Tag Archives: Rule 23

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

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

Third Circuit Finds Multiple Problems With Certification of Off-the-Clock Claims

By Greg Mersol on January 8, 2020 Posted in Off-the-clock

A recent case from the Third Circuit casts a spotlight on many of the problems inherent in so-called off-the-clock claims for overtime. In Ferreras v. American Airlines, Case No. 18-3143 (3d Cir. Dec. 24, 2019), the plaintiffs claimed that various employer time-keeping policies resulted in employees not being paid for all hours worked. One was … Continue Reading

Texas District Court Refuses to Certify Class of Nurses in Wage Antitrust Case

By Greg Mersol on January 24, 2019 Posted in Class Action Litigation, Wage and Hour

Expert’s Report Didn’t Adequately Explain Causation While antitrust cases are often good candidates for class action treatment, it is still important for the plaintiffs to demonstrate a connection between the alleged anti-competitive conduct and the alleged harm, as a recent case from the Western District of Texas found. In Maderazo v. VHS San Antonio Partners, … 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

Supreme Court Limits Review of Certification Denials

By Greg Mersol on June 14, 2017 Posted in Class Certification

One of the difficulties of class action litigation that continues to vex employers is the frequent inability to obtain meaningful review of certification decisions. Because, the reasoning goes, certification orders are interlocutory in nature, there is no right of immediate review. While since 1998 there has been the potential for review of orders granting or … 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

Third Circuit Rejects Procedural Runarounds to Appeal Decertification of FLSA Collective Action

By Greg Mersol on December 27, 2016 Posted in FLSA

What’s good for the goose … We’ve written many times in this blog about the two-step procedure used by many courts in Fair Labor Standards Act (FLSA) cases in collective actions. The first step is to provide notice to the proposed class and is typically decided under a lenient standard. If the court “conditionally certifies” … 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

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

Ninth Circuit “Chases” Away Another Option for Removing PAGA Actions to Federal Court

By Greg Mersol on March 17, 2014 Posted in Class Action Fairness Act, PAGA, Wage and Hour

Authored By: Jeffrey Bils In yet another setback for employers seeking to remove California wage and hour cases to federal court, the Ninth Circuit held that the federal Class Action Fairness Act (“CAFA”) provides federal courts with no basis to assert jurisdiction over suits filed under the California Labor Code Private Attorneys General Act (“PAGA”) … 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

Ninth Circuit Finds Rule 23 Class Actions and FLSA Collective Actions Compatible

By Greg Mersol on April 18, 2013 Posted in FLSA, Retail

As we’ve noted before, circuit court authority on collective action issues is relatively sparse. Although we like to comment on such cases, the most recent such opinion is in many respects a nonevent. Several lower courts have refused to combine state law Rule 23 class actions and federal FLSA collective actions in the same case, … 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