Archives: Uncategorized

Divided Ninth Circuit Reinstates Part of California’s Anti-Arbitration Law

For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and countless Supreme Court cases. While a string of Supreme Court cases over the past decade gave employers some respite, the Ninth Circuit has … Continue Reading

Proposed Rule 23 Amendment for Class Action Settlement: Sea Change or Codification of the Status Quo?

By James Morrison on May 14, 2018 Posted in Uncategorized

We’ve noted several times in this blog the difficulties parties may face when trying to obtain court approval for a settlement they have reached. Recognizing many of these issues, new amendments to Federal Rule of Civil Procedure 23(e) are scheduled to take effect on Dec. 1, 2018. One of the proposed amendments requires that “[t]he … Continue Reading

Sixth Circuit Reverses FLSA Holding on Church Volunteers

By Greg Mersol on April 30, 2018 Posted in Uncategorized

Ernest Angley is an evangelist and purported faith healer who operates a large church in Akron known as Grace Cathedral. It would be difficult to parody him, as his appearance, mannerisms and method of faith healing are already almost over the top. He has his own TV show (and network), and you can find lots … Continue Reading

Seventh Circuit Rejects Attorney Fee Award Premised on Administrative Costs

By Greg Mersol on October 7, 2014 Posted in Uncategorized

As we’ve commented before, class actions frequently take on a life of their own. They involve large sums of money, frequently raise difficult discovery and case management issues, and are subject to surprises for all the litigants. At the same time, recognizing that tensions exist between the class and class counsel regarding attorney fees, courts are … Continue Reading

Bankruptcy Court Dismisses Class Action DFR Complaint Involving Airline Merger

By Greg Mersol on June 12, 2014 Posted in Uncategorized

One deliberately ironic facet of the 2004 film Howard Hughes bio-pic The Aviator (the one with Leonardo DiCaprio) is the fact that the airlines fighting for world dominance in the 1940s were Howard Hughes’ TWA and Juan Trippe’s Pan Am. By the time of the movie, of course, both famous airlines were gone. Pan Am’s … Continue Reading

Ninth Circuit Narrowly Upholds Class Settlement In Misclassification Case

By Greg Mersol on June 5, 2014 Posted in Uncategorized

We’ve commented several times recently on the increasing scrutiny courts are giving to class action settlements generally, and to attorney fee awards in particular. A recent decision from the Ninth Circuit, although it ultimately upholds the award, reflects that this is still a troublesome area and less than entirely predictable for any of the parties. … Continue Reading

Supreme Court Accepts Certiorari In Security Screening Case

By Greg Mersol on March 20, 2014 Posted in Uncategorized

We’ve written at least twice now on class actions arising out of time spent by employees going through security lines, primarily at the end of their shifts. The question is whether and when such time might be compensable under the Portal-to-Portal Act. One of the critical issues is whether the security is being undertaken primarily … Continue Reading

Washington (State) District Court Dismisses Putative ADA Class Action

By Greg Mersol on March 6, 2014 Posted in Uncategorized

As we’ve commented before, disability claims are particularly poor fodder for class actions. Unlike other protected traits, there are often threshold questions as to whether an individual is even in a protected class. Even in those instances where the lead plaintiff is disabled, there may be questions as to which disabilities might be covered – … Continue Reading

Incentive Awards, Bounties, and Adequacy of Representation

By Greg Mersol on February 14, 2014 Posted in Uncategorized

A common feature of class action settlements, whether in employment actions or otherwise, is the payment of an incentive award to the named plaintiff. Such payments are frequently approved by courts, but have been criticized as unduly promoting class claims. Indeed, the 2003 version of CAFA, which passed the House but not the senate, would … Continue Reading

LexisNexis v. Crockett — Sixth Circuit Performs A Gateway Analysis In Class Arbitration Controversy

By John Lewis on November 11, 2013 Posted in Uncategorized

A Sixth Circuit panel has ruled that courts rather than arbitrators should determine whether class arbitration is authorized when the arbitration agreement “says nothing about classwide arbitration.” Citing First Options of Chicago v. Kaplan, 514 U.S. 938, 945 (1995), the Court was clear that an arbitrator can only decide “class arbitrability” “if the parties have … Continue Reading

Class Action Waivers And Arbitration Agreements – Justices Divided On Validity Of Effective Vindication Of Rights Analysis In AMEX Oral Argument

By John Lewis on March 5, 2013 Posted in Uncategorized

Co-Authored By: Ruth E. Hartman Introduction The U.S. Supreme Court heard the much anticipated oral argument in American Express Co. v. Italian Colors Restaurant on February 27, 2013. The issue before the Court was whether an arbitration clause which prohibits class actions should be enforced if the claimant could establish that enforcement of the clause would … Continue Reading

BakerHostetler Releases 2012 Class Action Year-End Review

By Greg Mersol on February 1, 2013 Posted in Uncategorized

While there were no blockbuster cases in 2012 in the league of 2011’s Concepcion and Dukes decisions, it was still an eventful year. The Supreme Court accepted its first case under the Class Action Fairness Act (“CAFA”), lower courts and the NLRB continue to address class action waivers, and many courts have grappled with issues … Continue Reading

Four Words the Fair Credit Reporting Act has Class Action Plaintiffs and Their Lawyers Repeating: “Show Me The Money!”

By Nathan A. Schacht on January 18, 2013 Posted in Uncategorized

Editors’ Note: This post is being jointly published on BakerHostetler’s Class Action Lawsuit Defense blog. Over the past few years, the Fair Credit Reporting Act (“FCRA”), the federal law mandating, among other things, procedures and reporting requirements employers must follow when conducting background checks through a third party vendor, has become a hot-button employment issue, … Continue Reading

Text Versus Intent – Justices Consider CAFA’s Reach

By John Lewis on January 9, 2013 Posted in Uncategorized

Co-authored by Dustin M. Dow A familiar debate involving alternative methods of statutory interpretation erupted again at the Supreme Court on Monday, January 7, 2013. The debate unfolded in The Standard Fire Insurance Company v. Knowles, No. 11-1450, a case that could have a significant impact on the business community that has benefitted from several … Continue Reading

Court Rejects EEOC Class-Wide BFOQ Challenge To Mandatory Retirement Of Pilots

By Greg Mersol on December 31, 2012 Posted in Uncategorized

Mandatory retirement ages have been largely eliminated for most employees, but still continue in a handful of areas. For many years, the Federal Aviation Administration prohibited pilots over the age of 60 from flying for commercial airlines. In 2007, that limit was raised to age 65 for domestic flights. But what about private pilots working … Continue Reading

Second in Time, First in Right? The Third Circuit Reminds Us That The First-Filed Case Doesn’t Always Get to Go First

By Jeffrey Vlasek on November 6, 2012 Posted in Uncategorized

It’s difficult to capture lightning in a bottle, an idiom that is especially true in the world of television production. As we grind into the first full week of November, many of the new series that premiered only a few scant weeks ago have already vanished from the air. (Made in Jersey, anyone?) Indeed, for … Continue Reading

California District Court Rejects 33% Attorney Fee Award in Class Action Wage and Hour Case Under Common Fund Theory; Finds 25% Appropriate

By Greg Mersol on July 17, 2012 Posted in Uncategorized

One of the primary catalysts for class action litigation both in the employment context and outside of it is the availability of attorney’s fees. In many cases, plaintiffs can recover their “reasonable” attorney fees, and predictably fees are frequently a key topic in settlement negotiations. So, what is a “reasonable” attorney fee award? Many courts … Continue Reading

In Re American Express Merchants’ Litigation

By John Lewis on February 6, 2012 Posted in Uncategorized

The Third Time is Not a Charm as the Second Circuit Again Holds Class Action Waivers Unenforceable The Second Circuit considered the validity of class action waivers for the third time in an antitrust action brought against American Express (“AMEX”) based upon the company’s Card Acceptance Agreement. And, despite intervening Supreme Court opinions, for the … Continue Reading

Supreme Court Reverses Ninth Circuit in Dukes v. Wal-Mart

By Greg Mersol on June 20, 2011 Posted in Uncategorized

Today, June 20, 2011, the Supreme Court issued its highly anticipated decision in Wal-Mart Stores Inc v Dukes.pdf Case No. 10-277 (U.S. S. Ct. June 20, 2011). The Court not only reversed the Ninth Circuit, but issued several clear pronouncements regarding the plaintiff’s burdens and the quality of evidence necessary to certify an employment class. … Continue Reading

Supreme Court Holds That Class Action Waivers In Arbitration Agreements Are Enforceable

By Greg Mersol on April 27, 2011 Posted in Uncategorized

The Supreme Court has now held that the Federal Arbitration Act (“FAA”), 9 U.S.C. section 2, preempts state laws that would condition arbitration agreements on the availability of class action arbitration procedures. AT&T Mobility v. Concepcion.pdf, 563 U.S. ____ (April 27, 2011). This new holding overturns prior holdings from California as well as other jurisdictions, and … Continue Reading

Two and a Half Men … And Then Some

By Holli Hartman on March 14, 2011 Posted in Uncategorized

Although you could ascribe a number of interesting characteristics to actor Charlie Sheen these days, “selfish” isn’t one of them, at least if you believe some of his now famous complaint. In the lawsuit the former “Two and a Half Men” sitcom star filed March 10 against the show’s producers and WB Studio Enterprises, Inc., … Continue Reading

CAFA’S Local Controversy Exception and Use of Extra-Pleading Materials

By John Lewis on February 24, 2011 Posted in Uncategorized

Some defense counsel breath a sigh of relief after they manage to remove a class action to federal court but, as the case below illustrates, the battle may be far from won. The Class Action Fairness Act of 2005 (“CAFA”) permits defendants to remove a diversity action from state to federal court when certain criteria … Continue Reading

The Supreme Court Should Accept Certiorari in Dukes v. Wal-Mart

By Greg Mersol on August 27, 2010 Posted in Uncategorized

The Dukes decision crossed several lines by certifying the class at the expense of the employer's defenses. The Supreme Court should accept certiorari and reverse.… Continue Reading