Tag Archives: class certification

Pennsylvania District Court Concludes Ex Parte Communications between Defense Counsel and Putative Class Members Are Improper

In putative class action lawsuits, it is not uncommon for counsel for the employer to interview putative class members about the claims in the lawsuit. A new decision from the United States District Court for the Eastern District of Pennsylvania has concluded that such communications could be improper, at least in that state.

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Airline Ordered to Pay More Than $77 Million for Wage-Hour Violations

In Bernstein v. Virgin America, Inc., a district court in California has ordered Virgin America to pay more than $77,000,000 in damages, restitution, interest and penalties for a variety of violations of the California Labor Code. The award is the latest example of the tremendous amount of damages and penalties that can be awarded for non-compliance with California’s complex wage and hour laws.

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High Court Says Statistical Analysis Can Establish Classwide Liability – Employment Law This Week

The new episode of Employment Law This Week features the U.S. Supreme Court’s easing of class certification standards in a case against Tyson Foods.

In Iowa, a group of Tyson employees brought a hybrid class and collective action for unpaid overtime spent changing clothes and walking to their work area. An expert determined the average amount of time spent on those activities, and the employees relied on those averages to get class certified and prove liability and damages. On appeal, Tyson argued that the employees should never have been grouped into a single class, because each employee took different amounts of time for the unpaid activities. But the Supreme Court ruled that this representative sample could be used to establish classwide liability, and the case will move forward in the district court. 

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Supreme Court Raises Bar for Class Certification

By Stuart Gerson

Wage-hour lawsuits filed under the federal Fair Labor Standards Act (FLSA) represent one of the fastest growing and most problematic areas of litigation facing employers today, especially when such cases are brought as collective actions. A recent Supreme Court case based in class action analysis provides a potentially-useful analog for employers to stave off such collective actions.

Class action criteria are set forth in Fed. R. Civ. P. 23, and they allow for one or more individual named plaintiffs to sue on behalf of a large – sometimes very large – group of unnamed employees, where: 1) the number of putative class members is so large that it would be impractical for them to participate; 2) where the putative class claims are defined by common questions of law or fact; 3) where the representative plaintiffs’ claims or defenses are typical of those of everyone else; and 4) where the named plaintiffs will fairly and adequately represent the interests of the rest of the putative class. 

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Actual Duties Define Exempt Status of Managerial Retail Employees and Precludes Class Certification

By: Marisa S. Ratinoff

Exempt or non-exempt: That is the question. One of the most difficult areas in wage and hour law for retailers is properly classifying their managerial employees for purposes of determining if overtime need be paid or meal and rest breaks provided. Long has been the rule that the actual duties the employee performs will determine if he or she is misclassified. While this is often frustrating to retailers, whose assessment of an individual’s job duties may be a judgment call as to whether they meet or do not meet the specific requirements of an exemption, the fact that an individual analysis is required may prevent class certification.

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FLSA Claims Are Becoming More Difficult to Settle Prior to Class Certification

Arnstein & Lehr attorney E. Jason Tremblay

E. Jason Tremblay

On August 4, 2011, we reported on the case of Dionne v. Floormasters Enters, a case from the Eleventh Circuit Court of Appeals that effectively allowed an employer to avoid paying attorneys’ fees in an FLSA lawsuit and also allowed the dismissal of an FLSA lawsuit prior to class certification where an offer of judgment made by the employer made the plaintiff-employee “whole.” However, since then, several other circuits, namely the Third and Ninth Circuit Courts of Appeal, have published contrary decisions holding that an offer of judgment made by an employer to a plaintiff-employee in an FLSA case will not moot the case where the court has not yet ruled on class certification.

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