Articles Discussing Class Action Certification

A three-judge panel of the Third Circuit has struck down U.S. District Judge Arthur J. Schwab’s decision granting class certification in a suit brought by mortgage loan officers claiming they were denied overtime pay by their employer. Reinig v. RBS Citizens, NA, No. 17-3464 (3d Cir. Dec. 31, 2018).

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.”

The U.S Court of Appeals for the Tenth Circuit recently vacated a Utah district court’s finding that a class of truckers satisfied Rule 23 for purposes of settling two wage-hour actions due to a cursory review below, setting aside a multi-million dollar settlement and remanding the case for further proceedings.

J.B. Hunt Transport Inc., one of the largest transportation logistics companies in North America, recently prevailed on a motion to decertify a class of around 11,000 current and former truck drivers, just six weeks before trial.

On May 3, 2018, in Sali v. Corona Medical Center, et al., Case Number 15-56460, a putative wage-hour class action, the U.S. Court of Appeals for the Ninth Circuit held that evidence does not have to be admissible for it to be considered in support of class certification. The Ninth Circuit concluded that the district court erred by striking a declaration at the class certification stage because district courts cannot “decline to consider evidence solely on the basis that the evidence is inadmissible at trial.” Id. at 10.

Those who follow developments in wage and hour class actions know that challenges to the exempt status of assistant managers are quite common.

The U.S. Court of Appeals for the Second Circuit recently held that district courts can decertify a class after a jury verdict but before entry of final judgment. In Mazzei v. Money Store, 2016 U.S. App. LEXIS 12994 (2d Cir. July 15, 2016), the appellate court affirmed the United States District Court for the Southern District of New York’s post-jury-verdict decertification of a class of home loan borrowers, thereby overturning a $55 million jury award.

Employers recently gained support for one of their defenses to class claims, and in a case against a union no less, after a federal court in Illinois found that union members’ claims may require individualized questions and therefore were not appropriate for class treatment. See Riffey v. Rauner, et al., 10-cv-02477 (N.D. Ill. June 7, 2016).

Facebook, Inc. (“Facebook”) recently filed a motion to dismiss class action claims alleging that Facebook sent unsolicited text messages to users containing birthday announcements in violation of the Telephone Consumer Protection Act (“TCPA”). The TCPA generally restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment, and limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages and fax machines.

On December 15, 2015, several amendments to the Federal Rules of Civil Procedure are scheduled to take effect, including one which may assist employers to reduce the cost of defending class actions. The scope of permissible discovery under Rule 26 will no longer be defined as “reasonably calculated to lead to the discovery of admissible evidence.” Amended Rule 26(b)(1) will instead require discovery to be proportional to the needs of the case. Parties may obtain discovery that is relevant to any party’s claim or defense and proportional to the needs of the case, with consideration of the following five factors: (1) the importance of the issues at stake in the action; (2) the parties’ relative access to relevant information; (3) the parties’ resources; (4) the importance of the discovery in resolving the issues; and (5) whether the burden or expense of the proposed discovery outweighs its likely benefit.

Many employers who are familiar with class actions know that merits-based discovery is generally impermissible before a class has been certified. As a result, these employers often push back – without much forethought – on merits-based discovery that they consider to be “invasive” during the pre-certification stage.

The recent decision by the federal district court for the Southern District of California in Coleman v. Jenny Craig, Inc. is a welcome decision for employers in the spate of post-Brinker meal break cases. In denying reconsideration of its decision denying class certification, the court rejected the plaintiff’s argument that a California Court of Appeal’s decision in Benton v. Telecom Network Specialists, Inc., previously discussed on this blog, was “controlling law.” In Benton, the court granted class certification after determining the theory of liability – that the employer violated the law by failing to adopt a California-compliant meal and rest period policy – was appropriate for class treatment.