Archives: Class Action Litigation

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Third Circuit Rejects District Court’s Trial-Before-Certification Plan

Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same time. They noted that combining the two would create procedural anomalies and that doing so would make case resolution unwieldy. They … Continue Reading

Sixth Circuit Sets Out Guidelines for Lodestar Fee Awards in Class Actions

By Greg Mersol on August 18, 2020 Posted in Class Action Litigation

Attorney fee awards are a major driver of class action litigation – both in the employment and other contexts. How they are awarded, and what is “reasonable” has been an ongoing source of contention in many cases. A recent opinion from the Sixth Circuit provides some guidance and also places limits on methodology used by … Continue Reading

Dealing With COVID-19 In Your Workplace Without Inviting Future Class Actions

By Gilbert Brosky on March 23, 2020 Posted in Class Action Litigation

You don’t need us to tell you that it’s not an easy time to be an employer. With ever growing concerns over employee safety, business operations, costs, and complying with new and rapidly evolving legislation as a result of COVID-19, getting your business through the next day can seem overwhelming enough. However, it is important … Continue Reading

The Fifth Circuit Agrees With Its Sister Circuits That Class Arbitrability Is a Gateway Issue for Courts, Not Arbitrators

By John Lewis on July 24, 2019 Posted in Arbitration, Arbitration Agreements, Class Action Litigation

In a predictable decision, the Fifth Circuit has held that the availability of class arbitration is a gateway issue for the courts to decide, absent “clear and unmistakable” language in the arbitration agreement to the contrary. The appellate court didn’t find such language in 20/20 Commc’ns v. Crawford, Case No. 18-10260 (5th Cir. July 22, … Continue Reading

Texas District Court Refuses to Certify Class of Nurses in Wage Antitrust Case

By Greg Mersol on January 24, 2019 Posted in Class Action Litigation, Wage and Hour

Expert’s Report Didn’t Adequately Explain Causation While antitrust cases are often good candidates for class action treatment, it is still important for the plaintiffs to demonstrate a connection between the alleged anti-competitive conduct and the alleged harm, as a recent case from the Western District of Texas found. In Maderazo v. VHS San Antonio Partners, … Continue Reading

Courts Remain Skeptical of Certifying Data Privacy Class Actions

By Greg Mersol, James Morrison and Curt Roy Hineline on January 14, 2019 Posted in Class Action Litigation, Rule 23

In this era where there appears to be a new data security incident announced each month, there is surprisingly little class certification jurisprudence for data security class actions. Indeed, to date we know of only four decisions that have addressed class certification of data privacy actions, excluding settlement certification, and only one of those addresses … Continue Reading

Fifth Circuit Holds That the Company in Class Action Waived Its Right to Arbitrate Because of Litigation Conduct

By John Lewis on December 4, 2018 Posted in Arbitration, Class Action Litigation

The standards for determining when a party waives its right to arbitrate through participation in litigation have never been uniform among the circuits or easily applied. The recent Fifth Circuit opinion in Forby v. One Technologies, L.P. (Case No. 17-10883, decided Nov. 28, 2018) illustrates the difficulty of applying the “prejudice” requirement in a consumer … Continue Reading

Court Reduces Proposed Attorney Fee Award by More Than 90 Percent

By Greg Mersol on October 19, 2018 Posted in Class Action Litigation, Wage and Hour

It’s OK. The Attorneys Still Get More Than $1,000 Per Hour One of the drivers of the increased number of wage and hour cases is the prospect of handsome attorney fee awards. But while percentage fee awards may indeed result in large payoffs, courts are increasingly looking at whether such large amounts are reasonable under … Continue Reading

California Court of Appeals Affirms Employer Class Action Wage and Hour Win at Trial

By Greg Mersol on October 16, 2018 Posted in Class Action Litigation, Wage and Hour

Employer Performance-Based Rate Scheme for Automobile Repair Upheld Under California Law With many of the easy targets for wage and hour matters gone (e.g., misclassification of assistant managers), plaintiffs’ counsel have increasingly turned to technical overtime or minimum wage violations as a vehicle to bring class or collective action litigation. As a recent claim reflects, … Continue Reading

[Gasp!] Epic Systems Decision Applies to FLSA Claims

By John Lewis and Greg Mersol on August 17, 2018 Posted in Class Action Litigation, Epic Systems

No shocking outcome here. In Gaffers v. Kelly Services, Inc., Case No. 16-2210 (6th Cir. Aug. 15, 2018), the Sixth Circuit held that the Supreme Court’s decision in Epic Systems v. Lewis, 138 S. Ct. 1632 (2018) [which we blogged here] applies to claims under the Fair Labor Standards Act (FLSA). Gaffers itself was a garden-variety … Continue Reading

Federal Circuit Affirms Dismissal of Independent Contractor Misclassification Claims

By Greg Mersol on July 18, 2018 Posted in Class Action Litigation

My father grew up in Nazi-occupied Europe during World War II and would tell the story of how an official would come to his family’s home to modify their radio so they could not receive BBC broadcasts. Shortly after the official left, the family would open the radio box and fix the clumsy modifications that … Continue Reading

The Supreme Court Confirms That Class Plaintiffs Must Take Their Bite of the Apple Sooner Rather Than Later

By Jeffrey Vlasek on June 12, 2018 Posted in Class Action Litigation, Rule 23

Although he is remembered as a Los Angeles Laker, Hall of Famer Kareem Abdul-Jabbar, as basketball trivia buffs know, actually began his NBA career on the Milwaukee Bucks. After turning down an offer to play for the Harlem Globetrotters, Abdul-Jabbar was drafted by the Bucks in 1969, where he won the MVP in his second … Continue Reading

Texas District Court Denies Certification of Claims Involving Claimed Racial Preferences in Requests to Staffing Agency

By Greg Mersol on May 31, 2018 Posted in Class Action Litigation

Class not reasonably ascertainable In the wake of major wage and hour decisions such as last week’s opinion in Epic Systems Corp. v. Lewis, it’s easy to forget that employers continue to face class-action claims in other contexts, particularly with respect to claimed discrimination based on race or gender, and that such claims may be … Continue Reading

The Legality of Class Action Waivers in Arbitration Agreements – SCOTUS Finally Speaks in Epic Systems v. Lewis

By John Lewis and Dustin Dow on May 21, 2018 Posted in Class Action Litigation

The controversy surrounding the validity of employment arbitration agreements with class action waivers has been simmering since at least 2012. Now, with the Supreme Court’s decision in Epic Systems Corp. v. Lewis, we have an answer: They “must be enforced as written” despite any debatable policy within the National Labor Relations Act that suggests otherwise. … Continue Reading

California Court Issues Broad Decision on Illinois BIPA Class Claims

By Melissa Siebert on April 23, 2018 Posted in BIPA, Class Action Litigation

California District Court construes Illinois’s statute more broadly than Illinois’s own courts do. On April 16, 2018, the court in In Re Facebook Biometric Info. Privacy Litigation, 3:15-cv-03747 (N.D. Cal.), certified class action claims under Illinois’ Biometric Information Privacy Act (BIPA). This lawsuit involves Facebook’s Tag Suggestions feature. The plaintiffs in that case claim that … Continue Reading

Independent Contractor Trucker Class Action that Dodged FAA Arbitration Now Moves to the Supreme Court

By John Lewis on February 28, 2018 Posted in Arbitration, Class Action Litigation

As we await the Supreme Court’s decision on the enforceability of class action waivers, the Court has accepted certiorari on another arbitration-related case, this one relating to the application of the Federal Arbitration Act (FAA) to the trucking industry. The U.S. Supreme Court on February 26 granted the certiorari petition of trucking company New Prime, … Continue Reading

Supreme Court Overrules Sixth Circuit (Again) In Class Action Dispute Over Retiree Medical Benefits

By Greg Mersol on February 21, 2018 Posted in Class Action Litigation

Is Yard-Man really dead this time? This issue should never have arisen, the Supreme Court should not have had to address it in 2015, and it shouldn’t have required Supreme Court attention a second time just three years later. But it did. In 1983, in the case of UAW v. Yard-Man, Inc., 716 F.2d … Continue Reading

Courts Deny Certification for Adequacy of Representation in Second Class Action

By Greg Mersol on February 16, 2018 Posted in Class Action Litigation, Collective Action, Wage and Hour

One of the tactics in the current plaintiffs’ wage and hour playbook is to bring a second claim after settlement of an initial class or collective action lawsuit. In these cases, the second set of claims is purportedly brought on behalf of those who did not opt in or participate, or it is for alleged … Continue Reading

Court Dismisses California Class Action Due to Limited California Nexus

By Greg Mersol on April 20, 2017 Posted in Class Action Litigation

It is no secret that California is a desired and favorable forum for class action litigation. It is therefore not surprising that plaintiffs might try to take advantage of that forum even when the connection between employment and California could be questioned. But how far do California’s tentacles reach? In Vidrio v. United Airlines, Case … Continue Reading