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Jackson Lewis Class Action Trends Report Fall 2018

Below is a link to the latest issue of the Jackson Lewis Class Action Trends Report. This report is published on a quarterly basis by our firm’s class action practice group in conjunction with Wolters Kluwer. We hope you will find this issue to be informative and insightful. Using our considerable experience in defending hundreds of class actions over the last few years alone, we have generated another comprehensive, informative and timely piece with practice insights and tactical tips to consider concerning employment law class actions. We hope you enjoy!

Class Action Trends Report Fall 2018

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims. This issue covers the following topics:

Supreme Court Hears Oral Argument in Lamps Plus Case

On October 29, 2018, the Supreme Court heard oral argument in the case of Lamps Plus, Inc. v. Varela. At issue in Lamps Plus is what standard should be applied in determining whether parties have agreed to submit claims to class arbitration. The arbitration agreement between Lamps Plus and one of its employees did not contain an explicit waiver prohibiting arbitration of class or collective claims. The Ninth Circuit held that the arbitration agreement was ambiguous as to whether the parties agreed to submit class claims to arbitration. The Court applied a California contract-law principle that any ambiguity is to be construed against the drafter, and therefore held that the arbitration agreement permitted arbitration of the employee’s class claims.

Ninth Circuit Permits Use of “Inadmissible” Expert Testimony for Class Certification Purposes

The U.S. Court of Appeals for the Ninth Circuit just denied a request to review en banc a panel ruling that authorizes trial courts to consider evidence that would be inadmissible at trial when deciding whether a class may be certified (Sali v. Corona Regional Medical Center (D.C. No. 5:14-cv-00985-PSG-JPR)). The decision was filed on Thursday, November 1 over a sharply critical dissenting opinion authored by Judge Carlos Bea. Bea, who was joined by four of his colleagues, wrote that the majority’s decision “involves a question of exceptional importance and is plainly wrong.”

California Updates Breastfeeding Breaks Law

Effective January 1, 2019, California's breastfeeding breaks law will be amended to:

Contracting Around Class Actions, a Win for Employers!

In O’Connor v. Uber Techs., Inc., 2018 U.S. App. LEXIS 27343 (9th Cir. 2018), a unanimous panel in the Ninth Circuit found that Uber’s arbitration agreements did not violate the National Labor Relations Act of 1935 (“NLRA”) and the question of arbitrability was designated to the arbitrator. The ruling provided a major victory to Uber, requiring each plaintiff to separately arbitrate his or her claims.

Class Certification Denied in Physician Equal Pay Lawsuit Under a Blanket Compensation Plan

An Illinois District Court recently denied certification of a class of female physicians claiming that their employer’s pay practices unlawfully discriminated against women in violation of Title VII, the Illinois Equal Pay Act, and the Illinois Civil Rights Act (Ahad v. Board of Trustees of Southern Illinois University).

Settling Plaintiff May Still Have Standing And Adequacy To Pursue Class Action and PAGA Claims

A California federal judge recently certified a class of at least 843 Cinemark workers who allege Cinemark, a movie theater chain, failed to properly list overtime rates on employee wage statements, notwithstanding the fact that the purported class representative, Silken Brown, had settled her individual claim during the pending litigation. In opposing class certification, Cinemark raised challenges to Brown’s typicality as to the class and adequacy to represent the class as a result of Brown’s individual settlement.

Just as with the NLRA, the FLSA Does Not Preclude Collective Action Waivers in Arbitration Agreements, Sixth Circuit Holds

In a natural extension of the Supreme Court’s recent conclusion that the NLRA does not preclude the use of class or collective action waivers in employment-related arbitration agreements, the Sixth Circuit Court of Appeals has confirmed that such waivers are likewise permitted under the FLSA. Gaffers v. Kelly Services, 2018 U.S. App. LEXIS 22613 (6th Cir. Aug. 15, 2018). In so holding, the Sixth Circuit followed the lead of the Supreme Court’s decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018). The Sixth Circuit has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee.

Nike Accused of Gender Discrimination and Harassment in Class Action Suit

Two female former Nike employees have filed a proposed class action lawsuit against the sportswear manufacturer alleging gender discrimination and a hostile work environment. The lawsuit is the latest development following a New York Times report published in March that Nike fostered a culture of sexual harassment and unfair treatment of female employees.