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Jackson Lewis Class Action Trends Report Summer 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.

Class Action Trends Report Summer 2018

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

Class Action Waivers Are Lawful, Says United States Supreme Court

The United States Supreme Court has spoken – class and collective action waivers are lawful. The Court’s May 21 decision overturns the National Labor Relations Board’s (NLRB) position that these waivers violate employee rights and resolves a split among federal appellate courts. Employers should run, not walk, and include such provisions in their respective employment agreements!

An Epic Checklist: What to Consider When Adopting Class Action Waivers in Employment Arbitration Agreements

In Epic Systems Corporation v. Lewis, the Supreme Court of the United States held that class action waiver in an employment arbitration agreement are enforceable. Yet, arbitration agreements containing such waivers may still be challenged on a variety of grounds. The law in this area is often unsettled or unclear and changes frequently. The following checklist identifies key issues employers may want to consider when adopting a class action waiver in an employment arbitration agreement. In adopting a class action waiver in an employment arbitration agreement, an employer may want to consider the following:

Rule 23 Amendments Awaiting Congressional Review

The final amendments to the Federal Civil Rules of Procedure, including amendments to Rule 23 class actions, are waiting for approval from Congress. The primary changes to Rule 23 affect the class action notice and settlement processes. The amendments acknowledge advancements in technology and the popularity of social media, while formalizing procedural and substantive notice and approval requirements already being employed in some federal courts.

$1,000 For An Ice Cream Sundae? Try Nearly $1,000,000 For A Wage And Hour Violation!

An iconic New York City ice cream parlor, famous for holding the Guinness World Record for most expensive dessert (the $1,000 “Golden Opulence Sundae”) and most expensive hamburger (the $295 “Le Burger Extravagant”) and once offering a World Record $25,000 frozen hot chocolate, recently submitted a $975,000 settlement of a wage and hour collective action for approval.

SCOTUS Rules Equitable Tolling Does Not Save Successive Class Action Lawsuits

On June 11, 2018, the Supreme Court of the United States issued a landmark decision in China Agritech, Inc. v. Resh, addressing a split in the federal circuit courts of appeal, arising from differing applications of the equitable tolling rules articulated in two prior Supreme Court decisions, American Pipe & Construction Co. v. Utah (1974) and Crown, Cork & Seal Co. v. Parker (1983). In China Agritech, the Court examined whether, following denial of class certification in a putative class action, a would-be class member may commence a new class action beyond the time allowed by the applicable statute of limitations, “in lieu of promptly joining an existing suit,” as permitted in American Pipe, or filing an individual action, as permitted under Crown, Cork. The Court answered in the negative: equitable tolling does not apply to save subsequent class actions from the applicable statute of limitations.

Class Action Stacking Is Not Permitted, U.S. Supreme Court Rules

Once class action certification has been denied, a putative class member may not start a new class action beyond the applicable statute of limitations, the U.S. Supreme Court has ruled, 9-0, in an opinion by Justice Ruth Bader Ginsburg. China Agritech, Inc. v. Resh, No. 17-432 (June 11, 2018). Justice Sonia Sotomayor filed an opinion concurring in the judgment.

The Supreme Court Will Rule on Data Breach Class Arbitration Suit

The U.S. Supreme Court recently granted a petition for review of a data breach lawsuit addressing the issue of whether parties can pursue a class arbitration when the language in the arbitration agreement does not explicitly allow for such, Lamps Plus, Inc. v. Varela , No. 17-988, certiorari granted April 30, 2018. The Court will have the opportunity to clarify its 2010 decision in Stolt-Nielsen v. AnimalFeeds International Corp., 559 U.S. 662 (2010) in which the Court ruled that parties cannot be forced into class arbitration, “unless there is contractual basis for concluding [they] agreed to do so”.

Supreme Court Upholds Class Action Waivers in Employment Arbitration Agreements

The U.S. Supreme Court issued a highly anticipated decision on May 21, 2018, ruling that class and collective action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act (FAA) and do not violate Section 7 of the National Labor Relations Act (NLRA). The 5-4 decision, written by Justice Neil Gorsuch in Epic Systems Corp. v. Lewis and two other cases consolidated with Epic Systems, allows employers to require workers to arbitrate legal claims on an individual basis, in effect prohibiting class or collective cases.