Archives: Rule 23

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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

Ninth Circuit Grants 23(f) Review of Denial of Class Certification for Inadequate Representation

We’re all familiar with the basic requirements of Rule 23(a), with the focus most frequently on the issues of commonality and typicality under Rules 23(a)(2) and (3). Numerosity under Rule 23(a)(1) can on occasion be an issue with smaller groups of claimants, but adequacy of representation under Rule 23(a)(4) is not often litigated. In Kaur v. … Continue Reading

Tyson Foods, Inc. v. Bouaphakeo: The Supreme Court Produces a Narrow Holding Involving FLSA Precedent and Rule 23 Principles

Employees have been bringing wage-and-hour collective actions since long before class procedures were officially integrated into the Federal Rules of Civil Procedures in 1966. Section 16(b) of the Fair Labor Standards Act (FLSA) permitted collective actions when it was passed in 1938. In 1946, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 … Continue Reading

District Judge Allows Rail Union to Side Step Rule 23 with Pattern-Or-Practice Claim

A federal district judge in Hammond, Indiana, has permitted a rail union to pursue injunctive remedies in a Title VII pattern-or-practice discrimination claim on behalf of its black members without compliance with Rule 23.  In Brotherhood of Maintenance of Way Employees v. Ind. Harbor Belt R.R. Co., (Case No. 2:13-cv-00018, 2014 WL 4987972,October 7, 2014), … 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

Eighth Circuit Affirms Summary Judgment On Overtime Claims For Class of Tax Professionals

Relatively few FLSA cases are certified and then reach a court of appeals on the merits, but that recently happened before the Eighth Circuit.  In Petroski v. H&R Block Enterprises, LLC, Case No. 13-2076 (8th Cir. May 2, 2014), the plaintiffs were tax preparers who worked for H&R Block.  They brought suit under the FLSA … Continue Reading

West Virginia District Court Refuses To Certify Fail Safe Class

It’s not uncommon to see putative classes pleaded in terms of the violation of a specific statute, such as “all managers misclassified as exempt by defendant” or “all persons harmed by defendant’s discriminatory policies.”  In all likelihood, classes may be pleaded this way due to the attorney’s bravado that, of course, all of the defendant’s … Continue Reading

Florida District Court Rejects ERISA Claims Premised on Alleged FLSA Violations

Plaintiffs in most class and collective actions try to plead their claims in such a way as to exert the maximum pressure against the employer.  In some instances, that raises the issue of whether the plaintiff should assert one, clear claim or several.  Having only one claim places the issues more starkly, but oftentimes plaintiffs … Continue Reading

Massachusetts Court Refuses to Certify Case Involving Alleged Independent Contractor Misclassification

The United States District Court for the District of Massachusetts recently issued a case involving the straight-forward application of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), to a class-wide independent contractor dispute. In Magalhaes v. Lowe’s Home Centers, Inc., Civil Action No. 13-10666-DJC (Mar. 10, 2014), the … Continue Reading

Due for review? The Allstate Insurance Co. v. Jacobsen certiorari petition frames state-court class action due process debate for U.S. Supreme Court resolution

Co-Authored By:  Dustin M. Dow Almost three decades ago, the U.S. Supreme Court explained that state courts had to extend fundamental due process protections to absent class action members.  Now, a new petition for certiorari review presents the Court with the opportunity to demonstrate that it meant what it said. Allstate Insurance Company has petitioned the … 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 District Court Disqualifies Class Counsel for Conflict of Interest

Is more of a good thing a better thing?  In some contexts, not, as reflected by a recent case from the Northern District of California.  In Lou v. Ma Laboratories, Inc., Case No. C 12-05409 WHA (N.D. Cal. Jan. 8, 2014), the plaintiffs brought two class or collective actions against the same employer for claimed … 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

Employers Win Some, Lose Some, in California Cases Started Prior to Dukes

Despite blockbuster cases like Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal. 2012), California remains a hotbed of employment class litigation as a recent spate of cases reflects.  The Dukes case and others have certainly helped to level the playing field … Continue Reading

Indiana District Court Finds Private Equity Firm Potentially Liable in WARN Class Action

This seems to be the month for class action cases presenting unusual issues in combination. Last week we wrote about a class action disparate impact claim of disability discrimination against the obese in which the court ultimately awarded sanctions against the plaintiff.  (Rare on all three counts).  This week we have a WARN Act class … Continue Reading

Choice of Law/Statute of Limitations Thwarts Class

Differences among putative class members are frequently the heart of the employer’s defense to a class action lawsuit.  Such differences implicate the elements of commonality and typicality and possibly even adequacy of representation under Rule 23(a) and also erode or destroy the predominance and superiority requirements of Rule 23(b)(3).  These differences usually spring from the … 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

Dukes Of Hazard: Uniform Auto-Deduct Meal/Break Policy Insufficient to Establish 23(a)(2) Commonality

The Supreme Court’s Wal-Mart Stores, Inc. v. Dukes opinion has once again played Bo and Luke to a plaintiff’s Boss Hogg. The plaintiffs in Raposo v. Garelick Farms LLC, Case No. 11-11943, D. Mass. (July 11, 2013), were truck drivers who made deliveries out of two locations operated by a dairy distribution company.  The company … Continue Reading
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