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

 Superiority (which requires a court to find "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy") is an often-overlooked area of Rule 23, perhaps because these days, it comes with a nice long, non-exhaustive list of factors to consider, including:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the

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 As a class action lawyer (and one who defends class actions, no less), I often face the problem of explaining to friends and family exactly what I do all day. The cases themselves are often interesting, but the way we lawyers go about defending them–by mastering the arcana of one of the Federal Rules of Civil Procedure–can seem hopelessly dry. And that is why, at times, I have comforted myself with the (hollow, I admit) consolation that at least I’m not an ERISA lawyer.

Except, of course, that ERISA can spawn class-action lawsuits as well. Some simply challenge a … Continue Reading

The tactic is more common that one might imagine: when plaintiffs file their motion for certification, they may include an expert report from a noted law professor, testifying that their case is ideally suited for certification under Rule 23. Now, on one side of the certification debate, you have practicing lawyers zealously representing their client, and on the other, a ostensibly neutral expert in civil procedure. How can a defendant effectively oppose a motion like this?

By excluding the expert, which is easier than it first appears. Take the case of Walsh v. Principal Life Insurance Co., 266 F.R.D. … Continue Reading

The final "classic case" for now, Sprague v. General Motors Corp. involved an alleged violation of the Employee Retirement Income Security Act of 1974 (ERISA). The plaintiffs had sued GM claiming that it had not provided them with the fully "paid up" lifetime healthcare benefits it had promised when it convinced them to take early retirement. The trial court certified a class of 50,000 early retirees, and declined to certify a class of 34,000 general retirees. GM appealed the certification of the early retiree class, and the plaintiffs appealed the denial of certification of the general retiree … Continue Reading