Junk fax case presents opportunities for some employment cases
Identifying potential class members is not an issue in most employment cases, as the employer likely has any number of employment records for each of the claimants, including personnel files, electronic data, tax forms, time records, and the like, many of which are required to be kept for a set period of time. But what if the records no longer exist or if the claims depend on data that cannot be located or readily retrieved?
That was the issue the Sixth Circuit faced in Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc., Case No. 16-3741 (6th Cir. July 11, 2017). In Sandusky Wellness, the plaintiff sought to bring a claim under the Telephone Consumer Protection Act (TCPA) and specifically the Junk Fax Protection Act Amendments of 2005 due to the plaintiff’s receipt of an unsolicited facsimile transmission. The facts giving rise to the case appear to have been largely undisputed. The defendant, a distributor of medical and pharmaceutical products, sent a fax to 40,343 providers based on a list of 53,502 names it had purchased as customer leads. Importantly, many of the names on the original list were pre-existing company customers that had in some fashion consented to the sending of fax solicitations. Eighteen months after the fax was sent, the specific names and numbers were deleted in the ordinary course of business. Thus, there was no record of who the recipients of the fax from the original list were and, similarly, no way to determine which of those recipients had consented through a prior business relationship. Continue Reading
It has become almost part of the plaintiff playbook to bring wage and hour claims despite lawful employer policies by claiming some sort of “class-wide” policy of deviating from those policies. Sadly, this tactic works at least as often as not in collective action litigation, where many courts are quick to conditionally certify even questionable claims with the expectation that the employer will simply settle them. A recent case from the District of Massachusetts shows that this is not always the case.
On July 13, 2017, the California Supreme Court rejected lower court holdings that limited an employee’s ability to secure statewide employee contact and employment information in a representative PAGA action, when the plaintiff only worked in one of the employer’s stores.
United States lawsuits involving the law of Afghanistan are uncommon, but it is common for employees to bring suit based on work done abroad generally, and not just in that one country. A recent case, however, illustrates that while the United States may be a more convenient forum, even a class action may founder if the law of the host country provides for no relief.
Supervisory employees’ claims derailed by merits
Employees at O’Hare Encounter Delays of a Different Kind
Last Friday, the U.S. Department of Justice (DOJ), in a rare move, changed its position in a class waiver case pending before the U.S. Supreme Court. On Jan. 13, 2017, the Court granted certiorari in three consolidated cases to resolve whether arbitration agreements with class and collective waivers are enforceable under the Federal Arbitration Act (FAA) despite the National Labor Relations Board’s (NLRB’s) current interpretation of Sections 7 and 8 of the National Labor Relations Act (NLRA). We have extensively covered the lengthy run-up to the cases involving Epic Systems Corp., Ernst & Young and Murphy Oil USA Inc., including the grant of certiorari, in a Jan. 17, 2017, blog 
One of the difficulties of class action litigation that continues to vex employers is the frequent inability to obtain meaningful review of certification decisions. Because, the reasoning goes, certification orders are interlocutory in nature, there is no right of immediate review. While since 1998 there has been the potential for review of orders granting or denying certification of Rule 23 class actions under Rule 23(f), the decision whether to review is purely discretionary, akin to a petition for writ of certiorari. That discretion has been exercised in such a way that review of even highly questionable decisions is frequently unavailable and cases can continue to proceed and to increase cost and risk even while a petition for review is pending. These problems are even worse in so-called “conditional certification” decisions under the Fair Labor Standards Act (FLSA), where no review is available at all.
