The roller coaster of employer liability under the background check provisions of the Fair Credit Reporting Act (FCRA) recently took an upswing with the California Court of Appeals’ decision in Culberson v. Walt Disney Parks & Resorts.  The Culberson court considered two class claims, both of which are now-familiar spindles ready to prick the fingers of unwitting employers.  First, Culberson alleged that he received a pre-background check notice from Disney that contained extraneous information, in violation of the FCRA’s requirement that the notice be provided in a document that “consists solely of the disclosure” (commonly known as the “standalone … Continue Reading

On Jan. 29, 2019, the 9th U.S. Circuit Court of Appeals, in a strikingly broad decision, raised the bar for employers’ compliance with the Fair Credit Reporting Act (FCRA). In Gilberg v California Check Cashing Stores LLC, the court held that an employer violates the FCRA by including, in a pre-background check notice form, information about a job applicant’s rights under various state laws. This decision will require significant revision of many employers’ FCRA consent forms.

The Gilberg court’s opinion focused on the FCRA’s pre-background check notice requirement, one of several notice and disclosure obligations the FCRA imposes on

… Continue Reading

Any good litigator can tell you that removal is proper where there is diversity of citizenship and the amount in controversy exceeds $75,000.  Diversity generally requires that no defendant be a citizen of the same state as the plaintiff.  By way of example, consider a lawsuit filed by Paul, a Pennsylvania citizen, in Pennsylvania state court against Daniel from California and David, also a Pennsylvania citizen.  At first glance, it would seem there is no diversity because David is from Pennsylvania and he is a “forum defendant”.  However, not all litigators may realize that in certain jurisdictions a defendant can … Continue Reading

As the new year begins, this is a good time to recap two of the major Supreme Court decisions from the past year impacting class action law, and to look ahead to a couple big decisions on the horizon.

Looking Back

Arbitration and Class Actions

First, in Epic Systems Corporation v. Lewis, the Court confirmed that class action waivers in arbitration agreements are enforceable in employment contracts, even where the employee is covered by the National Labor Relations Act (NLRA).  Within a year after the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, which held that the … Continue Reading

A number of changes to Fed. R. Civ. P. 23 took effect on December 1, 2018. They’ve been in the works for some time, so no surprises, but now is a good time to summarize them.  The changes deal primarily with class settlements and objections:

Rule 23(c)

Rule 23(c)(2)(B), which deals with class notice, has been expanded to encompass proposed settlement classes. Giving notice of proposed settlement classes is now discretionary under Rule 23(e) as discussed below.

Rule 23(c)(2)(B) also added a sentence specifying that the class notice may be made by U.S. Mail, electronic means, or other appropriate means. … Continue Reading

Below, Richmond-based litigators Bryan A. Fratkin and Heidi E. Siegmund examine the Seventh Circuit’s recent holding that an employment applicant’s missed opportunity to address a background check constitutes sufficient injury to confer standing. 

On August 29, the Seventh Circuit reentered the multi-front fray that has broken out among lower courts in the wake of the Supreme Court’s 2016 decision in Spokeo v Robins, 136 S. Ct. 1540 (2016).  Robertson v. Allied Solutions began with a familiar fact pattern:  Robertson applied for a job with Allied, and Allied decided not to hire her based on a negative, but accurate, background … Continue Reading

In a published decision issued yesterday, the U.S. Court of Appeals for the Ninth Circuit held that collective claims for alleged breaches of fiduciary duty under ERISA were not subject to the arbitration agreements in plaintiff employees’ employment contracts. Instead, since those claims were brought for the benefit of the ERISA plans in which the plaintiffs participated as a whole, they were outside the scope of the employees’ individual arbitration agreements, and could be litigated in court on a collective basis.

Qui Tam Claims Guided the Court’s Analysis, and May Guide Plaintiffs’ Counsel Going Forward

The Ninth Circuit’s decision may … Continue Reading

LA-based commercial litigator Arsen Kourinian has provided us with some timely notes from last week’s consumer finance litigation conference in Chicago:

On July 16 and 17, 2018, the American Conference Institute (ACI) hosted its 30th National Forum on Consumer Finance Class Actions and Government Enforcement in Chicago. The 2018 conference was well attended by many legal professionals, including in-house counsel, defendants’ and plaintiffs’ counsel, state and federal prosecutors and regulators, and federal judges. Themes covered at the conference included in-house counsel perspectives on aligning litigation costs with business goals, the nature of federal and state enforcement actions by state … Continue Reading

McGuireWoods Fintech industry team leader David Reidy and appellate litigator Jonathan Urick bring us this succinct analysis of the Supreme Court’s hotly anticipated decision on the doctrine of “equitable tolling” in class actions:

Class-action plaintiffs cannot toll the statute of limitations indefinitely by filing copycat class actions until certification sticks, the U.S. Supreme Court held on Monday, June 11, in China Agritech, Inc. v. Resh.  The Court refused to extend American Pipe tolling—which stops the limitations clock for putative class members’ individual claims while a putative class action is pending—to successive, overlapping class claims.  After a district court dismisses … Continue Reading

We’ve been monitoring the appellate battles over the enforceability of class- and collective-action waivers in the employment context since September 2016, when we pondered whether circuit splits would land the issue in the Supreme Court.  Since then, our colleagues in the Labor and Employment practice at McGuireWoods have supplied interim reports on the Supreme Court’s grant of certiorari in not one, not two, but three such cases, and on oral argument in those cases last fall.  Click here to read our colleagues’ succinct analysis of last week’s 5-4 decision upholding employee class- and collective-action waivers under the Federal Arbitration … Continue Reading