18th Annual Workplace Class Action Report - 2022 Edition

642 Annual Workplace Class Action Litigation Report: 2022 Edition Sitzer, et al. v. National Association Of Realtors , 2021 U.S. App. LEXIS 27244 (8th Cir. Sept. 10, 2021). Plaintiffs, two homeowners, filed a class action alleging that Defendants, a group of real-estate entities, engaged in anticompetitive practices in violation of the Sherman Act. Defendant HomeServices filed a motion to compel arbitration of Plaintiffs’ claims pursuant to a listing agreement they signed containing an arbitration provision. The District Court denied the motion because it found that HomeServices was not itself a party to the listing agreement, and that it waived its right to arbitration by actively litigating the case for over a year. On appeal, the Eighth Circuit affirmed the District Court’s ruling. The Eighth Circuit explained that waiver occurs when: (i) a party knows of an existing right to arbitration; (ii) acts inconsistently with that right; and (iii) prejudices the other party with inconsistent acts. Id . at *6. The Eighth Circuit reasoned that HomeServices aggressively litigated against Plaintiffs’ claim before the District Court by filing several motions to dismiss and motions to transfer venue. The Eighth Circuit noted that by filing the motion to dismiss, Defendant "sought a final decision from the District Court [on] the merits of the parties’ dispute," which the Eighth Circuit had previously held is "inconsistent with resolving the case through arbitration." Id . at *7. Further, the Eighth Circuit opined that HomeServices had negotiated a proposed scheduling order and participated in a scheduling hearing, replied to written discovery, filed an answer, and joined a motion to amend the scheduling order it had previously negotiated. The Eighth Circuit concluded that HomeServices could not compel Plaintiffs to arbitrate a case that it had already litigated for nearly a year. The Eighth Circuit therefore affirmed the District Court’s ruling denying Defendants’ motion to compel arbitration. Smorowski, et al. v. Domino ’ s Pizza, LLC, 2021 U.S. Dist. LEXIS 191447 (C.D. Cal. July 23, 2021). Plaintiffs, a group of pizza restaurant customers, filed a class action alleging that Defendant’s website advertised a “Mix and Match” deal that purported to give a discount when purchasing more than one item on a specified list, but did not actually result in a discounted cost to consumers. Id . at *2-3. Plaintiffs brought claims alleging violation of the California Consumers Legal Remedies Act ("CLRA"), Unfair Competition Law ("UCL"), and False Advertising Law ("FAL"), as well as for breach of express warranty, unjust enrichment, and fraud. Defendant moved to compel arbitration of Plaintiffs’ claims pursuant to an arbitration agreement contained on Defendant’s website, which a user must click to accept when making an order using the site. Plaintiffs did not argue that they used the website to make some purchases, and that they agreed to arbitrate claims covered from website purchases. Instead, they contended that they never entered into a contract agreeing to arbitrate disputes arising from their in-person purchases, which were the only purchases at issue in the action. After having determined that Plaintiffs’ arguments ( i.e. , that they did not agree to arbitrate claims arising from their in-person purchases must be analyzed to determine if they were in the scope of the arbitration clause), the Court turned to whether a judge or an arbitrator must decide the issue of scope. The agreement stated that the customer agreed “that any claim, dispute, and/or controversy arising out of or relating in any way to your use of the Websites or the Applications, any products sold by Domino’s Pizza through the Websites or Applications, these Terms of Use, or the scope or validity of this arbitration agreement shall be submitted to and resolved exclusively by binding arbitration, rather than in Court." Id . at *19. The Court held that the delegation provision included in the agreement was sufficiently "clear and unmistakable" evidence of the parties’ intent to arbitrate the issue of arbitrability. Id . at *20. Therefore, because the agreement unambiguously stated that disputes relating to "the scope or validity of this arbitration agreement shall be submitted to and resolved exclusively by binding arbitration, rather than in Court," the Court determined that Plaintiffs agreed to delegate threshold issues of scope to an arbitrator. Id . For these reasons, the Court granted Defendant’s motion to compel arbitration of Plaintiffs’ claims. Snow, et al. v. Eventbrite, Inc. , 2021 U.S. Dist. LEXIS 167227 (N.D. Cal. Sept. 2, 2021). Plaintiffs, a group of purchasers who brought tickets to events sold by Defendant, filed a class action alleging breach of contract claims against Defendant after it failed to refund the tickets in the wake of the events being cancelled due to COVID-19. Defendant previously had filed a motion to compel arbitration of Plaintiffs’ claims and the Court denied the motion. It found that Defendant failed to submit evidence of the exact agreements in its terms of service that Plaintiffs actually saw and agreed to when they purchased their tickets. Defendant subsequently filed a renewed motion to compel arbitration of Plaintiffs’ claims, and included screenshots and evidence supporting the motion that Plaintiffs agreed to terms of service, which included valid agreements to arbitrate. The Court granted the renewed motion. The Court found that Defendant produced several versions of the terms of service Plaintiffs would have agreed to in setting up an online profile and purchasing the tickets. The terms of service all contained arbitration provisions requiring that any disputes go to arbitration. Defendant also offered a