A key trend in employment-related class actions these days is a surge in lawsuits alleging that employers have violated wage and hour or employee benefits laws by misclassifying employees as independent contractors.  BakerHostetler Partner Todd Lebowitz has authored an excellent white paper on the subject, titled Independent Contractor Misclassification, 2016 Legal Analysis.  The paper details the analytical framework by which a particular worker is properly classified as employee or independent contractor and discusses the potential legal and regulatory implications arising from an employer’s misclassification of workers.  To download the paper, CLICK HERE.



I authored a recent article on developments in data privacy class actions, which was published late last week as part of a year-in-review series on BakerHostetler’s Data Privacy Monitor.  For my article, titled 5 Big Developments in Privacy Class Actions in 2015, and 3 to Look for in 2016 and for other great content on data privacy issues, including class action developments, be sure to check out www.dataprivacymonitor.com.



I’ll be speaking at a data breach and privacy litigation conference on February 11, 2016 at the Julia Morgan Ballroom, 465 California Street, San Francisco.  The program is sponsored by HB Litigation Conferences and features an all-star faculty (present company excluded) of plaintiffs’ and defense litigators, insurers, settlement administrators, coverage lawyers, and other key stakeholders in this exciting and emerging area of the law.  For more information about this can’t-miss program, see the link below.  Hope to see you there!



Thomson Reuters contributor Alison Frankel interviewed me for an article she posted today on the class action cases pending during the current Supreme Court term.  Here is a link to her article.  For those who are not familiar with Frankel’s On the Case Blog, be sure to add it to your regular reading list.  She is one of the best in the business.

I just received my courtesy copy to the latest edition of the Akron Law Review, a symposium issue titled The Class Action After a Decade of Roberts Court Decisions, Volume 48, Issue 4 (2015).  My colleague Dustin Dow and I contributed an article entitled The Practical Approach: How the Roberts Court Has Enhanced Class Action Procedure by Strategically Carving at the Edges.  The contributors to the issue are academics, students, and practitioners from both sides of the bar, including Professor Bernadette Bollas Genetin, Professor Richard Freer, Elizabeth Cabraser, Professor Michael Selmi & Sylvia Tsakos, Andrew Trask, Professor Mark Moller, and Eric Alan Isaacson.  The articles range in perspective from theoretical to historical to practical, with some surveying the Roberts Court’s class action decisions generally, and others focusing on the Roberts Court’s contributions in key areas of the law.

For anyone who follows the Supreme Court’s decisions on class action issues, this is a must-read issue.  Check it out by clicking the link on the symposium title above.

In September, I reported on the Rule 23 Miniconference that I attended in Dallas to discuss the proposed changes being considered by the Rule 23 Subcommittee to the Advisory Committee on Civil Rules.  The Subcommittee recently issued its updated report after incorporating the comments and suggestions received during the Miniconference, and it pared down considerably the changes under consideration.  For an excellent report on the revised report, see Andrew Trask’s post on his blog, Class Action Countermeasures.

The October 2015 United States Supreme Court Term is already well underway, and there are several cases on the docket that could have a significant impact on class action practice.  Here is a summary of the three cases this term that I think could have the biggest impact on class action practice going forward:

Campbell-Ewald Co. v. Gomez, No. 14-857

The Campbell-Ewald case addresses the tactic known as “picking-off” named plaintiffs in class actions, and deals with the question whether an offer of judgment that would provide a named plaintiff complete relief is sufficient to moot the plaintiffs’ claim, even if it is not accepted.  The case follows the Court’s 2013 decision in Genesis Healthcare v. Symczyk, where the majority opinion assumed, without deciding, that an offer of judgment had mooted the named plaintiffs’ claim in an FLSA collective action, based on a finding that the issue had been waived below.

Oral argument in Campbell-Ewald was held in October.  Justices Alito, Scalia, and Chief Justice Roberts all displayed open hostility to the plaintiffs’ position that she should be allowed to litigate the case even after the defendant had offered everything she hoped to achieve for herself in the case.  Despite these views, however, it remains to be seen whether a majority of the court will ultimately hold that any unaccepted offer of settlement is sufficient to actually moot the plaintiffs’ claim under Article III, or whether the decision will fall short of reaching that sweeping question.  Some of the questions posed by likely swing voter, Justice Kennedy, suggest that he agrees with his conservative colleagues that a litigant who has been offered full relief should not be permitted to proceed with the case, but other questions reflected a reluctance to treat an unaccepted offer the same as a judgment.  This suggests that the Court’s ultimate decision could turn on a more technical procedural analysis rather than the broader and more abstract question of whether a controversy can ever exist following an offer of full relief, but of course the questions posed during oral argument do not always signal the Court’s ultimate analysis.

When the Supreme Court originally granted cert in Campbell-Ewald, there appeared to be a split in the circuits on this question, but since then, the circuits have become aligned with the view that an unaccepted offer in a proposed class action does not moot the named plaintiffs’ claims.  A contrary ruling by the Supreme Court would revive a powerful tool that defendants could wield to effectively preempt many types of consumer class actions, especially those seeking statutory damages for small individual amounts.

Spokeo, Inc. v. Robins, No. 13-1339

Spokeo has been hailed as a case with the potential to end “no-injury” class actions.  Ostensibly at issue is whether Congress has the power to enact legislation that gives a private plaintiff the right to seek statutory damages despite the lack of any concrete injury.  A decision could therefore potentially have a significant impact on class actions brought under a variety of federal statutes that provide a private right of action to recover statutory damages upon proof of a violation, one that goes beyond the Fair Credit Reporting Act, the statute at issue in Spokeo.

However, during today’s oral argument, much of the questioning focused on whether the named plaintiff had, in fact, suffered an injury by alleging that false information had been published on his credit report, and the extent to which Congress actually intended to limit the private right of action under the Fair Credit Reporting Act to persons who could show an actual injury.  It seems likely that the outcome of the case will turn on the majority’s view of those two factors.

Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146

Tyson Foods offers the Court an opportunity to further elaborate on the concept of “trial by formula”, discussed in Justice Scalia’s 2011 opinion in Wal-Mart Stores, Inc. v. Dukes, as well as the standards governing expert testimony at the class certification phase, which the Court touched upon but did not  ultimately address directly in both Wal-Mart and again in the 2013 decision in Comcast Corp. v. Behrend.  It also raises the question whether it is ever proper to certify a damages class that includes individual plaintiffs that undisputedly lack any injury or damages.

Specifically, the Court granted certiorari on the following two questions:

I. Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and

II. Whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.

Oral argument in Tyson Foods is set for next Monday, November 10.