The Daily Journal reported last week that new standards established by the Ninth Circuit in the 2013 case Rodriguez v. AT&T Mobility Services LLC have resulted in fewer wage and hour class action cases being remanded to state court.

Previously, under Lowdermilk v. United States Bank National Association, employer defendants were required to prove with “legal certainty” that there was at least $5 million at stake before the case could qualify for federal jurisdiction under the Class Action Fairness Act.  In Rodriguez the court reduced the standard to a simple preponderance of evidence.

As the Daily Journal reported, under the old standard many wage and hours cases were remanded to state court, but now the trend is toward cases staying in the federal court system.  The article quotes attorney Ken Sulzer as saying, “In the past, approximately 90% of these cases were remanded. . . .  The upshot is more of these cases will be kept in federal court.”  Sulzer is currently working on Woodward v. Healthcare Services Group Inc., in which the Ninth Circuit ordered U.S. District Judge Margaret M. Morrow to reconsider her decision to remand to state court because of the new standards.

Defense attorneys in general welcome the change because prior to Rodriguez, cases could be remanded for numerous, sometimes seemingly minor reasons.  Now in light of Rodriguez many observers think the game has been brought to a more level playing field, the Daily Journal reported.

While plaintiff’s attorneys would like to downplay the trend Rodriguez is creating, it appears at least for now that defense attorneys in wage and hour litigation have gained some ground in the ongoing struggle between removal and remand in class actions.

Ali Reza Mokhtari Fox