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Archive for the ‘Employment Class Actions’ Category

The Wal-Mart v. Dukes argument was held as scheduled today.  Here is a Wal-Mart v. Dukes Oral Argument Transcript.  Some initial observations:

  • The beginning of the defendant’s argument was focused on the proper standard for reviewing whether the plaintiff had sufficiently common evidence of a uniform policy.
  • It was not until later in the defendant’s argument that the questioning turned to the question certified for review: whether a Rule 23(b)(2) class action should be certified in a class action seeking monetary relief in the form of back pay.  Questioning on this issue continued into the plaintiff’s argument, but then returned to questions of what standard should apply more generally in certifying an employment discrimination class action.
  • On balance, the tougher questioning of the defendant’s attorney was from the more liberal faction of the court, and the tougher question of the plaintiff’s attorney was from the more conservative faction of the court. 
  • However, to the extent the questions can be a sign of a potential split in the Court (always a dangerous assumption), it is interesting that Justice Ginsburg seemed particularly troubled by the plaintiff’s position on the applicability of Rule 23(b)(2) to the back pay claims.
  • Overall, the sentiment seemed to be against allowing Rule 23(b)(2) to be used as a vehicle to resolve individual back pay claims (again, recognizing that the nature and tone of oral argument questions is not a very reliable way to predict outcomes).  However, there seemed to be some support among several Justices for the possibility that a case could be certified under Rule 23(b)(2) for injunctive relief only, on the ground that hiring policies are discriminatory because they are excessively subjective.

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The United States Supreme Court will hold oral argument next Tuesday, March 29, 2011, in case of Wal-mart v. Dukes, No. 10-277.  The issue for review, at least so far, according to order granting certiorari, is:

Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what circumstances.

Hopefully, questions posed by the justices during the argument will also provide insight into what the Court meant in its somewhat vague directive that the parties brief the issue “Whether the Class Certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”

Another thing I’ll be looking out for is whether the questions appear to limit the analysis to the employment discrimination context, or whether they portend a more general analysis of Rule 23 that could impact class actions in other subject matter areas.

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Can plaintiffs seek back-damages using a class action vehicle that’s built for righting wrongs in equity through remedies like injunction?  In the biggest work place class action ever, the United States Supreme Court has granted cert on the question of whether plaintiffs can use the Rule 23(b)(2) injunctive class procedure as a vehicle to seek money damages.  Why does it matter?  Because injunctive classes are much easier to certify than damages classes.  Usually, when plaintiffs seek damages as their primary remedy they pursue class certification through Rule 23(b)(3), the money damages class, which has significantly more burdensome procedural requirements to achieve class certification than its injunctive counterpart.  The high court should have an answer by June of 2011.

For an accessible preview check out Lyle Denniston’s article at Scotus Blog.  Read the 9th Circuit opinion here.  Check out other comments by Supreme Court watchers:  David G. Savage has an article in the L.A. Times; Jess Bravin and Ann Zimmerman have this piece in the Wall Street Journal; Adam Liptak and Steven Greenhouse file this report in the New York Times.

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It’s back!  We can’t promise that it will appear weekly, so we changed the name to Class Action Blogosphere “Periodic” Review.  But, as always, we have combed through our favorite blogs and news feeds to bring our readers up to speed on a some of the notable developments in class action news.

The End of Consumer Class Actions as We Know Them?

One story is, by far, the biggest news in the class action world.  Today, the U.S. Supreme Court will hear argument in the case of AT&T Mobility Services v. Concepcion.  The key issue is whether class action exemptions in consumer contracts are enforceable even when state contract law bars such exemptions.  AT&T argues that the Federal Arbitration Act preempts state contract law.  Thus, if a class action exemption is tied to an arbitration clause it is enforceable despite contrary law at the state level.  For an accessible read, check out Brian T. Fitzpatrick’s story in the San Francisco Chronicle…

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/11/06/INA41G6I3I.DTL

… and see also

All Writs Act Better than Collateral Estoppel

Class action defense lawyers may have a new tool to use against copycat class actions; particularly those involving plaintiffs’ lawyers who attempt to extort settlements through threat of discovery.  It’s called the All Writs Act.  It was used by Judge Posner in the Seventh Circuit to grant an injunction blocking a copycat class action in another jurisdiction.  The case is called Thorogood v. Sears, Roebuck & Co.  For more information check out Andrew Trask’s November 10 post on Class Action Countermeasures.  Judge Posner even cites Trask’s new book, The Class Action Playbook.  (See CAB Review of the book here).

http://www.classactioncountermeasures.com/2010/11/articles/discovery/using-the-all-writs-act-to-block-copycat-class-actions/

For a slightly different take on Posner’s decision, read Russell Jackson’s post on Consumer Class Actions & Mass Torts.

http://www.consumerclassactionsmasstorts.com/2010/11/articles/predominance-1/7th-circuit-enjoins-relitigation-of-denial-of-class-certification/

Motion to Dismiss + Discovery = Motion Granted?

The Rule 12(b)(6) Motion to Dismiss can sometimes feel like a mini-motion for summary judgment.  Over the years, courts have been more willing to consider information beyond merely the pleadings including documents that are referenced by plaintiffs and central to their claims.  Anything more is supposed to convert the motion to dismiss into a motion for summary judgment, right?  Maybe not.  One court has apparently permitted discovery in the context of a Rule 12 Motion to dismiss.  Get the story in a post titled Preemption, Pleading & Rule 11 at Drug and Device Law.

http://druganddevicelaw.blogspot.com/2010/11/preemption-pleading-rule-11.html

Big Changes Coming for Rule 26 and Expert Witnesses

The communications between attorneys and their expert witnesses are currently discoverable in federal court. Not for long.  Federal Rule 26 is about to change in a way that will protect certain communications between counsel and expert.  The rule change will also extend work product protection to the draft reports of experts.  Check out the latest post in the North Carolina Business Litigation Report.

http://www.ncbusinesslitigationreport.com/2010/11/articles/discovery-1/work-product-protection-for-communications-between-lawyers-and-expert-witnesses-coming-next-month-under-revised-federal-rules-of-civil-procedure/

Hooters Waitresses Have no Class … Action?

Always read the fine print.  According to the Washington Post, whatever the Supreme Court decides in AT&T Mobility Services vs. Concepcion may have ramifications for a class of waitresses trying to sue Hooters.  You see, the job application has an arbitration clause that bars lawsuits.

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/05/AR2010110507318.html?hpid=moreheadlines

Oppress Me, Please

Professor James C. Morton reports on a Canadian decision allowing class certification of a case seeking the remedy of “oppression” in his blog, Morton’s Musings.  Doesn’t sound like a very pleasant  remedy to us, but they march to the beat of their own drummer north of the border.

http://jmortonmusings.blogspot.com/2010/11/oppression-remedy-properly-sought-in.html

You Mean to Tell Me that Fast Food Makes you Fat!?

Sean P. Wajert of Mass Tort Defense reports on a recent decision denying class certification to a plaintiff seeking to hold a fast food chain responsible for allegedly misleading consumers into thinking that its fare poses no health risks.

http://www.masstortdefense.com/2010/11/articles/class-action-alleging-false-food-ads-rejected/

Securities Class Action Filings Down

As reported in the Conference Board’s Governance Center Blog by guest contributor Anthony Galban, Sr. V.P. of Chubb & Son, securities class action filings are down significantly in 2010.

http://tcbblogs.org/governance/2010/11/04/guest-contributor-securities-class-action-filings-are-down-but-will-the-trend-continue/

Hot Pockets are Fast and Tasty

Greg Mersol of Baker Hostetler’s new Employment Class Action Blog reports on the latest in a series of California decisions denying class certification in a wage and hour case seeking to hold an employer liable for not ensuring that its employees to take meal breaks.

http://www.employmentclassactionreport.com/class-action/another-court-denies-certification-of-a-california-meal-break-class/

Describe that Class for Me Again?

The Complex Litigator‘s H. Scott Leviant reviews a recent California Court of Appeal decision holding that class certification was not appropriate because the proposed class was not ascertainable.

http://www.thecomplexlitigator.com/post-data/2010/11/1/in-sevidal-v-target-corporation-an-unascertainable-class-doo.html

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With the help of Kevin O’Keefe’s LexBlog, Baker Hostetler’s employment group has come blazing into the world of 21st century social media with its new law blog, aptly named Employment Class Action Blog.

The quality entries submitted so far include case summaries, practice tips, legislative updates, and analysis covering a variety of employment class action-related topics.   If you want to keep abreast of developments in the unique area of employment class action law, I would recommend bookmarking http://www.employmentclassactionreport.com/

I have added a link to the Baker Hostetler Links list to the right of this page.

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Karen Sloan authored this January 21 article in The National Law Journal (available at Law.com) summarizing a recent report by Chicago employment defense firm Seyfarth Shaw summarizing trends in employment-related class and collective actions in 2008. 

The NLJ article’s summary offers the not-so-surprising conclusion that the poor economy is helping to fuel a surge in class and collective actions filed under both state and federal labor and anti-discrimination laws as well as ERISA. 

The report, which is available only upon request to the firm’s clients and other employers, is apparently 655 pages long and analyzes 650 decisions.  A preview of the report is available at the firm’s website, along with a link to an introductory section of the report.   The introduction offers a summary of trends, including the insight that workplace class actions are becoming increasingly more complex, as claims under multiple state and federal employment and labor laws with differing procedural requirements are being combined in the same case.

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Employers facing potential layoffs might find interesting a recent article in Workforce.com about the risk of potential class actions as a result of reductions in force.  The article addresses the EEOC’s stated strategy to increase class action filings against employers and provides tips on measures that can be taken to minimize class action exposure.

http://www.workforce.com/section/09/feature/25/45/73/254577.html

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