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At Long Last, California District Court Permanently Enjoins Enforcement of AB 51

There are times when one would rather not be proven right. Nearly four years ago, a California district court invalidated AB 51, which sought to prohibit mandatory arbitration by, among other things, calling for criminal...more

10th Circuit Reverses Class Certification in Claimed Off-the-Clock Case

Court also holds that arbitrability questions must be resolved by the arbitrator - The 10th Circuit has decided two significant issues in an otherwise garden-variety off-the-clock case, one relating to arbitration and the...more

Supreme Court Holds That a Case Should Be Stayed Automatically When a Party Appeals a Decision Not To Arbitrate It

While several recent Supreme Court decisions have garnered significant headlines, the Court’s late June ruling in Coinbase, Inc. v. Bielski, (Case No. 22-15), likely flew under the radar for the national media outlets. For...more

Supreme Court Adopts Strict Construction of Salaried Test, Even for Highly Paid Exempt Employees

One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply...more

Illinois District Court Refuses to Certify Class Based on Anti-harassment Policy

Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense...more

Third Circuit Reverses Certification of ADA Accommodations Class Based on Retail Store Access

Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the...more

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate - But Does Little Else

In a much-anticipated opinion, the Supreme Court unanimously held that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding...more

Third Circuit Rejects District Court’s Trial-Before-Certification Plan

Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same...more

Divided Ninth Circuit Reinstates Part of California’s Anti-Arbitration Law

For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and...more

Spending Bill Would Place Class Action Waivers in Jeopardy

Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612...more

Court Refuses to Certify Class for Allegedly Defective Flight Attendant Uniforms – Claims About Uniforms Not Themselves Uniform

The United States District Court for the Western District of Wisconsin has refused to grant certification in a two-year-old dispute over uniforms for airline personnel. In Gilbert v. Lands’ End, Inc., Case No. 19-cv-823-jdp...more

Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds

Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the...more

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit?...more

Ohio District Court Rejects Multiple Challenges to Electronically Signed Arbitration Agreement

Following the United States Supreme Court’s decision three years ago in Epic Systems Corp. v. Lewis, courts have increasingly enforced arbitration agreements with class action waivers. We blogged about the Epic Systems...more

Ninth Circuit Holds That District Court Must Weigh Evidence to Determine Rule 23(b) Predominance

While statistical evidence has long been held to be probative on the issue of potential discrimination, it can also be tricky. Questions often abound regarding the collection of data used for statistical comparisons, the...more

Seventh Circuit Decertifies Sexual Harassment Class That Relied on Novel Theory

Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are...more

Florida Court Denies Conditional Certification in Tip Credit Case

Court also rejects ‘fail-safe class’ allegations - The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims...more

Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement

As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may...more

The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions in Favor of a One-Step...

On Jan. 12, 2021, the Fifth Circuit Court of Appeals significantly altered the process for certification of collective actions in wage and hour cases under the Fair Labor Standards Act (“FLSA”). In Swales v. KLLM Transport...more

Eleventh Circuit Upholds Small Fee Award in FLSA Case

When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment...more

North Carolina Court Rejects Collective Action Based on Regular Rate Issues

In some instances, it’s hard to see what benefit there is to a class action other than for the lawyers. This is particularly true in so-called “regular rate” cases challenging employer perks such as free meals, various kinds...more

Eleventh Circuit Invalidates Class Action Individual Incentive Awards

Yes, you read that right. Class action litigation is fueled largely by the availability of often large attorney fee awards. ...more

DOL Issues New Guidance on Several FFCRA Issues

Introduction - The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave...more

Missouri District Court Rules on Employment Class Action Procedural Quagmire

Res judicata helps cut the Gordian knot - Rule 23 and FLSA Section 16(b) can provide myriad benefits to the plaintiffs in class actions, but in some instances the attorneys may resort to procedural runarounds to try to...more

Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case

Tip credit issues are inherently difficult. Section 3(m) of the Fair Labor Standards Act permits an employer to count tips toward a portion of a tipped employee’s wages to meet the minimum wage (and in some instances...more

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