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Fourth Circuit Upholds Dismissal of Class Action Complaint; Class Could Have Been Thousands

October 20, 2014

Shadonna Hale (Of-Counsel Baltimore), David Ross (Partner-Washington, DC), Betsy Sandza (Partner- Washington, DC) and Catherine Hanrahan (Partner-Washington, DC) prevailed in the Fourth Circuit Court of Appeals on an appeal of the U.S. District Court of Maryland’s dismissal of a class-action complaint filed against a health care services provider. In an unanimous panel decision, the Fourth Circuit agreed with the entirety of the district court’s decision, dismissing a complaint that sought a class that could have included thousands of plaintiffs.

The plaintiffs claimed that they were subject to illegal employment-related breath-alcohol testing in Maryland, constituting an “intrusion upon seclusion” invasion of privacy, and that other means of testing should have been used. The plaintiffs further alleged that the testing consent form used was fraudulent.The Wilson Elser team argued that the plaintiffs did not have a reasonable expectation of privacy in their breath alcohol content to establish an intrusion upon seclusion, given that the statute at issue permits employment-related alcohol testing. The district court had found that even though breath alcohol testing is not permitted by the statute, employment-related alcohol testing is, precluding an actionable expectation of privacy. In addition to failing to plead an adequate privacy interest, the district court had also agreed that the plaintiffs could not adequately plead the necessary “highly offensive” element to establish a privacy claim, and that even more intrusive means than breath testing are permissible under the statute, such as drawing blood.

The Fourth Circuit agreed, and noted that even if the plaintiffs had a reasonable expectation of privacy in their breath, they could not establish that the breath testing was highly offensive to a reasonable person. The Fourth Circuit, like the district court, endorsed the team’s contention that the fraud claim was deficient because the plaintiffs failed to adequately allege that the testing consent form at issue amounted to an intentional misrepresentation, and that the complaint otherwise lacked the requisite elements of fraud.

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