18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 697 counsel Robert C. Hilliard and Hilliard Martinez Gonzales LLP ("HMG"), seeking sanctions for improper advertising and for violation of the protective order in the case. The Court granted both motions. The Court determined that the record showed that HMG was responsible for disseminating advertising that falsely claimed that Defendant provided no warnings about the medications side effects, falsely stated that the FDA approved Truvada in 2012, and misleadingly implied that cash settlements were available. Id . at *17. The Court observed that making false statements in attorney advertising harms the legal profession as a whole and damages the credibility of the lawyers making or authorizing the statements. Id . at *17-18. The Court reasoned that because HMG took down the advertisements, it would not enter an order enjoining HMG from engaging in further false or misleading advertising. However, since HMG did not remove the advertisements until instructed to do so, the Court ordered HMG to disclose to Defendant copies of all advertising related to this case. In addition, the Court noted that Plaintiffs filed on the public docket several documents that contained information designated as confidential by Defendant and subject to the protective order. The Court therefore imposed sanctions for the violation of the protective order under Rule 37(b) to compensate Defendant for reasonable fees incurred in addressing the violation of the protective order. The Court directed the parties to determine an appropriate monetary sanction and to provide sufficient documentation to allow the Court to determine its reasonableness. For these reasons, the Court granted Defendant’s motion for sanctions. Hornady, et al. v. Outokumpu Stainless United States, 2021 U.S. Dist. LEXIS 22385 (S.D. Ala. Feb. 4, 2021). Plaintiffs, a group of employees, filed a collective action alleging that Defendant failed to pay overtime compensation in violation of the FLSA. Plaintiffs filed a motion to strike Defendant’s affirmative defenses to Plaintiffs’ third amended complaint because: (i) some of the defenses previously had been ordered stricken as a sanction; and (ii) the remaining defenses had either been waived or were legally deficient. The Magistrate Judge recommended that the motion be granted in part and denied in part. Plaintiff contended that five of Defendant’s affirmative defenses should be stricken because the Court ordered them to be so previously due to Defendant’s failure to comply with the scheduling order. Defendant did not contest that the defenses were the same as those asserted in response to Plaintiffs’ second amended complaint, but it contended that it should be able to assert them now because Plaintiffs substantively changed their complaint. The Magistrate Judge noted that Defendant failed to cite any authority to support its argument that a party’s amended pleading could nullify a previously imposed sanction. Id . at *3-4. For these reasons, the Magistrate Judge found that the third amended complaint did not affect the sanctions previously entered by the Court. Plaintiffs also moved to strike the remaining affirmative defenses as either waived or legally insufficient. The Magistrate Judge recommended denying the motion in this respect because there was a danger that in striking a portion of a pleading it would inadvertently strike relevant material or thereby fail to address a relevant dispute. Id. at *5-6. The Magistrate Judge reasoned that Plaintiffs made no showing of prejudice by the inclusion of the allegedly deficient affirmative defenses. The Magistrate Judge thus recommended that Defendant’s first, third, fourth, ninth, and tenth affirmative defenses be struck from the answer and that the motion be denied in all other respects. The Magistrate Judge therefore recommended that Plaintiffs’ motion be granted in part and denied in part. In Re Gold King Mine Release In San Juan County, Colorado On August 5, 2015, Case No. 18-MD-2824 (D. N.Mex. Aug. 12, 2021). Plaintiffs, the Navajo Nation and the State of New Mexico, filed a class action alleging injuries and seeking damages in connection with an incident where Environmental Protection Agency (“EPA”) contractors triggered the release of three million gallons of yellow wastewater from the Gold King Mine in southwest Colorado into the Animas and San Juan rivers. Plaintiffs filed a motion for sanctions due to the Federal Defendants’ alleged spoliation of evidence. The Court granted in part the motion. Plaintiffs asserted that in the months following the incident, after the Federal Defendants were subject to a litigation hold of all electronically-stored material relating to the Gold King Mine, electronically store information including emails and texts were not retrieved and produced from two EPA employees’ devices who were onsite coordinators during the incident. The devices in question were restored to factory settings due to passwords being forgotten and being unable to access. The Federal Defendants asserted that they made extensive productions, and that the sources were redundant such that it was unlikely any unique and material ESI was lost. The Federal Defendants further contended that it provided Plaintiffs over 700,000 electronic documents, and that the loss of these items was not prejudicial to Plaintiffs. The Court found that spoliation sanctions were proper. The Court ruled that the EPA issued a litigation hold six days after the incident, but given the magnitude of the situation, the Federal Defendants should have known on the date it happened that litigation was imminent. The Court thus determined