Articles Discussing General Issues In Employment Law Class Actions

Since October 24, 2019, blind and vision-impaired individuals have filed more than ninety lawsuits claiming that the public accommodations provisions of the Americans with Disabilities Act (Title III) and its state and local equivalents require retailers and restaurants that offer gift cards to offer those cards in Braille.

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

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.

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).

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.

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.

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

The United States Supreme Court recently issued its opinion in Lamps Plus v Varela, holding that a class action may not be ordered to arbitration unless the parties’ arbitration agreement expressly states that class claims may be arbitrated.

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.

In June of 2018 we reported that the U.S. Supreme Court granted a petition for review of a data breach lawsuit addressing the issue of whether parties can pursue 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. By granting the petition for certiorari, the Court afforded itself 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”. The Supreme Court has finally issued its decision, ruling on April 24 2019, that arbitration agreements must explicitly include a class arbitration clause for parties to arbitrate class action claims.

Executive Summary: Approximately one year ago, in Epic Systems Corp., the United States Supreme Court upheld the enforceability of mandatory arbitration agreements that prohibit employees from bringing employment claims on a class or collective basis – settling a longstanding circuit split over whether such provisions violate federal labor law. Just this week, the Supreme Court issued another important ruling in Lamps Plus, Inc., which clarifies that an employer cannot be compelled to arbitrate class and collective claims, unless the express language of its arbitration agreement authorizes such action. This decision marks the continued approval of arbitration agreements that require employees to individually arbitrate claims against their employers.

On April 24, 2019, in a 5-4 opinion written by Chief Justice Roberts, the U.S. Supreme Court held that even if an arbitration agreement is ambiguous as to whether classwide arbitration is permitted, that is insufficient to find that the parties consented to class arbitration. Lamps Plus, Inc. v. Varela, No. 17–988 (2019). In doing so, the Court emphasized that there is a fundamental difference between class arbitration and the individualized form of arbitration envisioned by the Federal Arbitration Act (FAA). The Court’s decision firmly reinforces decades of precedent that arbitration is a matter of consent and aligns with its recent trend of pro-arbitration opinions.

The United States Supreme Court today ruled that arbitration agreements must explicitly provide for class arbitration for that process to be invoked, bolstering the Court’s 2018 decision in Epic Systems Corp. v. Lewis which held that class action waivers in arbitration agreements signed by employees are enforceable and do not violate the National Labor Relations Act. In today’s Lamp’s Plus Inc. et al. v. Frank Varela decision, the Court held that an arbitration agreement that was ambiguous as to whether class arbitration was available “does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice the principal advantage of arbitration.’” In doing so, the Court overturned an appellate court that, using general principles of contractual interpretation, found that the ambiguity in the agreement as to the availability of class arbitration should be construed against the employer who had drafted the agreement.

Class action arbitration is such a departure from ordinary, bilateral arbitration of individual disputes that courts may compel class action arbitration only where the parties expressly declare their intention to be bound by such actions in their arbitration agreement, the U.S. Supreme Court has ruled in a 5-4 decision. Lamps Plus, Inc. v. Varela, No. 17-988 (Apr. 24, 2019). The Supreme Court said, “Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis.”