Archives: Rule 23

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

Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement

By Greg Mersol on February 2, 2021 Posted in Rule 23

As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule … Continue Reading

District Court Decertifies Hostile Environment Sexual Harassment Suit Against Trucking Company

By Greg Mersol on January 22, 2019 Posted in FLSA, Rule 23

Most employment class actions today are wage and hour matters, but class actions for alleged discrimination are still brought and can present their own unique challenges for both plaintiffs and the defense. Apart from the procedural differences between Fair Labor Standards Act collective actions and Rule 23 class actions, one key difference between wage and … 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

California Off-the-Clock Case Involving Independent Contractors Crumbles

By Greg Mersol on January 9, 2019 Posted in Independent Contractors, Off-the-clock, Rule 23

Extensive expert report still fails to establish fairness and manageability for trial. A growing number of courts are questioning classwide proof in off-the-clock cases, and those examining expert testimony in such matters are increasingly coming to the conclusion that they cannot be fairly managed for trial. We’ve blogged this issue several times (see, for example, … Continue Reading

Third Circuit Reverses Rule 23 Certification in ‘Off the Clock’ Case

By Greg Mersol on January 8, 2019 Posted in FLSA, Rule 23

Ruling also touches upon FLSA conditional certification order Many wage and hour cases filed today try to name popular targets and to rely upon tried and true allegations. Unfortunately for employers, this is at times a successful playbook, particularly when settlement is the primary goal. That approach, however, doesn’t always work, particularly if the district … Continue Reading

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

By John Lewis on September 27, 2018 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

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

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

By Greg Mersol on January 27, 2017 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

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

By Greg Mersol on August 12, 2016 Posted in Rule 23

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

By John Lewis and Dustin Dow on March 25, 2016 Posted in FLSA, Rule 23

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

California District Court Finds Bankrupt Named Plaintiffs Not Adequate Representatives

By Greg Mersol on October 15, 2014 Posted in Rule 23, Wage and Hour

Anyone questioning whether the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has had an impact need look no further than the decision in Alakozai v. Chase Investment Services Corp., Case No. CV 11-09178 SJO (JCx) (C.D. Cal. Oct. 6, 2014). The Alakozai matter was a wage and hour … Continue Reading

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

By John Lewis on October 14, 2014 Posted in Discrimination, Rule 23, Title VII

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

By Greg Mersol on June 18, 2014 Posted in Class Certification, FLSA, Rule 23

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

By Greg Mersol on May 22, 2014 Posted in FLSA, Overtime Claims, Rule 23

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

By Greg Mersol on May 16, 2014 Posted in Rule 23, Wage and Hour

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

By Greg Mersol on May 9, 2014 Posted in ERISA, FLSA, Retail, Rule 23

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

Ninth Circuit Reverses District Court’s Refusal To Certify Age Discrimination Class

By Greg Mersol on May 7, 2014 Posted in Discrimination, Rule 23

The most famous, if fictional, San Francisco police Inspector was, of course, Inspector Harry Callahan of the Dirty Harry succession of Clint Eastwood films. The first Dirty Harry movie came out in 1971when its star, known then chiefly by his roles in westerns, was 41 years old. There were a total of five films with … Continue Reading

Massachusetts Court Refuses to Certify Case Involving Alleged Independent Contractor Misclassification

By Greg Mersol on March 19, 2014 Posted in Rule 23

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

By John Lewis on March 11, 2014 Posted in Rule 23

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

New York District Court Dismisses Putative ERISA Class Alleging Illegal Kickbacks

By Greg Mersol on March 5, 2014 Posted in ERISA, Rule 23

Sometimes in the rush to meet Rule 23(a) and (b)’s requirements, what gets overlooked is whether there is any underlying claim in the first place. In a refreshing opinion, the Southern District of New York disposed of a claimed ERISA class action for the reason that, irrespective of any class allegations, the defendant was not … Continue Reading

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

By John Lewis on January 22, 2014 Posted in Class Certification, 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

By Greg Mersol on January 15, 2014 Posted in Collective Action, FLSA, Rule 23, Wage and Hour

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

By John Lewis on November 19, 2013 Posted in Class Certification, Rule 23

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