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Total Articles: 98

11th Circuit Allows Intervenors in Buccaneers Class Action Lawsuit

The Eleventh Circuit Court of Appeals recently considered two class action lawsuits under the Telephone Consumer Protection Act (TCPA), which involved the same class and allegations and the question of whether additional parties could intervene in a pending case. In Technology Training Associates, Inc., et al. v. Buccaneers Limited Partnership, Cin-Q Automobiles, Inc. filed a complaint on behalf of a putative class, alleging that Buccaneers Limited Partnership was responsible for unsolicited faxes that violated the TCPA.

Class Action Trends Report Fall 2017

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Step Right Up: Tentative Ruling Shows Amusement Park Beats Back Bulk of Class Bid

In a mixed ruling, a California state court judge in Villegas v. Six Flags Entertainment Corp., Case No. BC505344, issued a decision last week denying certification of eight subclasses of amusement park workers, but indicating she would consider certification of several others pending further briefing.

eLABORate: Fifth Circuit Holds Employees Do Not Have a Right to Class Actions Under the NLRA

In two recent rulings, the United States Court of Appeals for the Fifth Circuit held that Section 7 of the National Labor Relations Act (“NLRA”) “does not confer a substantive right to participate in class or collective action litigation.” Class or collective actions allow large groups of employees to collectively pursue similar employment-related lawsuits in court. Such actions are popular with the plaintiffs’ bar, and dreaded by employers because of the increased defense costs and potential liability from such litigation.

Arbitrator Must Rule on Independent Contractor Status of Uber Drivers in Class-Action Notwithstanding NLRA Bar to Class Action Waivers

Last week, a U.S. District Court Judge in Illinois ruled that an arbitration agreement signed by an Uber driver required arbitration on the issue of whether Uber drivers are employees or independent contractors before the driver could proceed with a wage and hour class action lawsuit against Uber. The Court’s decision raises an important exception to current law in the Seventh Circuit, holding that class action waivers in arbitration agreements with employees are invalid and unenforceable under the National Labor Relations Act (NLRA).

Certification of Alleged Misclassified Bakery Distributors Denied due to Predominance of Individualized Issues

Class certification would have been granted in Soares v. Flowers Foods, Inc., 3:15-cv-04918 (N.D. Cal., June 28, 2017), but for the allegedly misclassified independent contractors’ decision to deliver, or not deliver, the goods themselves.

New Supreme Court Term to Kick Off With Argument in Class Action Waiver Cases

On July 19, 2017, the Supreme Court of the United States released the October 2017 term’s calendar for oral arguments, including the date it will hear oral argument in the three consolidated class action waiver cases that are currently before the Court. The term will start on October 2, 2017, with the justices hearing a total of one hour of oral argument in National Labor Relations Board v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris.

Murphy Oil Case Scheduled for Oral Argument

In January, the United States Supreme Court granted certiorari in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300, consolidating them for argument.

Court Says Uber Drivers Can Proceed With National Misclassification Class Action

A federal court judge in North Carolina last week granted permission to a group of Uber drivers challenging the company’s classification structure to band together and proceed with a class action lawsuit against the ride-hailing company. The drivers claim they are improperly labeled as independent contractors and should be entitled to minimum wage, overtime, and other wage and hour protections under the federal Fair Labor Standards Act (FLSA).

Class Action Trends Report Summer 2017

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Fair Credit Reporting Act Developments: Increase in Class Action Litigation

Applicant background reports can be vital tools for employers, especially in the hiring process. However, amendments to the Fair Credit Reporting Act (“FCRA”) significantly increase the rights of applicants and employees to receive certain disclosures and to choose whether to authorize certain background reports. Given the increase in litigation over these issues, employers (as well as their attorneys and investigators) are well-advised to pay close attention to the detailed requirements of the FCRA.

Class Action Waiver Update: Will a Switch in Time Persuade Nine?

It was no surprise when, on June 16, 2017, numerous business and employer groups (including several represented by Ogletree Deakins) filed over a dozen amicus briefs supporting the employers in the three class action waiver cases pending in the Supreme Court of the United States: National Labor Relations Board v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris.

Department of Justice Changes Stance on Class Action Waivers in Favor of Employers

In a fascinating turn of events, the United States Department of Justice (“DOJ”) switched sides in a critical pending Supreme Court case last Friday. The three consolidated cases—National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300—have been closely watched as the Supreme Court is expected to resolve a growing circuit split over whether an employment contract that requires an employee to waive his or her right to bring or participate in a class action violates the National Labor Relations Act (“NLRA”).

Federal Court Decision Approves New Class Of “Surf-By” Lawsuits

A federal court in Florida issued a potentially groundbreaking decision earlier this week that could open the floodgates when it comes to a new trend in litigation filed under Title III of the Americans with Disabilities Act (ADA): the “surf-by” lawsuit. While businesses have been forced to deal with so-called drive-by lawsuits for some time now – those claims filed by plaintiffs who spot technical ADA violations such as inaccessible entrances by simply driving down the street – recent years have seen an explosion when it comes to the digital equivalent of such suits.

Class Action Waiver Update: Ogletree Deakins Files Supreme Court Amicus Brief Supporting Businesses and Employers

On June 16, 2017, Ogletree Deakins filed an amicus brief in the class action waiver cases that are currently before the Supreme Court of the United States: National Labor Relations Board v. Murphy Oil USA, Inc., Epic Systems Corp. v. Lewis, and Ernst & Young LLP v. Morris. The high court had agreed to take up the contentious class action waiver issue earlier this year to decide whether the National Labor Relations Board (NLRB) can ban class action waivers in employment arbitration agreements under the National Labor Relations Act (NLRA) or whether such waivers are protected under the Federal Arbitration Act (FAA). Ogletree Deakins prepared the amicus brief on behalf of the National Association of Home Builders, the National Federation of Independent Business, the Society for Human Resource Management, and the Council on Labor Law Equality, which collectively represent thousands of employers and businesses across the country.

Supreme Court: Plaintiffs May Not Voluntarily Dismiss Case to Appeal Class Certification Decision

Plaintiffs may not voluntarily dismiss their class action claims upon receiving an adverse class certification decision and subsequently invoke 28 U.S.C. § 1291, the general rule that appeals can be taken only from a final judgment, to appeal the decision as a matter of right, the U.S. Supreme Court has ruled. Microsoft Corporation v. Baker, No. 15-457 (June 12, 2017).

Another One Bites The Dust: 6th Circuit Latest To Strike Down Mandatory Class Waivers

Employers returning from the Memorial Day weekend were on the receiving end of bad news as they learned that the 6th Circuit Court of Appeals became the third federal appeals court to strike down mandatory class action waivers.

Timing Is Everything: District Court in New York Approves CAFA Removal Two Years After Case Filing

In a somewhat unusual ruling, a New York federal court denied an unpaid intern’s attempt to remand a putative wage-hour class action against Oscar de la Renta to state court even though the case was removed to federal court under the Class Action Fairness Act (“CAFA”) approximately two years after the case was filed.

Class Action Trends Report Spring 2017

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Supreme Court Hears Argument on Appellate Jurisdiction after Denial of Class Certification

Whether a federal court of appeals has jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice was the issue before the U.S. Supreme Court on March 21, 2017, when the Court heard oral argument in Microsoft Corporation v. Baker, No. 15-457. If this controversial procedural mechanism is allowed, a named plaintiff would be able to simply agree voluntarily to dismiss his or her claims with prejudice, then appeal the unfavorable judgment against class certification.

Ninth Circuit Enforces Arbitration Agreement's Class Action Ban, but Only After Severance of PAGA Ban

Executive Summary: A panel of the U.S. Court of Appeals for the Ninth Circuit recently overruled a lower court’s decision refusing to enforce an arbitration agreement, holding that the dispute resolution provision of the agreement was valid and enforceable and any invalid provisions could be severed. See Poublon v. C.H. Robinson Company, (9th Cir. Feb. 24, 2017).

Class Action as Defense: Fifth Circuit Rules Pending Class Action Subsumes Class Member’s Duplicative Individual Claim

Employers facing multiple litigations can take solace in the fact that, sometimes, too much of a bad thing can be helpful. In Ruiz v. Brennan, 16-11061, the Fifth Circuit held that a pending administrative class action subsumed a plaintiff’s attempts to file an arguably duplicative individual claim in a separate action. As a result, the second litigation was dismissed without prejudice.

How Does the Supreme Court’s Remand of the Transgender Discrimination Case Impact Wage-and-Hour Class Actions?

On March 6, 2017, the Supreme Court, in a one-sentence summary disposition, remanded the case of Gloucester County Sch. Bd. v. G.G. to the U.S. Court of Appeals for the Fourth Circuit “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”

House Approves Fairness in Class Action Litigation Act

Last night, the House approved the Fairness in Class Action Litigation Act by a vote of 220-201. To review our post last month detailing exactly how this bill would affect class action litigation, click here.

Supreme Court Delays Major Employment Arbitration Class Action

The US Supreme Court has announced it will wait to hear a trio of mandatory arbitration cases in employment until its next term, which does not begin until October. The cases involve three Fair Labor Standards Act disputes involving whether employers can use mandatory arbitration clauses to ban employees from bringing class action lawsuits.

Good Things Come To Those Who Wait? Supreme Court Delays Class Waiver Decision Until Next Term

When the U.S. Supreme Court announced several weeks ago it would settle a dispute about whether employers can use mandatory class action waivers with their workers, most expected a final decision by June 2017. Employers were prepared to spend the next several months with their fingers crossed hoping the decision would fall in their favor, seeking clarity to a topic that has become increasingly muddled over the past year.

United States Supreme Court Delays Oral Argument in Class Action Waiver Cases

Yesterday, the United States Supreme Court notified the parties in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307; Epic Systems Corp. v. Lewis, Case No. 16-285; and Ernst & Young LLP v. Morris, Case No. 16-300 that the cases will be heard in October 2017. Jackson Lewis has represented Murphy Oil USA throughout these proceedings. As reported in Jackson Lewis’ earlier post, on January 13, 2017, the Supreme Court consolidated the three cases and granted certiorari.

NLRB GC Instructs Regions to Hold on Class Action Waiver Cases Until Supreme Court Rules

The General Counsel of the National Labor Relations Board has instructed Regional Offices to hold in abeyance cases involving mandatory arbitration agreements with opt in or opt out clauses. Regions must do the same in cases where an employer argues that the class action waiver in its arbitration agreement is different than the one at issue in Murphy Oil. Regions are to evaluate cases independently.

Are You Ready for Some Football? A Pocket Playbook for HR Managers Navigating Competitive Recruiting

The Patriots, Falcons, and . . . class actions?

The Impermissible “Fail-Safe” Class under Federal Rule of Civil Procedure 23

The Supreme Court, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), set a high standard for class certification under Federal Rule of Civil Procedure 23 (“Rule 23”). Under Rule 23(a), the party seeking certification must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. Rule 23. Additionally, the proposed class must satisfy at least one of the three requirements in Rule 23(b). Id. In determining whether these requirements are met, the Supreme Court has instructed district courts to conduct a “rigorous analysis,” which frequently “will entail some overlap with the merits of the plaintiff’s underlying claim.” Dukes, 131 S. Ct. at 2551.

Supreme Court to Decide Mandatory Employee Arbitration Cases

The US Supreme Court has agreed to decide whether employers can use mandatory arbitration clauses to ban employees from bringing class action lawsuits over workplace disputes. The Court announced it will hear a trio of Fair Labor Standards Act cases involving the enforceability of class action waivers, which have become increasingly common in the employment context.

Supreme Court to Review Validity of Class Action Waivers in Employment Arbitration Agreements

The U.S. Supreme Court has agreed to decide whether class action waivers in employment arbitration agreements violate the National Labor Relations Act (“NLRA”). The Supreme Court’s action promises the much-anticipated resolution of the circuit split on the issue.

Supreme Court Will Review Three Cases Involving the Lawfulness of Class and Collective Action Waivers

On January 13, 2017, the U.S. Supreme Court granted certiorari in three cases involving the lawfulness of class and collective action waivers in arbitration agreements. Since the National Labor Relations Board’s 2012 decision in D.R. Horton, courts have wrangled with the enforceability of class action waivers and the interaction between the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA). The Supreme Court’s decision to address this issue means the now-existing circuit split could end.

Supreme Court Jumps Into Class Action Waiver Fight

On January 13, 2017, the Supreme Court agreed to take up the contentious class action waiver issue that has riled courts for the past four years.

Supreme Court Agrees To Wade Into Class Waiver Conflict

In a widely expected move, the U.S. Supreme Court just agreed to settle a dispute about whether employers can use mandatory class action waivers with their workers. The decision, which should be issued by June 2017, will provide clarity to a topic that has become increasingly muddled over the past year. Employers will spend the next several months with their fingers crossed hoping the decision falls in their favor.

United States Supreme Court Agrees to Review Class Action Waiver Cases

Earlier today, the United States Supreme Court granted certiorari in National Labor Relations Board v. Murphy Oil USA, Case No. 16-307, Epic Systems Corp. v. Lewis, Case No. 16-285 and Ernst & Young LLP v. Morris, Case No. 16-300, consolidating them for argument. The three cases present the question whether class action waivers in employment arbitration agreements violate the National Labor Relations Act (“NLRA”). The Supreme Court’s action promises the much-anticipated resolution of the circuit split on the issue.

Class Action Trends Report Winter 2016

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Supreme Court Denies Review of NFL Players’ Concussion Settlement

In April of 2015, Pennsylvania federal district court judge Anita B. Brody approved a settlement between the National Football League (NFL) and retired football players intended to resolve thousands of concussion lawsuits dating back to 2011. The settlement covers all living NFL football players who retired before July 7, 2014 (over 20,000 players) and could result in a payout of $1 billion.

ALERT: Former EEOC General Counsel to Join Outten & Golden LLP’s New Office

David Lopez, who served as General Counsel of the Equal Employment Opportunity Commission for six years and served the EEOC in various capacities for approximately 25 years, is joining Outten & Golden LLP on January 1, 2017, in its new Washington, D.C. office

Significant Proposed Amendments to FRCP Rule 23 Likely Pending Conclusion of Public Comment Period

Earlier this year, the Judicial Conference Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules submitted proposed amendments to a number of Rules, including Fed. R. Civ. P. 23 (which governs class actions), and requested that the proposals be circulated to the bench, bar, and public for comments. The proposed amendments, advisory committee reports, and related information can be found on the Judiciary’s website and a copy is available here.

The Benefits of Mandatory Binding Arbitration Agreements With Class Action Waivers in the Gig Economy–They Are Not Just For Employees Any More

Experts now predict that by 2020, 40% of workers will not fit into the traditional employment model as we currently know it.

September 2016: The 8 Greatest Labor And Employment Law Stories

The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, here is a quick review of the eight greatest stories from last month that all employers need to know about:

Class Action Trends Report Fall 2016

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Employers Win Latest Round In Class Waiver Fight

Employers can breathe a sigh of relief after the 2nd Circuit Court of Appeals once again upheld the validity of class and collective action waivers in arbitration agreements. Rather than siding with several recent circuit courts that struck down mandatory class and collective action waivers, the 2nd Circuit (covering New York, Connecticut, and Vermont) stuck to its guns and prior precedent to rule that employers can require employees to bring arbitration claims on an individual basis and prohibit them from joining together to bring class or collective actions (Patterson v. Raymour’s Furniture Co.).

Class and Collective Action Waivers

Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act (“NLRA”), the Ninth Circuit Court of Appeals ruled on August 22, 2016.

9th Circuit Becomes Second Appeals Court to Rule That Class Action Waivers Violate NLRA

The 9th Circuit Court of Appeals has joined its sister court in the 7th Circuit in holding that arbitration agreements that prevent employees from filing class actions violate the National Labor Relations Act (NLRA) and are therefore unenforceable.

Ninth Circuit, California Appellate Court Take Aim at Arbitration Agreements

Executive Summary. The Ninth Circuit and the California Court of Appeal have each issued decisions that may fundamentally affect how employers deal with arbitration agreements in the future. In Morris v. Ernst & Young, the Ninth Circuit held that it is unlawful to require an employee to sign an arbitration agreement that includes a class action waiver. In Esparza v. Sand & Sea, Inc., the California Court of Appeal refused to enforce an arbitration provision that was contained only in an employee handbook.

Class Action Retirement Plan Litigation Hits Higher Ed Hard

In recent weeks, multiple class action lawsuits have been filed against private, nonprofit universities across the country alleging breaches of fiduciary duty and claiming millions of dollars in damages for retirement plan participants. Each action was filed by the same law firm that previously filed similar class actions against several large private companies and which now appears to be targeting higher educational institutions.

Holding Class Waivers Violate the NLRA, Ninth Circuit Joins Circuit Split

Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Morris v. Ernst & Young, No. 13-16599 (9th Cir. Aug. 22, 2016).

Ninth Circuit Finds Arbitration Agreement That Required Employees to Bring Claims in “Separate Proceedings” Illegal Under the NLRA

On August 22, 2016, in Morris et al. v. Ernst & Young, LLP,1 a panel of the U.S. Court of Appeals for the Ninth Circuit followed the lead of the National Labor Relations Board (“NLRB”) and the U.S Court of Appeals for the Seventh Circuit in finding that an arbitration agreement that required employees to bring claims in “separate proceedings”, thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA). Previously, the only appellate court to adopt the NLRB's position first announced in D.R. Horton2 was the Seventh Circuit in Lewis v. Epic-Systems Corp., while several other Circuits had decisively rejected it.3

Ninth Circuit Holds Class Waivers Violate the NLRA, Joining Circuit Split

Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Morris v. Ernst & Young, No. 13-16599 (9th Cir. Aug. 22, 2016).

No Harm, No Foul (And No Class Action Lawsuit): TCPA Class Action Dismissed For Failure to Allege Harm

Earlier this month, United States District Court Judge Peter Sheridan dismissed a class action brought against Work Out World (“WOW”) under the Telephone Consumer Protection Act (TCPA). In doing so, Judge Sheridan relied on the recent decision by the United States Supreme Court in Spokeo, Inc. v. Robins.

Class Action Waivers Get Much-Needed Lyft

A federal court recently upheld the validity of an employer’s class action waiver, forcing a disgruntled worker into arbitrating his case individually instead of using the court system to launch a large-scale class action. Typically, this kind of decision would not be particularly significant; after all, many businesses employ class waivers, and the overwhelming number of federal courts examining them have approved their use. But this case is noteworthy for two reasons: it was the first time a federal court published an opinion on class waivers since the 7th Circuit became the first court to reject them, and the decision boosts the burgeoning gig economy (Bekele v. Lyft, Inc.).

Jackson Lewis Class Action Trends Report Summer 2016 Now Available

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.

Class Action Trends Report Summer 2016

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

Seventh Circuit Creates Circuit Split on Arbitration Agreements that Prohibit Class or Collective Wage and Hour Claims

Recently, the Seventh Circuit Court of Appeals in Chicago held in Lewis v. Epic Systems Corporation that a mandatory agreement between the employer (Epic) and its employees requiring arbitration of wage and hour claims on an individual basis ran afoul of employees’ rights “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” under Section 7 of the National Labor Relations Act (NLRA). Other circuit courts, including the Fifth Circuit in D.R. Horton, Inc. v. NLRB have come out the other way and upheld mandatory arbitration agreements that require employees to arbitrate wage and hour claims and that waive an employee’s ability to bring class or collective claims.

Seventh Circuit Decision Rejecting Class Action Waiver Sets Stage for Supreme Court Review

Executive Summary: On May 26, 2016, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit held that a class and/or collective action waiver contained in an arbitration agreement was unlawful under the National Labor Relations Act (NLRA) and was, therefore, unenforceable. Lewis v. Epic Systems Corporation, No. 15-2997.

Epic Fail: Class Action Waivers Take A Hit

or the first time, a federal appeals court has dealt a serious blow to class and collective action waivers in arbitration agreements. In Jacob Lewis v. Epic Systems Corporation, the 7th Circuit Court of Appeals held that a mandatory arbitration agreement prohibiting employees from bringing claims against their employer on a class or collective basis violates the National Labor Relations Act (NLRA). While the decision itself only directly impacts employers in Illinois, Indiana, and Wisconsin, the court’s reasoning could be adopted by other circuits, or perhaps by the U.S. Supreme Court, causing even more headaches for employers around the country.

Class Action Waivers in Arbitration Agreements Violate NLRA, 7th Circuit Rules

The 7th Circuit Court of Appeals has ruled, in Lewis v. Epic-Systems Corp., 2016 U.S. App. LEXIS 9638 (7th Cir. 2016), that a health care software company's arbitration agreement violates the right of employees to engage in protected concerted activity under the National Labor Relations Act (NLRA) by barring them from participating in or pursuing wage-and-hour class action or collective claims. Because the ruling deepens a split among the circuits on this issue, it could lead to an eventual review by the Supreme Court to resolve the inconsistency.

Supreme Court Punts On Issue Of "Standing" To Pursue Class Action Claims

Earlier this week, by a 6-2 vote, the Supreme Court issued a “no decision” decision on an issue important to employers facing class action litigation. The Court decided that the 9th Circuit Court of Appeals needed to review again a question of whether plaintiffs have standing to pursue class action claims on behalf of themselves, and others similarly situated, if they cannot show that they have suffered actual harm. By failing to decide the question one way or the other, the Court effectively delayed a determination of whether employers will have another tool to help curtail costly class action claims, or whether they will face a substantial increase in the number of such claims (Spokeo, Inc. v. Robins).

Class Action Trends Report Spring 2016

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:

Court Denies Class Certification in Telephone Consumer Protection Act Case, Citing Plaintiff’s “Unique” Circumstances

For employers who are facing class claims under the Telephone Consumer Protection Act, you may have more support for your defense: The U.S. District Court for the Southern District of California recently granted Wilshire Consumer Capital’s (WCC) motion to deny class certification in a putative class action filed under the TCPA.

More Lessons in Class and Collective Actions From Lyft

There’s been a lot of buzz in the past few weeks surrounding Lyft’s proposed class action settlement in Lyft v. Cotter, NDCA Case No. 13-cv-04064-VC. Under the terms of the proposed settlement, Lyft will, among other things, (1) pay putative class members $12.25 million; (2) replace its current at-will termination provision with one that allows Lyft to deactivate drivers only for specific reasons or after providing a driver notice and an opportunity to cure; and (3) pay the arbitration fees and costs unique to arbitration for claims brought by drivers against Lyft related to their employment with Lyft.

Unaccepted Offers of Complete Relief to Named Plaintiff Do Not Moot Class/Collective Claims

Yesterday, the United States Supreme Court issued its opinion in Campbell-Ewald Co. v. Gomez, resolving a split among the federal Circuit Courts of Appeal on the issue of whether an unaccepted Rule 68 offer of judgment to the representative plaintiff in a class or collective action operates to moot the class/collective claims.

The Supreme Court Rules an Unaccepted Offer of Judgment Cannot Moot a Case, But What About Payment of Complete Relief?

A divided U.S. Supreme Court recently ruled in Campbell-Ewald Co. v. Gomez1 that an unaccepted settlement offer or offer of judgment is a legal nullity that cannot moot a case. However, the Court left open the possibility that payment of complete relief may suffice.

Biggest Class Action Settlements Totaled $2.5 Billion (With a 'B') Last Year, Report Finds

Employers paid out a record $2.5 billion last year to settle 50 of the largest employment lawsuits, according to the 12th Annual Workplace Class Action Litigation Report from Seyfarth Shaw LLP.

Supreme Court Weighs in on Class Action "Pick Off", but Leaves Significant Questions Unanswered

The U.S. Supreme Court today eliminated a strategy defendants have used to stem the rising tide of class action lawsuits—offering the named plaintiffs in a class action lawsuit full relief, mooting their individual claim (regardless if they accept it), and along with it, rendering the class action moot. Campbell-Ewald Co. v. Gomez.

An Offer They Can Refuse: SCOTUS Takes Some Power Away From Offers For Complete Relief

Today, the Supreme Court limited employers’ ability to proactively and inexpensively end class action litigation before it takes off. In a 6 to 3 decision, the Court held that a defendant making a complete offer of relief to a plaintiff does not serve to kill the case, and more importantly, the plaintiff can still move forward with class action litigation. Gomez v. Campbell-Ewald Co.

How Not to Moot a Case: Supreme Court Rules Case Remains Live After Unaccepted Offer of Settlement

On January 20, 2016, the Supreme Court of the United States decided another case in a line of cases addressing the issue of class action mootness. Specifically, the justices ruled that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case. “Like other unaccepted contract offers,” the Court wrote, an unaccepted settlement offer “creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.” The Court also found that not all government contractors are entitled to “derivative sovereign immunity.” Campbell-Ewald Co. v. Gomez, No. 14-857, Supreme Court of the United States (January 20, 2016).

U.S. Supreme Court Issues Decision In ‘Pick-Off’ Case

This morning the U.S. Supreme Court issued its decision in Campbell-Ewald Company v. Gomez. Here is the decision. The Court decided (6-3) that an unaccepted offer of judgment does not moot a case, resolving the circuit split, and answering the question left unanswered in Genesis Healthcare Corp. v. Symczyk (more on Genesis and the lead-up to Campbell-Ewald discussed here). The majority adopted Justice Kagan’s dissent in Genesis. The Court did not decide what would happen if the defendant deposits the full amount due (as opposed to just making the offer) and the court enters judgment in that amount, leaving that issue for another day. More analysis of the decision to follow.

Class Action Trends Report Fall 2015

Our quarterly Class Action Trends Report discusses significant new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims.

U.S. Supreme Court Hears Argument on Viability of ‘No-Injury’ Class Actions under Fair Credit Reporting Act and Other Statutes

Whether a plaintiff who alleges no injury may bring a lawsuit, including a class action, based on a violation of statutory rights was the central issue before the U.S. Supreme Court on November 2, 2015, when the Court heard oral argument in Spokeo, Inc. v. Robins, et al., No. 13-1339.

Does An Offer of Complete Relief Moot a Plaintiff’s Individual and Corresponding Class Claims?

If an employee brings a class action lawsuit, the employer offers the representative employee more than he could possibly recover individually in the lawsuit and the employee rejects the offer, does the offer “moot” the individual’s claims and, more importantly, require dismissal of the class claims as well?

Class Actions in the Balance: U.S. Supreme Court Hears Oral Argument in ‘Pick-Off’ Case

The U.S. Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez, No. 14-857, a case that could significantly affect the viability of class action litigation, particularly wage and hour class actions, though the case pending before the Court arises under the Telephone Consumer Protection Act (TCPA).

Jackson Lewis Class Action Trends Report Now Available

Below is a link to the latest issue of the Jackson Lewis Class Action Trends Report.

Class Arbitration of ERISA Claims: Yes You Can!

ERISA neither expressly nor impliedly prohibits mandatory arbitration of claims. Numerous courts that have analyzed the purpose of both ERISA and the Federal Arbitration Act (“FAA”) have held that ERISA claims are arbitrable. And while the Supreme Court has not spoken directly to the issue, the Court’s pro-arbitration jurisprudence under the FAA – culminating with several decisions approving the inclusion of class action waivers in arbitration agreements – strongly suggests that it would approve of the inclusion of ERISA claims in an arbitration agreement. Moreover, courts applying the recent Supreme Court decisions involving mandatory arbitration agreements have affirmed the use of class waivers in a variety of federal statutory contexts, including ERISA. As a result, more and more employers are implementing broad arbitration clauses with class action waivers.

SCOTUS Denies Review of Another Case Involving PAGA Representative Action Waivers in Arbitration Agreement

The United States Supreme Court unfortunately denied review in Bridgestone Retail Operations v. Milton Brown (Docket No. 14-790) – thereby declining a second opportunity to review the California Supreme Court’s determination that PAGA representative action waivers in employment arbitration agreements are not enforceable. Earlier this year, the U.S. Supreme Court denied review in Iskanian v. CLS Transportation, which first presented the issue for review before the high Court. In Iskanian, the California Supreme Court of course held that class action waivers in arbitration agreements are enforceable, but that PAGA representative action waivers are not. The Iskanian Court’s reasoning is difficult to square with U.S. Supreme Court precedent in Concepcion v. AT&T Mobility. As such, many employers were hoping the Court would grant review if not in Iskanian then at least in Bridgestone -- with the issue being presented for a second time in that case. No such luck. For now, California employers will continue to be stuck with the Iskanian precedent in California state court. Meanwhile, California federal courts have widely rejected Iskanian and thus, the enforceability of a PAGA representative action waiver in an arbitration agreement continues to depend on whether the issue is being decided by a California state court or a federal court. Perhaps one of the cases making its way through the California federal appellate track (the Ninth Circuit) will convince the Supreme Court to accept review to resolve the conflict between California state and federal courts on this important issue for California employers. In the meantime, California employers should stay the course, understanding that class action waiver provisions are fully enforceable in both state and federal courts in the Golden State. The piggy-back PAGA representative claims will continue to present challenges – at least in state court.

FCRA Class Actions

The slowly rising waves of Fair Credit Reporting Act (FCRA) class-action litigation are beginning to crash against employers. And if you thought that the FCRA only applied to credit bureaus and creditors, it’s time to think again.

SCOTUS Rules CAFA Removal Notices Need Contain Only a Plausible Allegation That Amount in Controversy is Satisfied

On December 15, 2014, the Supreme Court of the United States decided a critical issue regarding Class Action Fairness Act of 2005 (CAFA) removals. Specifically, the Supreme Court settled a controversy surrounding what information a removing defendant must provide regarding the CAFA amount in controversy in its notice of removal.

To Be Or Not To Be: Mooting Rule 23 Class Actions Through Rule 68 Offers of Judgment

The use of Rule 68 offers of judgment to moot the claims of plaintiffs in the Fair Labor Standards Act (FLSA) collective action context has received much attention recently as the courts consider defendants’ use of this strategy in the wake of the Supreme Court of the United States’ decision in Genesis Healthcare Corp. v. Symczyk, 113 S. Ct. 1523 (2013). In one such case out of the Eastern District of New York, recently covered by our New York City office, a bid to pick off the named plaintiff in an FLSA case was unsuccessful.

Legal Alert: Eleventh Circuit Upholds Enforceability of Class Action Waiver

Executive Summary: The Eleventh Circuit recently held that an arbitration agreement that waives an employee's ability to bring a collective action under the Fair Labor Standards Act (FLSA) is enforceable under the Federal Arbitration Act (FAA). See Walthour v. Chipio Windshield Repair, LLC (11th Cir. March 21, 2014). The court rejected the plaintiffs' argument that the right to file a collective action under the FLSA is a non-waivable substantive right and that the agreement was invalid because it purported to waive that right. The court found no contrary congressional command in the FLSA that would override the FAA's strong policy in favor of arbitration.

eLABORate: Eleventh Circuit Upholds Class Action Waivers

Employers should be aware of a recent decision that allows employers in the Eleventh Circuit to use collective action waivers in arbitration agreements with employees to minimize exposure to collective action lawsuits.

Class Action Waivers in Arbitration Agreements Enforceable Says Fifth Circuit

The Fifth Circuit Court of Appeals recently held collective or class action waivers in arbitration agreements are enforceable – flatly rejecting the National Labor Relations Board’s decision in D.R. Horton v. NLRB.

Supreme Court Arbitration Jurisprudence - No Class Action If You Say So

Combining today's decision in American Express Co. v. Italian Colors Restaurant, (6.20.13) with its decision 10 days ago in Oxford Health Plans v. Sutter, (S.Ct. 6.10.13) the Supreme Court's position now seems clear. If an employer wants to avoid class or collective actions, it can do so by having an arbitration agreement that precludes arbitration of claims on a class basis. But to be sure that happens, you need to be explicit about it.

Supreme Court Upholds Class Action Waivers In Arbitration Agreements

The U.S. Supreme Court held today that courts cannot invalidate arbitration agreements which waive class actions, unless there is an express congressional statement that class-action proceedings are so necessary to a federal claim as to preempt the Federal Arbitration Act (FAA). American Express Co. v. Italian Colors Restaurant.

Supreme Court Rules Class-Action Waivers Are Enforceable—Even if the Cost of Individual Litigation Is Too High

This morning, with Justice Scalia writing for a 5-3 majority, the Supreme Court of the United States ruled that a waiver of class arbitration in a commercial contract is enforceable under the Federal Arbitration Act (FAA), even if the plaintiffs’ cost of individually arbitrating a federal statutory claim exceeds the potential recovery. The Court refused to invalidate the class-action waiver on the ground that pursuit of individual claims would be fiscally impractical. According to the Court, “The class-action waiver merely limits arbitration to the two contracting parties. It no more eliminates those parties' right to pursue their statutory remedy than did federal law before its adoption of the class action for legal relief in 1938.” American Express Co. v. Italian Colors Restaurant, No. 12–133, U.S. Supreme Court (June 20, 2013).

Supreme Court: "Good, Bad or Ugly," Arbitrator's Class Action Ruling Upheld

On June 10, 2013 a unanimous decision of the U.S. Supreme Court clarified the standard of review federal courts will use when reviewing an arbitrator’s decision about whether parties contemplated class arbitration when they entered into a broadly worded mandatory-arbitration provision. Though the case involved an arbitration provision outside the employment context, this decision has implications for employers using mandatory arbitration agreements in employment contracts and other agreements with employees.

Supreme Court Raises The Bar For Class Actions

Today the U.S. Supreme Court rendered a pivotal decision, holding that as a prerequisite for certification of a class action, a plaintiff must introduce admissible evidence to show that the case is susceptible to awarding damages on a class-wide basis. This ruling has been much anticipated and will significantly impact the future of employment-related class action lawsuits nationwide. Comcast v. Behrend

Class Action eAuthority (July 2012)

Major Changes at the EEOC Could Mean Major Liability for Employers; Challenges to Standing and Venue in Class Action Litigation; “Hybrid” Wage and Hour Class Actions Approved by Third Circuit; E-Discovery Developments from the Land of Zubulake.

Employers May Not Be Entitled to Full Disclosure of Potential EEOC Class Action Before Suit Is Filed

Employers often expect that, before the EEOC can expand a single-employee EEOC charge into a class action lawsuit, the EEOC must explain the scope of any potential class action and offer an employer the opportunity to resolve it. That expectation is open to question, however, after the Northern District of Illinois’s recent decision in EEOC v. Union Road Towing, Inc. In that case, the Court rejected an employer’s attempt to eliminate an EEOC class action based upon the limited nature of the EEOC’s pre-suit disclosures. Because the Seventh Circuit has not yet resolved this specific issue, the district court’s ruling increases the risk to Illinois employers that the EEOC can turn adverse findings in single-employee charges of discrimination into claims on behalf of an entire class of employees, without first affording the employer an informed opportunity to attempt to resolve such class-wide claims. As explained below, to retain the possibility of pre-lawsuit resolution of such claims and avoid expansive discovery, employers should repeatedly seek clarification of the scope of any potential class action referenced in EEOC reasonable cause determinations or conciliation discussions.

Ninth Circuit Provides Guidance On The Requirements For Removing Putative Class Actions To Federal Court

In Campbell, et al. v. Vitran Exp., Inc., 2012 WL 746276 (9th Cir., March 8, 2012), a three-judge panel of the Ninth Circuit Court of Appeals issued a decision finding that an employer proved with “legal certainty” that the putative class claims brought by the plaintiffs placed an amount in controversy that exceeded the requirement for federal court jurisdiction under the Class Action Fairness Act.

Seventh Circuit Weighs In On Commonality Requirement in Class Actions

The Seventh Circuit recently applied the Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision to class certification in a wage and hour action, and affirmed the certification of two classes. Ross v. RBS Citizens N.A. d/b/a Charter One. The Seventh Circuit held that the district court did not abuse its discretion in certifying two classes of bank employees and that this certification met the commonality requirement clarified in Dukes.

Class Action eAuthority (June 2011)

In 2008, 5,302 suits were filed under the Fair Labor Standards Act (FLSA) in the nation’s federal courts. Statistics Div., Admin. Office of the U.S. Courts, Federal Judicial Caseload Statistics. By 2010, that number had jumped to 6,081. One source of the uptick appears to be the flood of “hybrid” actions, in which plaintiffs assert violations of state wage and hour laws, styled as purported Rule 23 class actions, and FLSA claims, which must be brought as a collective action.

Supreme Court Expands Use Of Arbitration Agreements

On April 27, 2011, the U.S. Supreme Court upheld the enforceability of class action waiver provisions in arbitration agreements. Under such provisions, parties both agree to arbitrate their disputes, and waive the right to participate in class action lawsuits or class arbitrations. The Court's ruling allows businesses to require customers to arbitrate their disputes individually, and reaffirms the federal policy favoring arbitration. This is good news for employers. AT&T Mobility LLC v. Concepcion.

Arbitration As Protection Against Class Actions

Today the Supreme Court gave a powerful tool for employers to avoid collective and class actions when it overturned the 9th Circuit's decision in ATT Mobility LLC v. Concepcion (4.27.11) [pdf]. Justice Scalia writing for a sharply divided court, split on the now familiar lines, rejected attempts by states (in this case California) that would prohibit arbitration agreements which prohibit class treatment of claims.

E-Discovery Preservation Obligations in Class and Collective Actions

The first (and most important) rule of e-discovery in nearly all cases is to preserve electronically-stored information (ESI) correctly. If a party preserves ESI properly, most other missteps can be corrected. To comply with the duty to preserve, a party must issue and enforce proper litigation holds (and do so in a timely fashion) and suspend procedures or processes that would otherwise result in systematic destruction of relevant ESI. The minimum requirements for a proper litigation hold include:

Blanket Policies Can Increase Your Risk of A Class Action Lawsuit

Generally, employees have not been successful in trying to bring class actions under the Americans with Disabilities Act (ADA). The reason is that – unlike Title VII or the Age Discrimination in Employment Act – it's not enough for an employee to belong to a protected class. Under the nondiscrimination provisions of the ADA, an employee must be a "qualified individual with a disability." Determining whether the class members are all qualified generally forecloses treating them as a class.

The Next Wave - Systemic Discrimination Class Actions.

The apparent next wave of employment discrimination class actions appears to be cases focusing on so-called systemic discrimination. The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) have undertaken recent initiatives to this effect. And prominent plaintiffs’ attorneys have said these cases are the future of employment class actions.
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