18th Annual Workplace Class Action Report - 2022 Edition

698 Annual Workplace Class Action Litigation Report: 2022 Edition that the EPA failed to take reasonable steps to preserve the ESI and Plaintiffs were prejudiced by these actions. The Court explained that the lost ESI was relevant to Plaintiffs’ claims. The Court therefore granted Plaintiffs’ request for an order permitting Plaintiffs to introduce evidence of the spoliation at trial. The Court also requested that the EPA submit supplemental briefing regarding the reasons why the ESI spoliation of two of the most important witnesses occurred, what happened to the devices, and further information regarding what steps the ESI custodians took to retrieve the missing data. The Court determined that Defendants’ conduct was not done in bad faith, and thus it denied the request to add a substantive due process claim to the complaint. The Court therefore granted in part and denied in part Plaintiffs’ motion for sanctions. In Re Grupo Televisa Securities Litigation, 2021 U.S. Dist. LEXIS 94906 (S.D.N.Y. May 19, 2021). Plaintiffs, groups of investors in Grupo Televisa SAB, filed a securities class action alleging that Defendants paid bribes to acquire media rights to international soccer matches. The Lead Plaintiff, the Colleges of Applied Arts and Technology Pension Plan ("CAAT"), claimed losses of $968,000 due to the scandal. The Court previously had ordered that Robbins Geller Rudman & Dowd LLP (“Robbins Geller”) serve as lead counsel. Thereafter, the Court became aware of Robbins Geller’s omission to the Court that CAAT also invested in Arrowstreet (Canada) Global World Alpha Extension Fund I, which had shorted Televisa’s ADR’s, a position totaling over $10.94 million, which was roughly three times what CAAT had lost in its own long position. Id . at *3. Due to the omission by Robbins Geller, the Court imposed sanctions by dismissing the Firm as Lead Counsel. The Court found that Robbins Geller made no mention at all of CAAT’s short sales earnings in Televisa when it signed its motion for appointment "as Lead Plaintiff and approval of selection of counsel.” Id . at *4. Robbins Geller also swore that “Lead Plaintiff does not have interests that are antagonistic to the class that he seeks to represent and has retained counsel that is capable and qualified to vigorously represent the interests of the class . . .’" Id . Robbins Geller argued that it did not disclose to the Court CAAT’s returns from its Arrowstreet investment because they were immaterial, and arose from Arrowstreet’s independent investment decisions that CAAT had nothing to do with in terms of the overall case. The Court reasoned that the primary issues in selection of a Lead Plaintiff was whether the applicant was a typical representative of the class of claimants, and who "suffered the greatest financial loss, providing an incentive to prosecute the case vigorously." Id . at *6-7. The Court opined that the material differences between the Lead Plaintiff and the class were predominant, that that Robbins Geller’s decision not to disclose the Arrowstreet trades was knowing and intentional. Id . at *7. The Court ruled that Robbins Geller omitted to state material facts necessary in order to make the statements in its memorandum, in light of the circumstances under which they were made, not misleading. Id . The Court concluded that Robbins Geller’s willingness to submit so misleading a brief, in order to obtain a result for its client which it predictably might not obtain if all relevant facts were addressed, disqualified it from continuing as counsel. For these reasons, the Court imposed sanctions and disqualified Robbins Geller as Lead Plaintiffs’ Counsel. In Re National Prescription Opiate Litigation , Case No. 17-MD-2804 (N.D. Ohio April 19, 2021). In this multi-district litigation ("MDL"), Plaintiffs were a group of approximately 1,300 public entities who filed class actions against manufacturers, distributors, and retailers of prescription opiate drugs seeking to recover the costs of life-threatening health issues caused by the opioid crisis. Bellwether trials were scheduled for a sample of over 2,000 lawsuits involving 34,458 counties, cities, and other public entities nationwide on claims against the opiate industry asserting alleged violations of the Racketeer Influenced Corrupt Organizations Act and the Controlled Substances Act. During discovery, the Court and Special Master issued numerous rulings addressing discovery, which was designated “Ruling Number #22” (“DR-22”) that required Defendants to produce any discovery that they were required to produce in other matters in the MDL on an ongoing basis. Defendants objected to producing prescription dispensing data that they had produced in a Florida state court action. The Court ordered that Defendants produce the information and opined that DR-22 “applied to dispensing data as much as any other discovery.” Id. at 2. Thereafter, Plaintiff moved to compel documents produced by Walmart in an opioid case in Massachusetts court, which Defendants did not submit to the MDL. The Special Master indicated to Defendants that DR-22 trumped every other discovery ruling, and if Defendants produced any materials in another action, it must, within one-week, produce the materials in the MDL. The Special Master opined that the burden of re-production was virtually zero, and thus it granted the motion to compel. Plaintiffs also moved the Court to compel production of documents that Walmart had produced in a Delaware state court, which Defendants did not produce in the MDL. Defendants argued that the cases were not related and that they did not assert the same claims. The Special Master disagreed on the basis that the actions both related to the