When and how can a defendant in a putative class action defeat a proposed class?  Defendants served with class action complaints frequently struggle with this question.  Typically, defendants wait until class certification briefing following lengthy discovery to contest class treatment.  This waiting game carries a high cost – discovery in class action cases is usually lengthy (even when bifurcated to address class certification first), expensive, and contentious, carried on while potentially ruinous exposure dangles over the defendant’s head.  Many defendants therefore consider filing early motions to strike class allegations prior to or during discovery to attempt to narrow the class—or … Continue Reading

On Tuesday May 28, 2019, the United State Supreme Court declined to afford state court third-party, class action defendants the ability to remove a class action to federal court. See Home Depot U.S.A., Inc. v. Jackson, 17-1471 (May 28, 2019).

In Jackson, Citibank, N.A., filed a debt-collection action against George Jackson in North Carolina state court. Jackson answered this action and filed his own claims: (1) an individual counterclaim against Citibank and (2) a third-party class-action against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc.

After Citibank dismissed its claims against Jackson, Home Depot filed a notice … Continue Reading

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

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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

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

Below, Chicago-based litigator Matt Gold weighs in on the implications of last week’s Supreme Court decision rejecting the sliding scale approach to specific jurisdiction in mass tort proceedings.

On June 19, 2017, the Supreme Court reinforced its narrow application of specific jurisdiction in mass tort proceedings in an 8-1 decision in Bristol-Myers Squibb Company v. Superior Court of California.  In the class action context, this ruling may impede future class representatives attempting to forum shop by filing suit in a state court that not only lacks general jurisdiction over the defendant, but also lacks a direct connection to the … Continue Reading

Diane Flannery and Annie Cai Larson provide their thoughts below on a Seventh Circuit Court of Appeals decision from earlier this year that held a counterclaim-defendant could not rely on CAFA to avoid state court. 

The Class Action Fairness Act (CAFA) was enacted in 2005 to expand the subject-matter jurisdiction that Federal courts had over class actions.  Yet CAFA’s reach is not unlimited, and in some instances, a corporation may still be stuck litigating a large-scale class action in state court—a venue friendly to class action plaintiffs.

Earlier this year, the Seventh Circuit Court of Appeals held in Tri-State Water Continue Reading