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

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

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

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

On May 16, 2016, the U.S. Supreme Court held in Spokeo, Inc. v. Robins 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.  The Court acknowledged, however, that an alleged violation of a procedural statutory right could establish the requisite concrete injury if the violation creates “a risk of real harm.”

The Supreme Court’s ruling has been much anticipated by both sides of the class-action bar. All interested parties must continue to watch and wait, it appears, as the Ninth Circuit will … Continue Reading

Expectations were high in the class action world for the Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo.  At first blush, however, Tyson seems to be neither the test case nor the blockbuster decision that many expected it to be, leaving important questions about predominance of class issues and individual proof of injury for another day.

The Court’s deferral of these questions can be chalked up, at least in part, to the nature of the case itself, in which employees at a pork processing plant in Iowa claimed they had not received overtime pay for time spent … Continue Reading

As you probably know, on Wednesday, the Supreme Court finally issued its long-awaited opinion in Campbell-Ewald Co. v. Gomez.  Tammy Adkins & Helen Arnold of McGuireWoods’s Chicago office wrote up an excellent summary, which I’m quoting below:

On January 20th, 2016, in Campbell-Ewald Co. v. Gomez, a case closely watched by both sides of the class action bar, the U.S. Supreme Court ruled in an opinion authored by Justice Ruth Bader Ginsberg that an unaccepted Rule 68 offer of judgment did not moot the Telephone Consumer Protection Act (TCPA) putative class action brought by plaintiff Jose Gomez.

Defendant

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It’s rapidly becoming conventional wisdom that Campbell-Ewald Co. v. Gomez (argued yesterday) is going to be a win for the plaintiffs.  Respected academics like Robert Klonoff have stated it, and respected reporters like Perry Cooper have quoted respected plaintiffs’ counsel like Deepak Gupta to the same effect.  But, dig a little deeper into the arguments they’re all using to justify their predictions, and it’s not quite as clear that Gomez will be decided in favor of the plaintiff.  Those arguments are:
The Court has no way to counter Justice Kagan’s dissent.  In a blunt dissent in Genesis Healthcare Continue Reading

At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real action happens. And that is why I am happy to report that this year, there were quite a few articles that did take different approaches to various problems in class actions. Yes, we still had some of the same Supreme Court rehashes, but even some … Continue Reading

2013 did not offer the blockbuster docket in front of the Supreme Court that 2011 did, but that didn’t stop the Court from issuing a number of opinions whose effects will be felt for some time to come. In addition, a number of other courts took bold steps to either support or constrain class action practice. The key trends coming out of 2013: watch out for predominance, and watch out for tricky settlement provisions. Also, pay attention to the complaint; key flaws can still lurk in there.

(1) Comcast Corp v. Behrend (Supreme Court).  This case was … Continue Reading