Tag 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

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

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

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

Second Circuit Finds FLSA Collective Actions and State Law Class Actions Compatible

One of the hottest topics in class/collective action litigation this year has been the availability of both an FLSA collective action and a state law class action in the same suit. We’ve already written several times about some of these cases, with a distinct difference in approach and outcome among the various courts. Some courts … Continue Reading

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

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

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

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

Trial Plan Prompts Decertification of FLSA Class

A recent case demonstrates that it is often easier in theory than in practice to contend that a large group of employees are “similarly situated” for purposes of certifying a collective action.  These differences can prove fatal to the class even though the plaintiffs may win impressive early procedural victories.   In Espenscheid v. Directsat … Continue Reading

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

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

The Western District of Texas Shows Some True Grit By Refusing To Grant Conditional Certification

In this day and age, finding a court to deny conditional certification of a proposed FLSA class is sometimes about as difficult as successfully remaking a classic Hollywood western with modern actors and sensibilities.  But, just as the Coen Brothers’ True Grit continues to surprise audiences and critics alike as one of the finest remakes … Continue Reading

Plaintiffs’ Attorney Disqualified in Class Action Due to Representation in Second Suit

Class and collective actions raise myriad ethical issues.  Many of these issues center on class communication issues and determining who is a client. Some relate to settlement tactics.  Others, relating to conflicts of interest, may be so serious that they result in the class not being certified under the Rule 23 requirements of commonality, typicality, adequacy of representation, or predominance. For … Continue Reading

Ninth Circuit District Courts Diverge on Simultaneous Collective and Class Overtime Claims

Courts have long recognized that class actions are not available under the FLSA because it has its own collective action procedure contained in section 16(b) of the Act, 29 U.S.C. section 216(b).  Section 16(b) permits a collective action to proceed if the members of the putative class are “similarly situated.” Among other differences from Rule … Continue Reading

Certification Denied In WARN Act Case

Anyone who practices in the class action arena is aware of the requirements of Rule 23(a) of the Federal Rules of Civil Procedure, which, as a threshold matter, obligate a plaintiff to demonstrate (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. As a practical matter, most challenges to certification focus on commonality … Continue Reading