Tag Archives: Class certification

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

By Todd Lebowitz and Matthew Goodman on July 8, 2022 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

By Joseph S. Persoff and Vartan Madoyan on May 12, 2021 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

By Greg Mersol on March 17, 2021 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

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

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

By Greg Mersol on August 27, 2020 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

By Todd Dawson on August 26, 2020 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

By Greg Mersol on March 4, 2020 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

By Greg Mersol on January 23, 2020 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

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

California Supreme Court Tells Employers to Sit a Spell While Courts Review Individual Factors for Suitable Seating

By Jeffrey Vlasek on April 27, 2016 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

By Greg Mersol on April 5, 2016 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

By John Lewis on December 15, 2015 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

By John Lewis on December 11, 2015 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

California Supreme Court Eases Path Toward Class Certification of Independent Contractor Misclassification Claims

By Todd Lebowitz on July 1, 2014 Posted in Class Certification, Independent Contractors

Managing independent contractor relationships requires a delicate balance, perhaps best described (unknowingly, of course) by the band .38 Special in the song “Hold On Loosely”: Just hold on loosely But don’t let go If you cling too tightly You’re gonna lose control Maintaining too much control causes the loss of control. And so it goes … 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 Courts Deny Certification In Wage and Hour Cases Based On Claim That Employer “Should Have Known” Of Unpaid Time

By Greg Mersol on January 10, 2014 Posted in Class Certification, Wage and Hour

Back in October, we reviewed a number of California cases that, for the most part, denied certification in cases in which certification would have largely been a foregone conclusion only a few years ago. The first few days of 2014 have been quiet on the class action front so far, so let’s review a few … Continue Reading