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Class Action Trends Report Summer 2019

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

COBRA Notices Potentially Subject to Class Action Litigation if Not Complete

While notices pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) are viewed as fairly standard, some plaintiffs’ counsel have recently zoomed in on the type of information included in these notices. Recently in Florida, three separate class action lawsuits alleged that the employer’s COBRA notice did not comply with the Department of Labor regulation.

The Beginning of the End for 401(k) Class Actions? Ninth Circuit Enforces Individual Arbitration

In Dorman v. Charles Schwab Corp., No. 18-15281 (August 20, 2019), the Ninth Circuit Court of Appeals recently held that a 401(k) plan participant was required to individually arbitrate his claims regarding the plan’s fees and investment options, pursuant to the plan’s arbitration provision.

Workplace Safety in California, Episode 4: Cal/OSHA Hearings

In this episode of our Workplace Safety in California series, Kevin Bland and Karen Tynan discuss Cal/OSHA hearings. Topics include discovery, admissibility of evidence and hearsay, and general strategy for Cal/OSHA hearings.

Personal Anecdotes and Perceived Disparity in the Workplace Insufficient to Certify a Class Action

A federal judge in Kentucky recently ruled that anecdotal accounts alone cannot support a class claim of discrimination without “substantial statistical evidence of company-wide discrimination.” Freeman v. Delta Air Lines, No. 2:15-cv-160 (WOB-CJS) (E.D. Ky. June 14, 2019).

Does Jander Signal the Liberalization of Pleading Standards in Stock-Drop Cases? Signs Point to No

The Second Circuit sent shock waves through the community of ERISA stock-drop practitioners late last year in Jander v. Retirement Plans Committee of IBM1 by finding plan participants had plausibly alleged a breach of duty of prudence claim against plan fiduciaries.2 Jander is the only appellate court decision to have found such a claim plausibly pled since the Supreme Court’s decisions in Fifth Third Bancorp v. Dudenhoeffer3 and Amgen Inc. v. Harris4 significantly raised the pleading bar for plaintiffs. It thus raised the prospect that the Second Circuit was signaling the liberalization of pleading standards in stock-drop cases (at least in the Second Circuit), despite the long line of cases finding stock-drop plaintiffs had failed to meet their pleading burden under Dudenhoeffer.

Second Circuit Sends Home Care Worker’s Putative Class Claims to Union Arbitration on an Individual Basis

On July 2, 2019, the U.S. Court of Appeals for the Second Circuit handed a significant victory to New York’s home care industry.1 In Abdullayeva v. Attending Home Care Services, the appellate court reversed a lower court’s decision denying Attending Home Care Services’ (“Attending”) motion to compel arbitration of the plaintiff’s putative class action complaint, and sent the plaintiff’s claims under the Fair Labor Standards Act, New York Wage Parity and New York Labor Law to arbitration on an individual basis. This decision will impact other home care employers in New York with similar arbitration provisions in their collective bargaining agreements.

9th Circuit Kicks California Security Check Case Back To Lower Court

In a unanimous decision late last week, the 9th Circuit Court of Appeals resuscitated class claims against retail giants Nike and Converse that allege employees are owed compensation for time spent undergoing security checks when exiting the retail stores (Rodriguez v. Nike Retail Stores, Inc.; Chavez v. Converse, Inc.). On Friday June 28, the federal appellate court held that the lower district court – which had ruled in favor of the employers by applying the federal de minimis doctrine – needs to conduct a do-over to comply with a recent California Supreme Court decision that all but eliminates the de minimis doctrine based on the facts before the high court. The bar set by the courts is high; California employers may now need to pole vault in order to scale it.

Class Action Trends Report Spring 2019

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

The Supreme Court Rules on Class Action Removal Limits for Third-Party Counterclaim Defendants

In Home Depot U. S. A., Inc. v. Jackson, No. 17-1471 (May 28, 2019), the Supreme Court of the United States addressed whether third-party counterclaim defendants in class actions have authority under the general removal provision 28 U.S.C. Section 1441(a) or the removal provision in the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Section 1453(b), to remove their underlying cases to federal courts. Affirming a Fourth Circuit Court of Appeals ruling that section 1441(a)’s phrase “the defendant or the defendants” and CAFA’s reference to “any defendant” refer to any original defendant only, the Supreme Court concluded third-party counterclaim defendants in class actions do not have the authority to remove their cases to federal court under either the general removal provision or CAFA.
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