We previously wrote about the rising trend of mass arbitration and how companies and arbitration providers have responded to it thus far, including by adopting new rules and contract terms specifically geared towards coordinated proceedings. It may be tempting to impose strict controls on how mass arbitrations can proceed. But in considering their options, companies
Post-Litigation Refund Check Does Not Moot Class Representative’s Damages Claim, but It Does Defeat Class Certification
When a class action is filed, defendants often wonder whether tendering a payment to a class representative can defeat the claims. In a recent decision, the Third Circuit held that a mid-litigation payment to a class representative plaintiff does not moot her claim if the check is not cashed. Duncan v. Governor of the Virgin Islands, — F.4th —-, 2022 WL 3906213 (3d Cir. Aug. 31, 2022). But tendering the payment, even if the check is uncashed and even if the plaintiff claims the payment does not cover the full value of her claim, did make the plaintiff an atypical class representative and provided a basis to defeat certification of a damages class.
Ninth Circuit Panel To Reconsider Whether FAA Preempts California Labor Law
We previously wrote about Chamber of Commerce v. Bonta, 13 F.4th 766 (9th Cir. 2021), in which a split panel of the Ninth Circuit held that the Federal Arbitration Act does not preempt a California Labor Code provision prohibiting employers from requiring applicants or employees “to waive any right, forum, or procedure” for
Individualized Damages Issues Preclude Class Certification in Eleventh Circuit
On the heels of the Ninth Circuit’s recent decision in Bowerman—which held that questions concerning the “existence of damages” for each class member can prevent certification—the Eleventh Circuit became the latest in a growing number of courts to conclude that class certification should be denied when plaintiffs cannot prove that each individual class member actually suffered damages.
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Ninth Circuit Gives Teeth To Predominance in Voiding a Misclassification Suit Win
A recent Ninth Circuit decision continues to emphasize how, post-Comcast, defendants should look for ways to characterize individualized issues as questions of liability, not questions of damages.
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Third Circuit Refuses to Accept Inferences to Support Findings of Numerosity and Commonality
The Third Circuit’s recent decision in Allen v. Ollie’s Bargain Outlet, Inc., — F.4th —-, 2022 WL 2284654 (3d Cir. 2022), gave close scrutiny to two elements of the class certification inquiry – numerosity and commonality – that are often deemed satisfied with little analysis, and rejected the district court’s reliance on inferences drawn from limited evidence.
Supreme Court Hands California Employers a Significant (if Qualified) Win
On June 15, the Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana, No. 20-1573, holding that the Federal Arbitration Act (“FAA”) requires California courts to honor agreements to arbitrate individual claims under the California Labor Private Attorneys General Act of 2004, Cal. Lab. Code § 2698 et seq. (“PAGA”). Although Viking River Cruises is a significant win for California employers, it remains to be seen whether and to what extent the full scope of that win will be durable.
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Supreme Court Decision Makes It Easier to Waive Right to Arbitration
On May 23, 2022, the Supreme Court unanimously held that a party opposing arbitration is not required to demonstrate prejudice to show that the other party has waived its contractual arbitration rights.
Before today’s decision, nine federal courts of appeals had adopted the rule that a “party can waive its arbitration right by litigating only when its conduct has prejudiced the other side.” Morgan v. Sundance, 596 U.S. __ (2022). Two other circuits had held no showing of prejudice was required.
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Practice Pointers: Know Your Plaintiff
One of the most common failings of plaintiffs’ counsel is inadequate due diligence on the individuals they put forward as putative class representatives. Defense counsel should not repeat that mistake.
It is not unusual for putative class representatives to have flawed personal claims or to be subject to important individual defenses. A named plaintiff may also present facts that make his claim demonstrably atypical of the class, or he may have baggage – such as a past criminal conviction for fraud – that make him facially inadequate as a class representative. Sometimes it turns out a named plaintiff isn’t even a member of the proposed class.
Heartbreakers Gentlemen’s Club Gets Lucky with Arbitration Win in Fifth Circuit
A recent Fifth Circuit decision continues the trend of courts rejecting putative class and collective actions where absent class members are subject to arbitration agreements.
Exotic dancers sued A&D Interests, Inc. (doing business as the “Heartbreakers Gentlemen’s Club”) in a putative Fair Labor Standards Act collective action for allegedly misclassifying the club’s dancers as independent