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Posts Tagged ‘employment class action’

I’m pleased to announce that the BakerHostetler Class Action Defense Team has just released its 2012 Year-end Review of Class Actions, a joint project with the firm’s Employment Class Actions, Antitrust, and Data Privacy practice teams.  See below for a synopsis of the project.  Click the link above to access a copy of the report itself:

We are pleased to share with you the BakerHostetler 2012 Year-end Review of Class Actions, which offers a summary of some of the key developments in class action litigation during the past year. Class action litigation continues to persist in all areas of civil litigation despite the Supreme Court’s 2011 decisions in AT&T Mobility v. Concepcion and in Wal-Mart Stores, Inc. v. Dukes, which were seen by many commentators as marking the beginning of the end of class actions as we know them. But while the Supreme Court’s 2011 decisions have had a significant impact on class action litigation, they have not brought about its demise and are not likely to do so anytime soon. In the last two years, we’ve seen landmark decisions and the addition of important judicial gloss to those decisions. 2013 will be no different as the Supreme Court is set to weigh in on a series of key cases this spring.

We hope you find this Review a useful tool as you move forward into the new year. This comprehensive analysis of last year’s developments in class action procedure and jurisdiction, as well as developments by subject matter will hopefully provide context and insight as you look ahead to 2013’s expected trends in class action law, including the proliferation of privacy class action litigation and class action litigation relating to the LIBOR rate-fixing scandal.

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According to Pete Kasperowicz at The Hill’s Floor Action Blog, Senator Al Franken (D-Minn.) and Representative Rosa DeLauro (D-Conn.) have introduced legislation in Congress intended to reverse limitations on employment discrimination class actions recognized in the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukes

A fact sheet available on Senator Franken’s official website describes the key provisions of the bill as follows:

The Equal Employment Opportunity Restoration Act will restore workers’ ability to challenge discriminatory employment practices on a class-wide basis. It adds to Title 28 of the U.S. Code a new section 4201, which does the following:

  • Section 4201(a) creates a new judicial procedure – called “group actions” – that workers can use when bringing employment discrimination cases. The requirements for establishing a group action are the same as the pre-Dukes requirements for maintaining a class action under Rule 23 of the Federal Rules of Civil Procedure—namely, clarifying that the merits of the case need not be proven to certify the group action.
  • Section 4201(b) provides that group actions can be used regardless of whether the group is challenging an objective employment practice, a subjective employment practice, or a mixed employment practice (such as the use of a written test to qualify for an interview).  It also provides that employers’ written anti-discrimination policies can be considered as a defense to certification only insofar as the employer demonstrates that the policy actually has been implemented in practice.
  • Section 4201(c) says that the group actions authorized by this section are subject to the same procedural requirements as class actions authorized by Rule 23. These include notice and opt-out requirements. This section also preserves the application of the Class Action Fairness Act and the availability of appeals.
  • Section 4201(d) says that courts can use statistical analyses and any other procedures they deem necessary to provide justice to prevailing plaintiffs.

It does not appear from Senator Franken’s fact sheet that the bill has significant bipartisan support, and having just been introduced, there is no telling how far it will go towards becoming law in its present form.  However, we’ll keep an eye on any future developments here at CAB.

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From time to time we will troll the class action blogosphere for news and information about our favorite class action topics.  Here are just a few of the recent headlines from around the web.

Complex litigation as a commodity investment? 

Hedge funds have traditionally been willing to explore new territory in the non-traditional investment sphere.  At least some appear to be finding potentially attractive opportunities in so-called Litigation Funding Companies.  LFC’s are often run by former lawyers–some with an investment or hedge fund background.  They identify potentially profitable lawsuits and agree to fund the litigation (to a point) in exchange for a percentage of the settlement.  Three Geeks and a Law Blog has an interesting multi-part series on this new trend.  Read it here.

http://www.geeklawblog.com/2012/03/rise-of-third-party-litigation-funding.html

10 ways to defend class actions using Walmart v. Dukes

Andrew Trask, class action attorney at McGuire Woods and co-author of the Class Action Playbook recently put together a list of takeaways explaining how class action defense attorneys can use Wal-mart v. Dukes.  His post links to a power point presentation he recently gave at DePaul University.  It’s a quick read and worth checking out.

http://www.classactioncountermeasures.com/uploads/file/DePaul%20-%20Defense.pdf

BP Settlement

The BP litigation in the Deepwater Horizon Oil Spill off the Gulf Coast has settled for all claimants except the federal government.  The Mass Tort Litigation Blog has been providing regular updates including this post discussing what’s known about the settlement.  It appears the settlement will consist of two separate agreements. One will resolve economic claims while the other will resolve medical claims.  The Blog cites news reports explaining that “either the settlement will be paid by the $20 billion fund BP created to compensate victims or the fund will close and be replaced by a court overseen claims facility.”

http://lawprofessors.typepad.com/mass_tort_litigation/

Irregular transaction was not enough to show a Bank had actual knowledge of an alleged Ponzi scheme.

Race to the Bottom contributor Susan Beblavi unpacks the Eleventh Circuit’s semi-recent opinion in Lawrence v. Bank of America, D.C. Docket No. 8:09-cv-02162-VMC-TGW, 2012 LEXIS 777 (11th Cir. Jan. 11, 2012).  In that case, putative class action plaintiffs alleged the Bank of America substantially assisted in a Ponzi scheme operated by one of its account holders.  The Eleventh Circuit upheld the District court’s dismissal of the case reasoning that even though BOA authorized numerous large transactions by the account holder, the bank wasn’t required to investigate them under Florida law.  Moreover, the court found the purported red flags were too weak to infer that it was plausible that the bank had actual knowledge of the alleged scheme.  Read more at the link below.

http://www.theracetothebottom.org/home/2012/3/8/lawrence-v-bank-of-america-allegations-of-actual-knowledge-o.html

Parens Patriae actions, class actions?

The 9th Circuit holds that parens patriae actions under Nevada law are not class actions removable to federal court under CAFA, adding to a circuit split on the issue.  For a succinct explanation, see Katherine Heckert’s post at the Carlton Fields Class Action Blog:

http://www.carltonfields.com/classactionblog/blog.aspx?entry=521

Walmart v. Dukes reasoning reverses class certification again

Skaddon’s Russell Jackson posts that the Louisiana Supreme Court has again reversed class certification due to problems of commonality and causation.  Previously, the Louisiana high court adopted the U.S. Supreme Court’s common question analysis in Walmart v. Dukes to reverse class certification in Price v. Martin.  In a recent per curiam opinion in Alexander v. Norfolk So. Corp., No. 11-C-2793, Slip op. (La. Mar. 9, 2012), the Louisiana Supreme Court cited Price for the proposition that class certification requires a rigorous analysis and significant proof of a common question. The case involved a chemical spill involving train cars. Hundreds complained of a bad smell and irritation to their eyes, throat and nose.  This led to a class action that was certified by the trial court and affirmed by an appellate court.  It turned out, each putative class member would need individual toxicology testing to determine whether they are among the minority of people who are susceptible to very low levels of the released chemical.  The Louisiana Supreme Court ultimately reversed class certification based on the lack of predominance of common issues, and the need for individualized trials.  Read more here.

http://www.consumerclassactionsmasstorts.com/2012/03/articles/predominance-1/once-again-the-louisiana-supremes-reverse-class-certification-citing-causation-as-a-problem/

The Perils of Electronically Stored Information

Todd Dawson’s post on Baker Hostetler’s Employment Class Action Blog illustrates just how badly things can go when a key “smoking Howitzer” document slips through defense counsel’s ESI review and ends up in the plaintiffs’ hands.  In an FLSA Collective Action, the employer produced two million documents. Prior to the production, the employer’s attorneys used various search terms to identify privileged documents.  Inevitably, one got through – a bad one. Even worse, the court concluded that the employer had waived privilege.  Thus, not only did the plaintiffs’ counsel get to see the document, they got to use it as well.  To see how this disaster could have been avoided, read more here.

http://www.employmentclassactionreport.com/flsa/inadvertent-esi-disclosure-of-attorney-client-communication-waives-privilege-in-flsa-collective-acti/

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For those readers who are interested in additional insights on Judge Posner’s opinion in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11-3639 (7th Cir., Feb. 24, 2012), which was the subject of Wednesday’s CAB post, here’s a link to an insightful executive alert on the decision, which was authored by colleagues in Baker Hostler’s New York office, partner Deborah Renner and associate Matthew Moody.

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The Baker Hostetler Employment Class Action Blog is constantly putting out quality content, but they have two new recent posts that I would especially recommend to my readers.  They include:

  • This February 6 post from John Lewis discussing the impacts, both on employment cases and otherwise, of the Second Circuit’s recent Amex III decision.
  • This February 6 Post from Greg Mersol discussing a recent federal court decision holding that the pleading standards articulated in Iqbal and Twombly do not apply to affirmative defenses in class actions.
  • This January 20 post from John Lewis discussing the U.S. Supreme Court’s most recent pro-arbitration opinion in CompuCredit Corp v. Greenwood.

Even if you aren’t an employment lawyer, I would strongly suggest adding www.employmentclassactionreport.com to your list of favorites!

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It’s not too late to sign up for tomorrow’s Strafford Publications Webinar Class Certification After Dukes, Bayer and Halliburton Rulings.   As a preview, here is a copy of the written materials for my portion of the presentation, Opposing Class Certification After Dukes, Bayer and Halliburton.  I hope you can make it.

 

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Along with leading Colorado Employment attorney Todd J. McNamara, I’ll be presenting at a breakfast seminar at the CBA-CLE next Tuesday with the (hopefully) self-explanatory title: Wal-Mart v. Dukes: Reshaping Class Certification.   The particulars follow below.  Hope to see you there!

When:

July 12, 2011 8:30 AM – 9:30 AM

Where:

CLECI Large Classroom
1900 Grant Street, Suite 300
Denver CO 80203
(303) 860-0608

Credits:

General credits: 1.00

Prices

CBA Member $59.00
CBA Labor & Employment Section Member $29.00
CBA Litigation Section Member $29.00
Non Member $69.00
 
July 2011
 
Wal-Mart v. Dukes: Reshaping Class CertificationLIVE IN DENVER
 
 
Program Description:
 
When it issued its decision in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court did much more than simply end one of the largest class action suits in American history. It also set a host of new ground rules for federal courts to evaluate class certification, both in employment discrimination cases and in other types of class actions. This program will discuss the significant potential impacts of this landmark decision on a host of issues, including 1) evaluation of merits issues at the class certification stage; 2) the potentially broadened scope of the commonality element of FRCP 23(a); 3) the standards for evaluating expert testimony at the class certification stage; 4) the threshold standard needed to establish “common proof” of an employment or other business practice; 5) the use of statistical evidence in support of class certification; and 6) the standards for adjudicating claims for monetary relief under FRCP 23(b)(2). The program will examine what the Court had to say about these and other topics, and it will also explore the questions that remain unanswered following the decision.
 
Presented by Paul G. Karlsgodt, Esq. and Todd J. McNamara, Esq.
 
Agenda:
8:00 am – 8:30 am Registration
8:30 am – 9:30 am Program (Continental Breakfast Provided)
 
 
Faculty:
 
Paul G. Karlsgodt, Esq.
Baker Hostetler
 
Paul Karlsgodt is a litigation partner whose practice emphasizes class action defense and other complex commercial litigation. Mr. Karlsgodt has represented insurance companies and other FORTUNE 500 companies in numerous nationwide and statewide consumer class action lawsuits and related litigation. He has represented clients in class action lawsuits involving sales and marketing practices, insurance coverage, claims adjustment practices, corporate securities, retailer/dealer disputes, employment and taxation.
 
Mr. Karlsgodt is editor and primary contributor to the legal blog, http://www.ClassActionBlawg.com, which covers a variety of class action-related issues, including decisions, trends, best practices, news and reform, both in the U.S. and throughout the world. He also founded and served as the first Chair of the Class Actions, Derivative Suits and Mass Torts Subsection of the Litigation Section of the Colorado Bar Association. He remains an active member of the Subsection.
 
 
Todd J. McNamara, Esq.
McNamara Roseman & Kazmierski LLP
 
 
Todd McNamara opened his own firm in 1995 and limits his practice exclusively to employment law matters. Mr. McNamara was lead private class counsel in Wilkerson, et al., v. Martin-Marietta, the largest age discrimination claim brought within the State of Colorado, which settled for a reported $7.6 million. Mr. McNamara secured the first race discrimination verdict in the United States against a real estate franchise for failure to award a sales agency to an African-American in Tyler v. ReMax. Most recently, Mr. McNamara, together with class cocounsel, settled a $3.85 million disability discrimination case against the United States Postal Services.
 
Todd has previously served as co-chair of the Colorado Bar Association Labor Law Committee, and is a member of the National Employment Lawyers Association. He serves as an arbitrator and mediator for the American Arbitration Association Employment Panel. He is co-editor of FederalEmployment Jury Instructions and has just recently completed a seventh supplement to that publication, which is used throughout the United States by both lawyers and judges. He is a co-chapter editor with the Practitioners Guide to Colorado Employment Law and has published a number of other articles on employment law issues in both Trial Talk and The Colorado Lawyer. Todd is a Fellow of The College of Labor and Employment Lawyers, one of approximately only 20 in Colorado.

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