CLASS ACTION DEFENSE BLOG
Welcome to Michael J. Hassen's Blog. Here you will find over 2,000 articles related to class actions.
Judicial Panel Grants Defense Request, Over Plaintiffs’ Objections, for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and Agrees With Defense that District of Minnesota is Appropriate Transferee Court Twenty-eight class action lawsuits were filed in 27 districts against various defendants, including KFC Corp. alleging violations of the federal Fair Labor Standards Act (FLSA) for failure to pay assistant managers overtime pay. In re KFC Corp. Fair Labor Standards Act Litig.
Class Action Court Decisions Employment Law Class Actions Multidistrict Litigation Uncategorized
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Plaintiffs in Labor Law Class Action Failed to Establish that Defense Failed to Properly Respond to Pre-Certification Discovery and Defense failed to Establish Good Cause for Untimely Designation of Rebuttal Expert District of Columbia Federal Magistrate Holds
Plaintiffs, five deaf employees of the United States Postal Service (USPS), filed a putative class action alleging that they were “denied a qualified sign language interpreter at safety meetings and mandatory work meetings” and that this “prevented from performing their duties safely, which they contend is an essential function of their job.” Hubbard v. Potter, 247 F.R.D 27, 2008 WL 43867, *1 (D.D.C. 2008). Plaintiffs alleged that a class action could be certified under either Rule 23(b)(2) or (b)(3), and sought pre-certification discovery to support a motion for class action certification. Id. Defense attorneys moved to terminate pre-certification discovery and for leave to designate a rebuttal expert witness, id. The federal magistrate granted the first motion but denied the second.
With respect to their first motion, defense attorneys argued that plaintiffs had been given sufficient time to conduct the discovery necessary to file for class action certification, and that further discovery was inappropriate pre-certification because “Plaintiffs either (a) have the evidence they need for class certification and are attempting to collect that which they need for trial on the merits, or (b) have failed in their attempts to meet the class certification requirements following this Court’s dismissal of their first class complaint and are trying to squeeze every last document out of the Postal Service in a vain attempt to piece together a plausible class certification theory for their second amended complaint.” Hubbard, at *1. Plaintiffs’ opposition “raised legitimate concerns regarding the discovery that has been thus far produced by defendant,” characterizing USPS’s discovery responses as “grossly insufficient and manifestly incomplete.” Id.
Class Action Court Decisions Employment Law Class Actions Uncategorized
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Motion to Intervene in Class Action under Age Discrimination in Employment Act (ADEA) Denied because of Failure to Comply with Statutory Deadline for Filing Notice of Intent to Sue and Former Plaintiff’s Motion to Rejoin Class Action Fails as Time-Barred District of Columbia District Court Holds
Plaintiffs, air traffic controllers, filed a putative class action against their federal employer alleging violations of the Age Discrimination in Employment Act (ADEA), following a February 2005 work force reduction that would, and did, result in their termination in October 2005. Breen v. Peters, 529 F.Supp.2d 24, 2008 WL 62626, *1 (D.D.C. 2008). Plaintiffs bypassed the administrative complaint process, provided the requisite 30-day notice of intent to sue, see 29 U.S.C. § 633a(d), and in March 2005 filed the class action. Id. Plaintiffs subsequently moved to join 20 individuals as named plaintiffs, and the 20 individuals simultaneously moved for leave to intervene; additionally, one plaintiff dismissed from the class action at his request, filed a motion to be reinstated as a party plaintiff. Id. Oddly, the class action complaint defined an 834-person class by name, attaching as an exhibit a list of each of the individuals on whose behalf the putative class action had been filed. Over the course of the litigation, some class members were added and others were dismissed; however, the 20 individuals seeking leave to intervene were never part of the putative class. Id. Defense attorneys opposed each of these motions, id. The district court denied the motions.
With respect to the 20 individuals, defense attorneys argued that they should be denied leave to join the class, either as named plaintiffs or by intervention, because they failed to comply with the statutory filing deadlines for bringing an ADEA claim. Plaintiffs’ conceded this point, but argued, in essence, that since there were more than 800 members of the putative class, what’s another 20? Breen, at *1. The federal court found unpersuasive the argument that the 20 should be permitted to piggy-back on the timely claims filed by or on behalf of the members of the putative class: The ADEA expressly requires that notice of intent to sue be filed with the Equal Employment Opportunity Commission within 180 days of the allegedly unlawful act, see 29 U.S.C. § 633a(d), and while this deadline is not jurisdictional and may, under appropriate circumstances, be deemed tolled, “a court should use its equitable power to toll a statutory deadline only in extraordinary and carefully circumscribed circumstances.” Id., at *2. As the moving parties, the 20 individuals bore the burden of persuaded the district court that the statutory deadline had been equitably tolled, but they failed to meet that burden, id. Indeed, they offered no facts in support of their motion but, rather, “argue[d] that they should be treated as having vicariously met the statutory filing deadline, because several hundred plaintiffs in the case did provide timely notice to the defendants of their intent to sue under the ADEA in compliance with 29 U.S.C. § 633a(d).” Id. They argued defendants would not be prejudiced by adding 20 more class members, but they did not counter the argument that they simply sat on their rights as the statutory deadline passed, id. Accordingly, the district court refused the motions seeking to add the 20 individuals to the class action. Id., at *3.
Class Action Court Decisions Employment Law Class Actions Uncategorized
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District Court Properly Granted Defense Motion for Summary Judgment as to Class Action Claims on Behalf of Insurance Claims Adjusters because Undisputed Facts Established that Class of Employees Covered by Action Fell Within FLSA’s Administrative Exemption Seventh Circuit Holds
Plaintiffs filed a class action lawsuit against their employer, CC Services, alleging violations of the federal Fair Labor Standards Act (FLSA); specifically, the class action complaint alleged that defendant misclassified the class of employees on whose behalf the action was brought (four classes of insurance claims adjusters) in order to avoid paying them overtime. Roe-Midgett v. CC Services, Inc., ___ F.3d ___ (7th Cir. January 4, 2008) [Slip Opn., at 1-2]. Defense attorneys moved for summary judgment as to all of the class action claims, _id._, at 6. The district court granted the defense motion, _id._ In ruling against plaintiffs’ class action claims, the federal court applied “the Department of Labor’s so-called ‘short test’ for determining whether employees fall within the FLSA’s administrative exemption,” and “concluded that the primary duties of all four claims-processing positions involved matters (1) ‘directly related to management policies or general business operations’ and (2) ‘requiring the exercise of discretion and independent judgment.’” _Id._, at 2. Plaintiffs appealed, and the Seventh Circuit affirmed.
CC Services processes insurance claims for auto, home, commercial and farm insurers. Slip Opn., at 3. It operates out of 37 field offices, and in 2004 settled $600 million in claims, id. Each field office is staffed with Property Specialists, Field Claims Representatives, and Material Damage Appraisers (MDAs). Id. The Seventh Circuit noted that plaintiffs presented only limited arguments on appeal with respect to the district court’s summary judgment order concerning Property Specialists and Field Claims Representatives (II and III), id., at 2; as to those three classes, plaintiffs argued that material issues of disputed fact precluded summary judgment on the class action claims, “[b]ut they failed to identify any real factual dispute specific to these employees,” id. The Circuit Court focused, therefore, on the claim that the duties of MDAs failed to meet the requirements for exemption under the short test. Id. The Seventh Circuit summarized the jobs performed by MDAs and its conclusion at pages 2 and 3 as follows:
Class Action Court Decisions Employment Law Class Actions Uncategorized
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Employee Retirement Income Security Act (ERISA) does not Impose Legal Duty on Fiduciaries to Disclose to Participants that they are Selling Most of Their Own Stock in Company Seventh Circuit Holds
Plaintiffs, participants in the defined-contribution supplemental pension plan of their employer Indianapolis Power & Light Company (the Thrift Plan), filed a class action against the Plan’s fiduciaries alleging breach of duties under ERISA (Employee Retirement Income Security Act) based on defendants’ failure to disclose to Plan participants that they had sold most of their own stock in the company. Nelson v. Hodowal, ___ F.3d ___, 2008 WL 90057, *1 (7th Cir. January 2, 2008). The district court certified the litigation as a class action and the class action proceeded to trial. _Id._, at *2. The district court found in favor of defendants and plaintiffs appealed, _id._ The Seventh Circuit affirmed.
The Seventh Circuit summarized the factual underpinnings of the class action as follows. The Thrift Plan “initially limited employees to holding stock of IPALCO Enterprises, Inc., the employer’s parent corporation, or bonds issued by the United States,” but was subsequently amended to permit participants “to diversity their investments” and, ultimately, nine (9) options ranging “from very conservative (a money-market fund) to risky (IPALCO stock and nothing else).” Nelson, at *1. “The Plan hired Merrill Lynch, Pierce, Fenner & Smith, Inc., to advise the participants about appropriate investments; Merrill Lynch stressed the benefits of diversification. The Plan allows participants to change investments among the nine options daily, with no need for advance notice.” Id. However, “all of the employer’s matching contributions were allocated to IPALCO stock; the Plan’s terms made this mandatory.” Id. IPALCO merged with global energy company AES Corporation in 2001, and “AES offered a premium of 16% relative to the price at which IPALCO’s stock had traded the day before the announcement.” IPALCO stock climbed following the announcement, and by the time the merger closed “about 64% of investments in the Thrift Plan were held as IPALCO stock ($145.4 million of the Plan’s total assets of $228.1 million).” Id. Because AES is significantly larger than IPALCO, IPALCO’s performance does not significantly impact the market value of AES stock. Nelson, at *1. “When the merger closed, AES was trading for $49.60 a share,” but it began a rapid descent and on February 21, 2002 it “reached a low of $4.11.” Id. The record does not reflect the reasons for the stock’s decline but does confirm that “it continues to be a substantial enterprise” with $6.7 billion in revenues in 2000 and “a profit of roughly $1.40 a share” and $12.3 billion in revenues in 2006. Id. “The stock closed on December 18, 2007, at $21.58.” Id.
Plaintiffs filed a class action against the Plan’s fiduciaries alleging ERISA violations. Nelson, at *2. “The principal contention was that the fiduciaries (all of whom were executives at Indianapolis Power & Light) should have seen the decline coming, or at least should have understood that AES is too volatile to be a suitable investment for pension holdings, and therefore had to compel all of the participants to exchange their IPALCO stock for the Plan’s other investment options before the merger closed.” Id. The class action proceeded to a bench trial, and the district court “found essentially every disputed fact in defendants’ favor.” Id. (citing 480 F.Supp.2d 1061 (S.D. Ind. 2007)). Specifically, the district court “concluded that the defendants had no reason to foresee any decline in the price of AES’s stock (had, indeed, no inside information about AES) and that reasonable fiduciaries would have deemed AES a suitable stock.” Id. Further, the judge “concluded that an ERISA fiduciary is not obliged to strip participants of the ability to make their own decisions, for good or ill” and that “the fiduciaries [were not] obliged (or even allowed) to disregard the Plan’s provision requiring all of the employer’s contributions to be held as IPALCO (and then AES) stock.” Id.
Employment Law Class Actions Uncategorized
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California Appellate Court Holds that Class Action Claims Seeking not Wages but Rather Waiting Time Penalties for Late Payment of Wages are Governed by One-Year Statute of Limitations Thus Supporting Defense Motion to Strike Portions of Class Action Complaint Plaintiff filed a class action against his employer, Kimco Staffing Services, which places temporary employees; the class action complaint alleged that Kimco “fail[ed] to timely pay final wages on completion of temporary work assignments in violation of [California] Labor Code sections 201 and 202.
Class Action Court Decisions Employment Law Class Actions Uncategorized
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Following Panel Opinion Holding that District Court did not Clearly Err in Finding UPS Violated Federal Americans with Disabilities Act (ADA) by Refusing to Hire Deaf Drivers but that Defense was Correct that Class Action Judgment Based on Violation of California’s Unruh Act Must be Reversed, Ninth Circuit En Banc Overrules Prior Ninth Circuit Authority and Remands Class Action for Further Proceedings on ADA Claim
Plaintiff filed a putative class action in California federal court against United Parcel Service alleging violations of the federal Americans with Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA) and Unruh Civil Rights Act (Unruh Act) because it “categorically exclude[s] individuals from employment positions as ‘package-car drivers’ because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question.” Bates v. United Parcel Serv., Inc., 465 F.3d 1069, 1073 (9th Cir. 2007) (Bates I). The district court certified the lawsuit as a class action. After a bifurcated trial, the district court ruled against the defense and found that UPS violated the ADA, the FEHA and the Unruh Act. On appeal, defense attorneys argued that “(1) Bates did not establish that any class members are ‘qualified’; (2) UPS satisfied its burden under the business necessity defense of the ADA; (3) the plaintiff class should be decertified; (4) the court’s injunction was an abuse of discretion; and (5) UPS did not violate the FEHA or the Unruh Act.” Id. The Ninth Circuit originally affirmed the judgment as to the ADA claim, reversed the judgment as to the Unruh Act, and refused to reach the FEHA claim finding it unnecessary in light of the fact that affirmance of the ADA claim “is sufficient grounds for affirming the injunction.” Id., at 1093 n.25. Defense attorneys sought and obtained rehearing en banc “to consider the contours of a claim that an employer’s safety qualification standard discriminates against otherwise ‘qualified’ persons with disabilities…, and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under 42 U.S.C. § 12113(a),” Bates v. United Parcel Serv., Inc., ___ F.3d ___ (9th Cir. December 28, 2007) _Bates II_ [Slip Opn., at 16891], and the Ninth Circuit reversed the Panel opinion.
The gravamen of the class action complaint was summarized in our article discussing the original Ninth Circuit opinion, which may be found here . In brief, applicants for positions as UPS package drivers must, inter alia, pass the same physical exam that the United States Department of Transportation requires of prospective drivers of commercial vehicles, which includes a “forced whisper” test of the applicants’ hearing. Bates II, at 16892-93. However, the DOT only requires a physical exam of those who will be driving vehicles with a gross weight in excess of 10,000 pounds. UPS, on the other hand, required the exam of all applicants, including the thousands of drivers operating vehicles weighing from 7100 to 9300 pounds. Id., at 16893. The class conceded that UPS may require the physical exam of who drive DOT-regulated vehicles, but argued that its blanket exclusion of deaf applicants violated state and federal laws. Bates I, at 1075. The district court ruled in favor of the class, holding in part that UPS had failed to establish a business necessity defense to its actions. Id.
Class Action Court Decisions Employment Law Class Actions Uncategorized
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Judicial Panel Grants Defense Request, Over Objection of Certain Plaintiffs, for Pretrial Coordination of ERISA Class Action Lawsuits Pursuant to 28 U.S.C. § 1407 and Concurs with Defense Request to Transfer Class Actions to Northern District of Texas Four class action lawsuits – there in the Northern District of Texas and one in the Eastern District of Texas – were filed against RadioShack and other defendants alleging breach of fiduciary duties under the federal Employee Retirement Income Security Act (ERISA).
Class Action Court Decisions Employment Law Class Actions Multidistrict Litigation Uncategorized
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Ninth Circuit Reaffirms that District Court did not Abuse its “Broad Discretion” in Certifying Nationwide Sex Discrimination Class Action Against Wal-Mart Creating “the Largest Certified Class in History”
In June 2001, plaintiffs filed a putative class action against Wal-Mart in the San Francisco federal court alleging sex discrimination in the payment of wages and in promotions. In April 2003, plaintiffs moved to certify a nationwide class action on behalf of 1.5 million former and present female employees “employed in a range of Wal-Mart positions – from part-time, entry-level, hourly employees to salaried managers.” Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007). Defense attorneys argued that the requirements of Rule 23 had not been satisfied, stressing in particular several problems inherent in litigating a class of record size. More than a year later, in an 84-page decision handed down in June 2004, the district court rejected all but one of the defense arguments and, save for that one point, certified the class action as requested by plaintiffs. Both sides appealed and on February 6, 2007 the Ninth Circuit affirmed the district court order in all respects; our article discussing that opinion may be found here .Defense attorneys asked the Panel to reconsider its decision, and on December 11, 2007 the Ninth Circuit again affirmed class action treatment of the claims against Wal-Mart. Dukes v. Wal-Mart, Inc., ___ F.3d ___ (9th Cir. December 11, 2007) [Slip Opn., at 16207 et seq.] The Panel denied rehearing, withdrew its February 6, 2007 opinion, and filed a new Opinion and Dissent affirming the class action order. _Id._, at 16212.
Plaintiffs’ motion sought certification of a nationwide class action on behalf of “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Dukes, at 16213. Wal-Mart stressed the “‘historic’ nature of Plaintiffs’ motion, inasmuch as it concerns a class of approximately 1.5 million women who work or worked in one or more of Wal-Mart’s 3,400 stores in 41 regions at any time since 1998.” Id., at 16214. The district court recognized Wal-Mart’s concerns but concluded that “while the class size was large, the issues were not unusual.” Id. The Ninth Circuit summarized the district court’s order at page 16214 as follows:
Certification of Class Actions Class Action Court Decisions Employment Law Class Actions Uncategorized
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Based on the Specific Facts Presented by this Class Action Case, the District Court Properly Compelled Arbitration of Plaintiffs’ Fair Labor Standards Act and State Law Equivalent Class Action Claims but Properly Found that the Class Action Waiver Clauses in the Employer’s Dispute Resolution Program were Unconscionable First Circuit Holds
Plaintiffs filed a class action lawsuit against their former employer, Dynamics Research, alleging violations of the federal Fair Labor Standards Act (FLSA) and the Massachusetts Minimum Fair Wage Law. Skirchak v. Dynamics Research Corp., ___ F. 3d ___, 2007 WL 4098823, *1 (1st Cir. November 19, 2007). The class action complaint followed a complaint by Skirchak with the U.S. Department of Labor that resulted in an agreement by the company to pay back $75,000 to employees and to change its practices, _id._ Plaintiffs’ class action alleged that Dynamics misclassified employees as exempt in order to avoid paying them overtime and improperly made partial-day deductions from employee paid leave balances, and sought damages beyond those recovered by the DOL. _Id._ Defense attorneys moved to dismiss the complaint and compel arbitration pursuant to the terms of a Dispute Resolution Program that required arbitration of all disputes and prohibited class action claims. _Id._, at *2. The district court granted the defense motion to compel arbitration, but held that class-wide relief could be pursued therein because the class action waiver was unconscionable under Massachusetts state law, _id._ Our prior article discussing the district court opinion may be found here. Both sides appealed: the defense challenged the striking of the class action waiver; plaintiffs challenged the order compelling arbitration. _Id._ Plaintiffs subsequently agreed to arbitration but insisted on the right to pursue a class action because the class action waiver was unenforceable, _id._ The First Circuit affirmed.
Preliminarily, it bears noting that the First Circuit “[did] not reach the argument that waivers of class actions themselves violate either the FLSA or public policy.” Skirchak, at *1. Further, whether plaintiffs will succeed in obtaining class action certification was left to the arbitrator, id. The Circuit Court addressed only (1) whether the arbitration clause was enforceable, and (2) whether the class action waiver was enforceable. The First Circuit began by summarizing the Dispute Resolution Program and the notice provided to employees of its terms. See id., at *2-*3. In pertinent part, the Circuit Court observed that if an employee “read only the e-mail, the descriptive memorandum and the fifteen-page Program description” concerning the Program, she “would not know of the class action waiver.” Id., at *3. The class action waiver clauses were contained only in the Appendices to the Program, id., but even if an employee found the class action waiver provisions he “would likely still be confused” because of apparent inconsistencies in the documentation, id., at *4. Finally, the First Circuit noted that the adopted and implemented by e-mail notification to employees sent shortly before a holiday that deemed employees to have consented to the class action waivers if they returned to work following the holiday. Id., at *5.
Arbitration Class Action Court Decisions Employment Law Class Actions Uncategorized
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