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...more
Back in October, we reviewed a number of California cases that, for the most part, denied certification in cases in which certification would have largely been a foregone conclusion only a few years ago. The first few days of...more
Without settlements, class action litigation would likely grind the work of our nation’s courts to a halt. One impediment, however, to settlement in many cases is the amount of attorney fees. Particularly in smaller cases, or...more
In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern: file the case, do minimal discovery, move for conditional certification under...more
Despite blockbuster cases like Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal. 2012), California remains a hotbed of employment class litigation as a...more
While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern. That issue is whether the judge...more
Over the last 5 years, the EEOC has become increasingly aggressive in the bringing and pursuit of broad initiatives and, in particular, class litigation. Cynics can debate whether this springs from a desire to make a...more
This seems to be the month for class action cases presenting unusual issues in combination. Last week we wrote about a class action disparate impact claim of disability discrimination against the obese in which the court...more
Class action lawsuits alleging disability discrimination are uncommon, and those involving disparate impact claims are less common still. This is due, in part, to the fact that unlike other types of discrimination claims, a...more
What is the right compensation for a particular job? That’s the question virtually every employer must face. Pay too little, and the employer may not be able to fill a position or must settle for less than the best...more
One can only imagine the outcome the plaintiffs' attorneys were anticipating: a case against the financial industry, involving non-exempt employees subject to an auto-deduct policy for meal periods, in the Southern District...more
While the now familiar two-step process for determining certification of FLSA collective actions may have been introduced based on valid concerns, it is increasingly vexing for employers in cases where they have either done...more
Differences among putative class members are frequently the heart of the employer’s defense to a class action lawsuit. Such differences implicate the elements of commonality and typicality and possibly even adequacy of...more
Dorothy Gale famously remarked upon finding herself in Oz “Toto, I’ve got a feeling we’re not in Kansas anymore.” Class action wage and hour plaintiffs on the west coast are now awakening to the fact that while they may still...more
7/12/2013
/ American Express ,
American Express v Italian Colors Restaurant ,
Arbitration ,
AT&T Mobility v Concepcion ,
Class Action ,
Collective Actions ,
Collective Bargaining ,
Employer Liability Issues ,
Ernst & Young ,
Fair Labor Standards Act (FLSA) ,
NLRB ,
SCOTUS ,
Wage and Hour
Despite its significant rulings in other areas, we don’t have any blockbuster Supreme Court opinions to discuss this week as it has already decided all of class action before it. Since we don’t have a Dukes, Concepcion,...more
“If at first you don’t succeed, try, try, again,” or so the adage goes. A recent case suggests that may not always be the right strategy or, more apropos to this blog, that off-the-clock cases make poor fodder for class...more
On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but...more
6/1/2013
/ Class Action ,
Commonality ,
Discrimination ,
Disparate Impact ,
Dukes v Wal-Mart ,
Equal Employment Opportunity Commission (EEOC) ,
FRCP 23(b)(2) ,
Hiring & Firing ,
Predominance Requirement ,
Sex Discrimination ,
Summary Judgment ,
Title VII
Just two years ago, a California case declining certification of an action would have been cause for comment. But since then, in 2011 the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541...more
In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female;...more
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.
...more
It is axiomatic that the class action vehicle exists for the benefit of the claimants. An inherent conflict of interest may arise between the class and plaintiffs’ counsel over the issue of attorney fees, and resolution of...more
In some respects, one of the most difficult types of wage and hours lawsuits are so-called “off-the-clock” cases in which the employer has promulgated lawful time-keeping and compensation policies, but the plaintiffs contend...more
We’ve commented before that while most courts apply a fairly lenient standard at the “conditional certification” phase of Fair Labor Standards Act collective action litigation, plaintiffs tend to have a harder time in...more
Despite their work uniforms and company cars, pizza delivery drivers do not have much in common (at least according to the Eighth Circuit).
Recently, in Luiken v. Domino’s Pizza, LLC, No. 12-1216, 2013 WL 399248 (8th...more
We’ve commented several times in the past on the importance of the second phase of the two-step procedure now commonly employed by district courts in Fair Labor Standards Act cases. Under that procedure, courts will...more