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Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same enforcement applies to claims under the Equal Pay Act (EPA), 29 U.S.C. Section 206(d). The EPA is itself the result of a 1963 amendment to the FLSA, predating Title VII’s prohibition on sex discrimination by several months but…
We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial. See: “Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case” from Sept. 21, 2018, and “Ohio District Court Decertifies Class of Health Care Workers in Meal Break Case” from Feb. 12, 2013. The problem in many respects is that some courts will…
More games of cat and mouse Following the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), plaintiffs have tried to come up with strategies to address the impact of arbitration agreements in class and collective cases. (We blogged the Epic Systems decision here). Defendants, in turn, have had to address courts that have limited or that have refused to enforce such agreements despite the broad holdings in the Epic Systems…
Expert’s Report Didn’t Adequately Explain Causation While antitrust cases are often good candidates for class action treatment, it is still important for the plaintiffs to demonstrate a connection between the alleged anti-competitive conduct and the alleged harm, as a recent case from the Western District of Texas found. In Maderazo v. VHS San Antonio Partners, L.P., Case No. SA-06-CA-535-OG (W.D. Tex. Jan. 22, 2019), the plaintiffs were registered nurses working for hospitals in the…
Most employment class actions today are wage and hour matters, but class actions for alleged discrimination are still brought and can present their own unique challenges for both plaintiffs and the defense. Apart from the procedural differences between Fair Labor Standards Act collective actions and Rule 23 class actions, one key difference between wage and hour cases and those for discrimination is the need to determine the employer’s intent. In sexual harassment cases, there is…
In this era where there appears to be a new data security incident announced each month, there is surprisingly little class certification jurisprudence for data security class actions. Indeed, to date we know of only four decisions that have addressed class certification of data privacy actions, excluding settlement certification, and only one of those addresses the release of employee data: Dolmage v. Combined Ins. Co. of Am., No. 14 C 3809, 2017 WL 1754772, at *7 (N.D.…
On Jan. 8, 2019, the U.S. Supreme Court issued a unanimous decision regarding an important procedural issue under the Federal Arbitration Act (FAA). In Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272, it held that under the FAA, courts must enforce provisions in arbitration agreements delegating threshold questions of whether claims are subject to arbitration to the arbitrator. In so doing, the Court overruled a rule that allowed federal courts to…
Extensive expert report still fails to establish fairness and manageability for trial. A growing number of courts are questioning classwide proof in off-the-clock cases, and those examining expert testimony in such matters are increasingly coming to the conclusion that they cannot be fairly managed for trial. We’ve blogged this issue several times (see, for example, January 8, 2019 and April 9, 2018). Another interesting recent example is the decision of the California Court of…
Ruling also touches upon FLSA conditional certification order Many wage and hour cases filed today try to name popular targets and to rely upon tried and true allegations. Unfortunately for employers, this is at times a successful playbook, particularly when settlement is the primary goal. That approach, however, doesn’t always work, particularly if the district court doesn’t employ the appropriate rigorous analysis under Rule 23, as a case decided on New Year’s Eve demonstrates. That…
A claim is brought against a large employer contending that, although personnel decisions are made locally, it discriminates in pay and promotions on the basis of sex nationwide. Sound familiar? That was, essentially, the claim in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), that the Supreme Court held should not have been certified. And seven years later, it was the claim the Southern District of New York has now refused to certify in…