Archives: Rule 23

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

Fourth Circuit Argues With Itself Over Dukes’ Application

By Greg Mersol on October 24, 2013 Posted in Discrimination, Rule 23

While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern. That issue is whether the judge views class action treatment as an exception to the general rule or, instead, as a fundamental right. … Continue Reading

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

By Greg Mersol on October 1, 2013 Posted in Rule 23, WARN Act

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

By Greg Mersol on July 30, 2013 Posted in Rule 23

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

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

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

By Todd Dawson on July 17, 2013 Posted in Meal and Rest Periods, Rule 23

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

Sixth Circuit Affirms Refusal to Certify Disparate Impact Sex Discrimination Case

By Greg Mersol on May 31, 2013 Posted in Discrimination, EEOC, Rule 23

On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but interestingly found that questions of fact precluding summary judgment on the lead (and now only) … Continue Reading

California Courts Issue Multiple Decisions for Employers in Class Cases

By Greg Mersol on May 17, 2013 Posted in Retail, Rule 23

Just two years ago, a California case declining certification of an action would have been cause for comment. But since then, in 2011 the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); in 2012 the California Supreme Court decided Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th … Continue Reading

Court Refuses To Certify Class of Unpaid Student Interns

By Greg Mersol on May 13, 2013 Posted in Rule 23

Student internships can provide worthwhile benefits to the students involved, who gain experience, contacts, and accomplishments to place on their resumes. Employers, too, can benefit from the work and insight of the intern, but may also want to take advantage of the benefits of free intern time. Recognizing the benefit to the interns, the Department … Continue Reading

Pennsylvania Court Denies Certification Of Disability Discrimination Claims

By Greg Mersol on April 26, 2013 Posted in Discrimination, Rule 23

In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female; in age cases either over or under 40. Despite the demographic changes in the country, there are few … Continue Reading

Surveying the Damages: Comcast Opinion Extends Wal-Mart v. Dukes’ Standards for Class Certification

By John Lewis on March 28, 2013 Posted in Rule 23

Co-Authored By: Dustin M. Dow In the latest class action case before the U.S. Supreme Court, a majority of the Court extended the Wal-Mart v. Dukes analysis to damages and held: proposed damages must be measurable on a classwide basis. The Justices waged yet another class action philosophical battle on Wednesday when the Court issued … Continue Reading

California Court Denies Certification of Class of Costco Managers

By Greg Mersol on October 13, 2011 Posted in FLSA, Retail, Rule 23

California has been the focus of numerous class action wage and hour suits involving retail managers and assistant managers. One reason is that California law defines the executive exemption slightly, but significantly differently than, federal law. Under both the FLSA and California law, courts will consider whether the employee’s “primary duty” is management. While under … Continue Reading

California District Court Denies Certification of Proposed Class Over Employee Expenses

By Greg Mersol on August 30, 2011 Posted in Class Certification, Retail, Rule 23

A class action over socks?! Employers operating in California are subject many state-law employment regulations and the resulting ever-present threat of class action litigation. Suits over employment practice seem to come in waves based on industry and type of employee (e.g. insurance claims adjusters, retail managers) or specific policies (such as the current spate over … Continue Reading

Court Denies Certification of Proposed Class Under COBRA Due to Inadequate Representation

By Greg Mersol on August 18, 2011 Posted in Class Certification, Rule 23

Of all the potential reasons to deny certification under Rule 23(a) (numerosity, commonality, typicality, and adequacy of representation), probably the least commonly used is that of adequacy of representation. Even in those cases, the focus is more often on problems with the named plaintiff than with the attorney bringing the action. A recent Seventh Circuit … Continue Reading

Court Denies Certification of California Rest and Meal Period Class Against Apple

By Greg Mersol on July 26, 2011 Posted in Meal and Rest Periods, Retail, Rule 23

Another court has denied certification of a rest and meal period case under California law, this one relying at least in part on the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, Case No. 10-277, 564 U.S.___ (Jun. 20, 2011). While many courts are simply staying California rest/meal period cases pending the outcome, if there ever … Continue Reading

Another Court Finds Rule 23 State Law Class Actions Incompatible With FLSA Collective Actions

By Greg Mersol on July 1, 2011 Posted in FLSA, Overtime Claims, Rule 23, Wage and Hour

We’ve written several times this year about the wide split in authority regarding whether a plaintiff in a wage and hour case may bring both a collective action under the FLSA and a Rule 23 class action with respect to claimed parallel violations of state law. Apart from concerns over the management of simultaneous “opt-in” … Continue Reading

Court Certifies Class of Black New York City Firefighters In Remediation Phase of Case

By Greg Mersol on June 27, 2011 Posted in Discrimination, Rule 23, Title VII

A recent case from the Eastern District of New York reflects that race discrimination class actions can be brought, and also reflects the type of claim which will likely still survive in the wake of last week’s Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). (See our June 20 post on the … Continue Reading

Supreme Court Rejects Federal Court Order Enjoining State Court Class Action

By Greg Mersol on June 17, 2011 Posted in Rule 23

The United States Supreme Court held on June 16, 2011 that a federal court could not enjoin a state court from considering certification of a class unless it had previously denied certification under essentially the same standard AND the cases have the same parties. See Smith v. Bayer Corp.pdf, Case No. 09-1205 (June 16 2011). True, … Continue Reading

Third Time Isn’t the Charm When Court Refuses to Grant Certification of a State Law Opt-Out Class

By Jeffrey Vlasek on June 6, 2011 Posted in FLSA, Off-the-clock, Rule 23, Wage and Hour

There’s a saying in Hollywood – “The last sequel is the one that doesn’t make any money.” Unfortunately for moviegoers, too often a franchise is exhausted beyond its foreseeable lifespan by a studio looking to cash in on characters one last time before the end, despite an audience’s waning interest in the series. Thus, instead … Continue Reading

Court Certifies Class of Attorneys

By Greg Mersol on May 9, 2011 Posted in Class Certification, Public Sector, Rule 23

Class action litigation always involves lawyers, but it is uncommon for the class itself to consist of lawyers. In One Unnamed Deputy District Attorney v. City of Los Angeles.pdf, Case No. CV-09-7931 (C.D. Cal., Jan. 24, 2011), the court certified a class of Los Angeles deputy district attorneys who had engaged in organizing activity. The … Continue Reading

Too Big to Succeed – Are Class Actions a Proper Procedural Tool or a Means to Coerce Settlements and Enrich a Few?

By John Lewis on April 7, 2011 Posted in Class Certification, Rule 23

In the wake of the oral argument in the mega class action, Wal-Mart v. Dukes, The New York Times ran an interesting April 3, 2011 article by Adam Liptak entitled “When a Lawsuit Is Too Big.” The subtitle, “Class-action suits can be large and impersonal. Critics say this is why they are often unfair to … Continue Reading

South Carolina Court Certifies Race Discrimination Action

By Greg Mersol on March 7, 2011 Posted in Discrimination, Rule 23, Wage and Hour

As many of the postings in this blog reflect, there has been a veritable flood of class and collective actions asserting wage and hour violations. But even apart from Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.), cert. granted, 131 S.Ct. 795 (2010), now pending before the United States Supreme Court, discrimination cases … Continue Reading

District Court Denies Certification of Class of BP Oil Platform Workers Claiming Radiation Exposure

By Greg Mersol on January 31, 2011 Posted in Rule 23

In the wake (no pun intended) of the Horizon gulf oil spill, what could be worse than (a) representing BP; (b) in Louisiana; (c) on a case involving personal injuries allegedly sustained on an oil platform? How about making the injury one for alleged radiation exposure? And the defendant wins! We don’t ordinarily comment on … Continue Reading

Seventh Circuit Finds That Overtime State Class Actions And FLSA Collective Actions Are Not Incompatible

By Joyce Ackerbaum Cox on January 26, 2011 Posted in FLSA, Rule 23, Tip-Pooling

Restaurants, hotels, and others in the hospitality industry recently have been faced with a rash of collective action cases brought under the Fair Labor Standards Act (FLSA) challenging their tip pooling practices. From high-end, trendy restaurants in Manhattan to large, popular chains with multiple locations throughout the country, there has been a significant increase in … Continue Reading