In Domino’s Pizza LLC v. Carmona, Domino’s petitioned the U.S. Supreme Court to clarify whether drivers making only in-state deliveries of goods, ordered by in-state customers from an in-state warehouse, engaged in interstate or foreign commerce, exempting them from arbitration under Section 1 of the Federal Arbitration Act. The Supreme Court on October 17, 2022, granted Domino’s petition for certiorari, vacated the Ninth Circuit’s ruling allowing the drivers to ... Keep Reading »
Labor, Employment & ERISA Class Action Articles
The latest class action developments and trends in labor, employment and ERISA, including news, key cases, and strategies.
District Court Asks Sixth Circuit to Review Two-Step FLSA Collective Certification Test
The Sixth Circuit will soon tell us whether it will follow the Fifth Circuit’s lead in Swales v. KLLM Transport Services LLC and adopt a more exacting, one-stage certification approach for Fair Labor Standards Act collective actions, or instead officially adopt the two-stage certification process set out in Lusardi v. Xerox Corp., which is currently followed by most district courts. In Holder v. A&L Home Care & Training Center LLC, former aides claimed that ... Keep Reading »
One Game, One Stadium: Eleventh Circuit Spikes Collateral Challenge to Tampa Bay Buccaneers Proposed Class Action Settlement
The Eleventh Circuit recently imparted an important message to the class action bar, and in particular to attorneys representing different named plaintiffs in competing class actions: there is “only one gatekeeper under Rule 23,” so any challenge to a proposed class action settlement should be presented to the district judge deciding whether to approve that settlement, not to a different judge by way of a collateral attack on the proposed settlement. Several years ... Keep Reading »
Authority Over Efficiency: District Court Lacks Authority To Rule On Arbitration Preemption Question In Remanded PAGA Action, Ninth Circuit Says
As a recent Ninth Circuit decision demonstrates, although substantial time, effort, and briefing may be spent litigating issues in a removed federal putative class action, parties should be prepared for a round two of their persuasion attempts in state court where the case is remanded to state court. In Echevarria v. Aerotek, Inc., a California district court remanded a representative action filed under California’s Private Attorneys General Act (PAGA) after finding ... Keep Reading »
CAFA: Ninth Circuit Affirms District Court’s Sua Sponte Invocation and Application of Discretionary Home State Exception
On May 13, 2020, the Ninth Circuit Court of Appeals affirmed the remand of a wage and hour class action lawsuit filed in California state court based on the home state exception to the Class Action Fairness Act (CAFA). In its opinion affirming the remand, the Ninth Circuit explored both parts of the home state exception. Defendant West Marine removed the lawsuit to federal court under CAFA. There was no dispute that West Marine’s CAFA removal satisfied the statutory ... Keep Reading »
Forewarned Is Forearmed: Why Companies Need to Review Their COBRA Notices to Avoid Growing Class Action Trend
Even before the current pandemic crisis, we have noticed a growing trend in the filing of class action lawsuits challenging, under the Consolidated Omnibus Budget Reconciliation Act (COBRA), notices required to be issued by covered employers regarding continuation health care coverage available to employees and their beneficiaries under a variety of circumstances, including involuntary or voluntary job loss. We believe that trend will only accelerate in the wake of ... Keep Reading »
Reporting for Work
Does reporting for work require physically showing up at the place ready to work? The Ninth Circuit just confronted this issue. It decided that California’s Wage Order No. 7-2001 does not require an employee to report to work in person in order to qualify for reporting time pay. No physical presence is required. Although this case does not directly implicate the variety of remote and virtual work arrangements that have been instituted in light of the current public ... Keep Reading »
A Dart Across the Bow
The Ninth Circuit Court of Appeals recently underscored that removal practice under the Class Action Fairness Act (CAFA) differs in some important respects from traditional removal practice in non-CAFA cases. It did so because, “[i]n some of our early cases interpreting CAFA, we adopted legal standards that were influenced by a general ‘presumption against federal jurisdiction.’” Now, of course, the Supreme Court in Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 ... Keep Reading »
Hearsay What? EDNY Finds That Class Certification Evidence Must Be Admissible
Lin v. Everyday Beauty is an Eastern District of New York decision addressing an issue that has divided district courts in the Second Circuit and elsewhere: Whether a federal court may consider inadmissible evidence when deciding a class certification motion. This district court found that it could not do so. The plaintiffs, former retail sales employees of the defendants, moved to certify a class of essentially everyone employed by the defendants, beauty supply ... Keep Reading »
Fifth Circuit Bars Notice of FLSA Collective Actions to Arbitration-Bound Employees
The Fifth Circuit recently became the first federal court of appeals to hold that employees who signed arbitration agreements should not receive notice of collective actions. This case of first impression among the courts of appeal could serve as a powerful tool for employers combatting collective actions under the Fair Labor Standards Act (FLSA). Accordingly, we think the decision is deserving of more detailed analysis than a mere summary. A Splintered Approach In ... Keep Reading »
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