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
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
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
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
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
Few collective actions are tried, and even when they are, unexpected problems can easily arise. Those problems in a recent case led to the court vacating a jury verdict for the plaintiffs due to what might be characterized as...more
In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. ...more
We’ve commented many times before that relatively few collective actions survive the “second stage” motion to decertify or, relatedly, an unofficial “third stage” when the trial court actually considers how the matter will be...more
Connecting the dots will likely be a problem down the road . . .
The overwhelming majority of employment class or collective actions today are wage and hour matters....more
With scores of collective actions being filed every month and many courts willing to issue conditional certification on even very weak claims, it’s easy to forget that, yes, it’s important for there to be a claim in the first...more
We’ve written many times in this blog about the two-step procedure used by many courts in Fair Labor Standards Act (FLSA) cases in collective actions. The first step is to provide notice to the proposed class and is typically...more
Is the saying “fish or cut bait” dead? If you are ever in need of sleep, pull out your copy of the U.S. Code and traipse through the exemptions contained in section 13 of the FLSA, 29 U.S.C. § 213. We’re all familiar with the...more
It is almost an axiom that the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., passed in 1938, is out of date. Despite modest tweaks since the time it was enacted, a particularly dark time in the Great Depression, it is...more
Because of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is...more
It’s hard enough to predict what the Supreme Court will do on a given case even after it has been briefed and oral argument has been heard. It’s even harder when all we have is the decision accepting certiorari, but this one...more
6/11/2015
/ Calculation of Damages ,
Certiorari ,
Class Action ,
Class Certification ,
Collective Actions ,
Damages ,
Employer Liability Issues ,
Fair Labor Standards Act (FLSA) ,
Federal Rules of Civil Procedure ,
FRCP 23(b)(3) ,
SCOTUS ,
Tyson Foods ,
Tyson Foods v Bouaphakeo ,
Wage and Hour
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
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
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
Last week, the United States Supreme Court confirmed what we informed readers of in our Employment Class Action Blog on February 21, 2011, "A timely and properly worded offer of judgment may moot a collective action and...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
Today the United States Supreme Court delivered an unexpected present to employers facing FLSA collective actions and held that a defendant may moot such a case by making a Rule 68 offer of judgment to the named plaintiff....more