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Posts Tagged ‘employment class action’

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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I’m late for my Inns of Court dinner, so time does not permit me to elaborate in detail, but I wanted to point out two recent class action-related reports of note.  Be sure to check them out.

1) Seyfarth Shaw’s Seventh Annual Workplace Class Action Litigation Report.

2) Cornerstone Research, Securities Class Action Filings, 2010 Year in Review.

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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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I’m excited to announce that the Colorado Bar Association Class Actions subsection is teaming up with the Labor & Employment Law Section to bring you CLE luncheon entitled: A Primer on Employment “Class Action” Litigation: Class Actions, Collective Actions, and EEOC Enforcement.  If you are interested in attending, please send me an email at pkarlsgodt@bakerlaw.com.
 
Date and Time: November 22, 2010 at 12:00 noon
Location: Holland & Hart LLP, 555 17th St, Ste 3200, Denver, CO 80202 
 
Summary:
 
Employment and labor law is one of the hottest areas of class action litigation these days.  But the term “employment class action” is often used to describe cases involving a variety of procedures, of which the Rule 23 is only one.  This program will explore the different mechanisms that may used to resolve mass employment litigation and the differences and interplay between class actions, collective actions, and EEOC enforcement actions.
 
Faculty:
 
Steven Moore is the Managing Shareholder of the Denver office of Ogletree Deakins, one of the nation’s leading labor and employment law firms.  Mr. Moore will discuss the interplay between Rule 23 class actions in employment cases and other collective action procedures, such as the opt-in procedure applicable to cases under the Fair Labor Standards Act (FLSA).
 
Stephanie Struble is a Trial Attorney with the Equal Opportunity Employment Commission (EEOC) in Denver.  Ms. Struble will discuss the role of the EEOC and private litigants in cases involving an alleged pattern or practice of employment discrimination.

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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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One more abbreviated post before I return from vacation.  Neil Rose of the British publication the Law Society Gazette reports that the paper has obtained unpublished government research calling for an opt-out collective action procedure for dealing with a backlog of equal pay, discrimination, and other employment claim against government agencies in the UK.  Here’s a link:

http://www.lawgazette.co.uk/news/class-actions-employment-tribunals-called-government-research

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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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Baker Hostetler’s Employment and Labor Group issued an Executive Alert today on the Ninth Circuit Court of Appeals’ wage and hour decision in Sullivan et al. v. Oracle Corporation, (case no. 06-56649), where the court found that California state overtime rules apply to non-residents who perform work in California.  The group has this to say about the potential impacts of the decision on employers:

  • If an employee performs work in California, the overtime provisions of the California Labor Code apply to that employee, regardless of the employee’s state of domicile.
  • In light of this holding, it is likely that a non-resident employee who works in California is also subject to the California Labor Code regarding meal periods, rest periods, leave, termination, vacation pay and all other employment matters.

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Canadian attorney Howard Levitt has an interesting article published today on FinancialPost.com about trends in Canadian employment class action law.  The article offers some practical preventative tips for employers, but also makes a few keen observations about the dynamics surrounding a recent increase in employment class actions in Canada, including this gem: 

It’s a new phenomenon: Roving groups of lawyers searching for corporate conduct deleteriously affecting large groups of employees quickly move to find one employee willing to start a class action on behalf of all.

Many of these lawyers have little or no expertise in employment law.

Levitt’s description conjures images of Canada as the wild frontier of employment class action law.  Certainly, there are many examples of young lawyers who have hit it big in class action lawsuits in the U.S.   But the inexperienced class action lawyers roaming the country in search of class actions like 49ers speculating for gold have long since settled down to cultivate the fertile class action ground south of the border. 

The roving bands have settled into established firms and consortiums of trial lawyers with the expertise, resources, and influence to edge out even the most enterprising of young lawyers.  This often occurs behind the scenes through a process called “private ordering,” politely described in the Federal Judicial Center’s class action Pocket Guide for judges as when counsel competing for the role of lead counsel in a case agree amongst themselves to divide up responsibilities and fees.  Sometimes, however, the struggle becomes more public, as it did when several different groups of firms competed for the role of lead counsel in this recent case.  “Auctioning,” or competitive bidding for the role of class counsel, has also been used in some cases.

So, if you’re a young enterprising class action lawyer in the U.S., you may have to pay your dues a bit before you earn your first private jet.  And for those would-be prospectors thinking about heading north to stake your claims, in addition to a quality gold pan and a sturdy mule, you’ll need to submit an application to the National Committee on Accreditation.

For some online articles discussing the phenomenon of “entrepreneurial litigation” try these links:

http://www.austlii.edu.au/au/journals/MULR/2006/14.html#Heading131

http://www.rand.org/pubs/monograph_reports/MR969/MR969.ch10.pdf

http://www.law.harvard.edu/programs/olin_center/corporate_governance/papers/04.Halfteck.class-action.pdf

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