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
Below, Chicago partner Michael R. Phillips shares his thoughts on a petition for certiorari that could have a big impact on the evidentiary standards applied to plaintiffs pursuing class certification.
A major California grower has asked the Supreme Court to resolve a circuit split by holding that evidence used to support class certification must be admissible. The U.S. Court of Appeals for the Ninth Circuit is currently one of only two federal courts of appeal that allow class certification to be based on evidence that would not satisfy the standards for admissibility at trial. A uniform rule requiring class certification … Continue Reading
Los Angeles labor and employment litigators Michael Mandel and Amy Beverlin bring us perspective on three class-action waiver cases currently awaiting decision by the Supreme Court, as well as a potential path forward for class-action waivers in employment contracts.
Everyone is talking about the future of class-action waivers in employment arbitration agreements after the Supreme Court launched its new term this month with oral argument in three closely-watched cases—National Labor Relations Board v. Murphy Oil USA, Inc. (5th Circuit), Epic Systems Corp. v. Lewis (7th Circuit), and Ernst & Young LLP v. Morris (9th Circuit). In its impending decision, … Continue Reading
A recent 40-page opinion from the Central District of California illustrates how a Rule 12(b)(6) motion is still a viable vehicle to fight back against putative class actions. We have seen an increase in the number of product liability consumer class actions over the past ten or so years where plaintiffs expressly disclaim personal injury and wrongful death damages and only allege damages of repair of the product, diminution in value of the product, overpayment of the … Continue Reading
Brussels-based antitrust partner Matthew Hall brings us an update on two ongoing UK antitrust class actions and one on the horizon.
Antitrust class actions in the UK are beginning to take hold before the specialist Competition Appeal Tribunal (CAT), but progress is not all smooth. Two cases have been filed and another is about to be filed.
The first claim, started May 25, 2016 under the rules introduced on October 1, 2015, was relatively small, with an alleged claim value of £7.7 million, including interest. The claim was based on a type of resale price maintenance (RPM)—specifically, a finding … Continue Reading
Our colleague John F. O’Brien III brings us this helpful breakdown of the proposed Fairness in Class Action Litigation Act of 2017.
On March 9, 2017, the Fairness in Class Action Litigation Act of 2017 passed the House, 220-201, split almost entirely along party lines. No Democrats voted for the bill and only 14 Republicans voted against it. The proposal faces a number of obstacles, but if it passes, it will be the most sweeping revision of federal class action law to date.
Chairman of the House Judiciary Committee, Bob Goodlatte (R-Va.), who introduced the bill, was a principal author … Continue Reading
As recently reported by our colleague Brennan Bolt in one of our sister blogs, Labor Relations Today, the Supreme Court has answered a question I posed a few months ago by granting cert in not one, not two, but three cases involving the enforceability of class/collective action waivers in employment agreements. These decisions pit the National Labor Relations Board’s position that class/collective action waivers are inconsistent with the rights granted by the National Labor Relations Act, and therefore unenforceable, against the Federal Arbitration Act’s strong and long-standing policy favoring arbitration. We’ll be watching these cases closely as … Continue Reading
The following post, written by Shawna English and Laura Lange, was first published on McGuireWoods’s Password Protected blog. We’ve paid a lot of attention this year to how district and circuit courts have applied Spokeo, and welcomed the opportunity to reprint it here.
Earlier this year, the Supreme Court, in Spokeo, Inc. v. Robins, held that a bare procedural violation of a statutory requirement, divorced from any concrete harm, does not establish the injury-in-fact necessary to maintain a lawsuit in federal court. As the year comes to an end, it is clear that Spokeo has undoubtedly had an … Continue Reading
Last week, I had the privilege of attending the FJC’s 2016 Complex Litigation Conference, held in conjunction with Emory Law School’s Institute for Complex Litigation and Mass Claims. [Disclosure: I serve on the Institute’s Next Generation Board.] The conference covered issues in both class action and MDL cases, and was taught by luminaries on both sides of the complex litigation bar, and the audience largely comprised federal judges from various districts around the country.
Given the candor shown by both sides, as well as the judges’ willingness to ask questions and discuss their experiences, I’m going to treat the … Continue Reading
This week we consider the Sixth Circuit’s take on how Rule 23’s ascertainability requirement overlaps with the different pathways to certification under Rule 23(b), as well as some post-Spokeo dismissals of putative class actions for lack of standing.
Sixth Circuit Holds No Showing of Ascertainability Required for 23(b)(2) Class Action: The contours of Rule 23’s implicit “ascertainability” requirement are rarely clearly defined, and often differ between circuits. In affirming the district court’s certification of a class of individuals contesting the police department’s method of clearing the streets at 3:00 a.m., the Sixth Circuit reminded practitioners that the … Continue Reading