Archives: Class Certification

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Court Refuses to Certify Class Due to Lack of Adequacy of Class Counsel

Class action litigation is not for amateurs We’ve commented before in this blog on cases in which courts declined to certify employment actions due to adequacy of class counsel. A recent case reflects that some courts will look not only to the presence or absence of conflicts or litigation misconduct but also to the plaintiffs’ counsel’s … Continue Reading

Eighth Circuit Stays the Course in the Cellular Sales of Missouri Opinion, Rejecting the NLRB’s Arguments Against Class Waivers

Following in the wake of an earlier opinion, the Eighth Circuit rebutted the National Labor Relations Board’s (“Board”) arguments that by requiring employees to enter into arbitration agreements with a class and collective action waiver, it violated the National Labor Relations Act (“NLRA”). This comes only a week after the Seventh Circuit ruled in favor … Continue Reading

California Supreme Court Tells Employers to Sit a Spell While Courts Review Individual Factors for Suitable Seating

“Shut the door. Have a seat.” The phrase immediately conjures emotions from the recipient. Most likely, life-changing (typically bad) news is about to be imparted. For Mad Men fans, it harkens to the third-season finale when the partners decide to split and start their own firm (and when Betty finally tells Don to take a … Continue Reading

New York District Court Grants Summary Judgment for Employer in Gawker Intern Case

Litigation Over Interns Dries Up Internship Opportunities The natural and probable consequence of litigation over unpaid internships was that such opportunities would disappear because the risk of litigation for even a legitimate program would outweigh the likely benefit. The result of the much-touted Gawker intern litigation underscores that reality. We’ve blogged about the Gawker intern … Continue Reading

The Next Chapter – Uber Responds to District Court Order With a New Arbitration Agreement

Not only did Uber respond to the district court’s December 9, 2015, ruling (discussed in our December 11 blog) with an immediate notice of appeal, but on December 11 it rolled out a new arbitration agreement for its drivers. This maneuver has garnered considerable media attention and prompted the plaintiffs to file an emergency motion … Continue Reading

District Judge Rules Uber’s Arbitration Agreements Unenforceable on Public Policy Grounds

On September 2, we addressed the much-publicized O’Connor v. Uber Technologies, Inc. case (No. 13-cv-03826-EMC) pending before the U.S. District Court for the Northern District of California. In O’Connor, a group of 160,000 current and former drivers contend that they were Uber’s employees rather than independent contractors and hence entitled to protections provided by the … Continue Reading

Northern District of California Certifies Part of a Class Against Uber

Much is being reported in the media about the decision of the United States District Court for the Northern District of California certifying a class of drivers for the Uber ride service who contended that they were employees, not independent contractors.  O’Connor v. Uber Technologies, Inc., Case No. C-13-3826 EMC (September 1, 2015). The case … Continue Reading

Video Interview: Discussing Social Media and Class Actions with LXBN TV

Following up on my recent post discussing the use of social media for class action notices in a lawsuit filed against Gawker Media, I had the opportunity to discuss the subject with Colin O’Keefe of LXBN. In the interview, I explain what’s happening in this specific case and how it’s laid some ground rules for the … Continue Reading

Merits Trump Certification Issues in Two Southern District of New York Cases

Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate, particularly where the issues of the merits and certification may overlap.  Despite this pronouncement, plaintiffs often assert that courts should … Continue Reading

District Court Refuses to Certify Class of “Non-Liturgical” Protestant Navy Chaplains

Given the rich diversity and array of religions, and the First Amendment prohibitions both on the establishment of religion and impeding the free exercise of religion, the appointment and promotion of chaplains in the military has to be a singularly daunting task.  Those same difficulties ultimately proved to be the unraveling of a class challenging … Continue Reading

The California Court of Appeal Disregards Differences Among Cell Phone Plans; Orders Reconsideration of Refusal to Certify Class Seeking Reimbursement of Employee Expenses

We are now seeing “bring your own device policies” in the class action context, and at least one court has glossed over differences among cell phone plans and usage to leave open the possibility of certifying a class in that context. In Cochran v. Schwan’s Home Service, Inc., Case No. B247160 (Cal. App. 2d Dist., … Continue Reading

Court Rejects Pseudo-Expert Reports and Refuses to Certify Off-the-Clock Case

Off-the-clock cases involving call centers have been in vogue for a number of years despite lingering issues regarding whether they can truly be resolved on a class-wide basis.  A recent case from the District of Maryland, Faust v. Comcast Cable Communications Management, LLC, Civil Action No. WMN-10-2336 (July 15, 2014), suggests that they cannot.  Further, … Continue Reading

California Supreme Court Eases Path Toward Class Certification of Independent Contractor Misclassification Claims

Managing independent contractor relationships requires a delicate balance, perhaps best described (unknowingly, of course) by the band .38 Special in the song “Hold On Loosely”: Just hold on loosely But don’t let go If you cling too tightly You’re gonna lose control Maintaining too much control causes the loss of control.  And so it goes … Continue Reading

Interns Win One, Lose One, In Having Misclassification Cases Conditionally Certified In New York

There has been a great deal of coverage involving litigation by interns against various media and entertainment companies in New York.  We won’t recount the many articles, blogs, and discussions about this issue.  If you need a quick summary of the law, the U.S. Department of Labor, in its Fact Sheet # 71, sets forth … Continue Reading

California Supreme Court (!) Issues Strong Pro-Defense Wage and Hour Class Action Decision

“Depending on the nature of the claimed exemption and the facts of a particular case, a misclassification claim has the potential to raise numerous individual questions that may be difficult, or even impossible, to litigate on a classwide basis.” “[T]rial courts deciding whether to certify a class must consider not just whether common questions exist, … Continue Reading

Moldy Washing Machines at the Supreme Court: A Platform for Further Development of Rule 23?

Co-Authored By: Dustin M. Dow Three cases about moldy washing machines currently sit at the U.S. Supreme Court, waiting for their names to be called.  The cases are nearly identical consumer products class actions, and they have enormous potential to shape the parameters of class action jurisprudence—if only they could get their day in court. … Continue Reading

California Courts Deny Certification In Wage and Hour Cases Based On Claim That Employer “Should Have Known” Of Unpaid Time

Back in October, we reviewed a number of California cases that, for the most part, denied certification in cases in which certification would have largely been a foregone conclusion only a few years ago.  The first few days of 2014 have been quiet on the class action front so far, so let’s review a few … Continue Reading

Cullen v. State Farm – The Ohio Supreme Court Returns to Rule 23 Issues

This blog post was co-authored by: Patrick T. Lewis, Michael D. Meuti and Robert J. Tucker On November 5, 2013, the Supreme Court of Ohio adopted the class certification principles announced in the U.S. Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast v. Behrend.  In Cullen v. State Farm Mutual Automobile Ins. … Continue Reading

New York District Court Denies Certification and Conditional Certification of Class of Personal Bankers

One can only imagine the outcome the plaintiffs’ attorneys were anticipating:  a case against the financial industry, involving non-exempt employees subject to an auto-deduct policy for meal periods, in the Southern District of New York.  It seems like a laundry list of many types of claims that have been certified, and they no doubt expected … Continue Reading

Stammco, L.L.C. v. United Tel. Co. of Ohio, Addressing Rule 23 Requirements for Class Certification in Ohio

After eight years and two visits, the Ohio Supreme Court has issued an opinion that not only addresses key developments in federal class action jurisprudence, but also decided the underlying class certification question.  The resulting opinion will have a major impact on Ohio class action law in all substantive areas, but will certainly impact employment … Continue Reading

Domino’s Pizza Drivers Fail to Deliver Common Circumstances to the Eighth Circuit

Authored by: Ericka Spears Despite their work uniforms and company cars, pizza delivery drivers do not have much in common (at least according to the Eighth Circuit). Recently, in Luiken v. Domino’s Pizza, LLC, No. 12-1216, 2013 WL 399248 (8th Cir. Feb. 4, 2013), the court found that a purported class of 1600 Domino’s Pizza … Continue Reading

Court Denies Conditional Certification of Class of Debt Collectors

If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more likely than not, the employer’s chances improve either when (1) the claims are for off-the-clock time; or (2) the … Continue Reading

Comcast Oral Argument Raises Interesting Questions Surrounding the Application of Daubert to Class Certification

On November 5, 2012 the U.S. Supreme Court heard arguments in Comcast Corporation v. Behrend, No. 11-864 which arose from an action brought by Philadelphia cable subscribers alleging that Comcast monopolized Philadelphia’s cable market and excluded competition in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2.  Transcript of the … Continue Reading
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