Use, such that pendent appellate jurisdiction was not demonstrated. Finally, the Third Circuit agreed with the District Court that Defendant’s equitable-estoppel argument was without merit. The Third Circuit determined that