Archives: Class Certification

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Dead End for Class Certification? Ninth Circuit Provides Roadmap for Defending Independent Contractor Misclassification Class Claims

Photo of Todd LebowitzPhoto of Matthew GoodmanBy Todd Lebowitz and Matthew Goodman on Posted in Class Action, Class Certification
For businesses using independent contractor vendors, misclassification claims are usually well-suited for class certification. A plaintiff’s path toward certifying a class can be relatively smooth when all vendors of a particular kind are treated as contractors. The argument goes that if one is misclassified, all are misclassified. But a new Ninth Circuit ruling may help … Continue Reading

California Court Affirms Value of Employee Time Punches in Defeating Class Certification

Photo of Joseph S. PersoffPhoto of Vartan MadoyanBy Joseph S. Persoff and Vartan Madoyan on Posted in Class Certification
UPDATE: On August 11, 2021, the California Supreme Court de-published its decision in Salazar v. See’s Candy Shops Inc., the subject matter of this blog. As a result of the decertification, the decision no longer has precedential effect and cannot be cited as authority in other cases. While the court did not state its reason … Continue Reading

Seventh Circuit Decertifies Sexual Harassment Class That Relied on Novel Theory

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are not employees and are already incarcerated, so they require very different remedies than those generally used in the workplace. … Continue Reading

Florida Court Denies Conditional Certification in Tip Credit Case

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
Court also rejects ‘fail-safe class’ allegations The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims against it. A recent case, however, has rejected two fairly common problems inherent in these kinds of cases. In Balassiano v. Fogo De … Continue Reading

Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
Tip credit issues are inherently difficult. Section 3(m) of the Fair Labor Standards Act permits an employer to count tips toward a portion of a tipped employee’s wages to meet the minimum wage (and in some instances overtime) requirements of the Act. The Department of Labor, however,  has gone back and forth over the requirements for … Continue Reading

Denial of Conditional Certification Highlights Importance of Handbook Policies

Photo of Todd DawsonBy Todd Dawson on Posted in Class Certification
A recent decision from the Eastern District of Wisconsin serves as a strong reminder that well-crafted handbook policies can sometimes save the day for employers in proposed Fair Labor Standards Act collective actions. Amandah v. Alro Steel Corp., No. 19-CV-1607-JPS (E.D. Wis. Aug. 21, 2020). The plaintiff in Amandah brought a proposed collective action against … Continue Reading

Illinois District Court Denies Certification of ADA Claims in Airplane Mechanic Case

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
It’s been awhile since we’ve addressed attempts at bringing class action disability claims (September 27, 2013 and March 6, 2014), but as we’ve noted in the past, they make poor candidates for class action treatment. Disability claims almost by definition involve more, and more highly individualized, inquiries and quickly run into trouble satisfying Rule 23’s … Continue Reading

California District Denies Certification of Race Claim Involving Claimed “English-Only” Restaurant Policy

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Discrimination
While class actions may prove lucrative for the plaintiffs who bring them, most cases just aren’t suitable for class action treatment and many would likely fare far better if the plaintiffs simply limited themselves to a single employee or location. Case in point. In Guzman v. Chipotle Mexican Grill, Inc., Case No. 17-cv-02606-HSG (N.D. Cal. … Continue Reading

California Court of Appeal Concludes Practice Is More Important Than Policy for Class Certification

Photo of Joseph S. PersoffBy Joseph S. Persoff on Posted in Class Certification
A California Court of Appeal issued a Christmas Eve ruling setting out the significance of a written employment policy for class certification purposes. In Cacho v. Eurostar, Inc., the court held that a correct, yet incomplete, meal break policy does not support class certification, absent other evidence suggesting that common, rather than individual, issues predominate. The court … Continue Reading

Do Daubert standards apply at the certification stage? Ninth Circuit splits with itself

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Wage and Hour
It is fitting that the day after Halloween the Ninth Circuit issued its denial of rehearing en banc in Sali v. Corona Regional Medical Center, Case No. 15-56460, because the issue it raises, like Michael Myers in the Halloween movie series, should have been dead long ago. We’ve blogged the issue of whether Daubert standards … Continue Reading

O’Connor v. Uber: The Ninth Circuit Unravels the Class Certification Orders in Appeals From Four Related Actions

Photo of John LewisBy John Lewis on Posted in Class Certification, Rule 23
In O’Connor v. Uber Technologies, Inc., a Ninth Circuit panel, in four related appeals from District Judge Edward Chen’s rulings, reversed the denial of Uber Technologies Inc.’s motions to compel arbitration, also reversed the district court’s class certification orders and found the Rule 23(d) orders entered by the district court were moot. The opinion impacts … Continue Reading

New York District Court Denies Conditional Certification of Class of Café Managers

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, FLSA
The United States District Court has rendered a decision that is interesting in at least two respects. First, it is a lengthy and thoughtful opinion denying certification of a putative class of 1,100 café managers under the Fair Labor Standards Act (FLSA). Second, the court based the decision, at least in part, on the recent … Continue Reading

Experts Must Satisfy Daubert Standards at Certification Stage

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
D.C. District Court Follows Dukes Admonition Nearly seven years ago, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court addressed, at least in significant respect, the question of whether experts must satisfy Daubert standards at the class certification stage. In that case, the plaintiffs sought to use expert testimony about claimed … Continue Reading

California District Court Denies Certification of Class of Retail Loss Prevention Employees

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
Plaintiffs’ Arguments Miss the [fill in the blank] One of the justifications and requirements for class treatment is that the plaintiffs’ claims all can be resolved in one stroke. This concept, which is embodied in the related elements of commonality and typicality and central to the Supreme Court’s Dukes decision, is frequently glossed over by … Continue Reading

Ninth Circuit Finds Evidence at Class Certification Not Required to Be Admissible − The Last Word on the Issue?

Photo of John LewisBy John Lewis on Posted in Class Certification, Wage and Hour
In a 28-page opinion, a panel of the Ninth Circuit overturned a district court’s denial of class certification, in part, because the lower court required supporting evidence to be admissible. This decision certainly represents a split among the circuits and is also arguably contrary to the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. … Continue Reading

Supreme Court Limits Review of Certification Denials

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification
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 … Continue Reading

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

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Rule 23
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

Photo of John LewisBy John Lewis on Posted in Class Certification, Collective Action, National Labor Relations Act
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

Photo of Jeffrey VlasekBy Jeffrey Vlasek on Posted in Class Certification
“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

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, FLSA
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

Photo of John LewisBy John Lewis on Posted in Class Certification, Independent Contractors, PAGA
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

Photo of John LewisBy John Lewis on Posted in Class Certification, Independent Contractors, PAGA
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

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Independent Contractors
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
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