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Category Archives: Rule 23 Certification

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Unreliable Survey Dooms IBM Workers’ Bid for Class Certification

Posted in Misclassification/Exemptions, Overtime, Rule 23 Certification

Co-authored by Steve Shardonofsky and Rebecca DeGroff

Last week, in Sirko v. IBM, a federal district court in California rejected the plaintiffs’ efforts to use a rudimentary survey to establish Rule 23 class certification because the survey — designed and administered by plaintiffs’ counsel — “lack[ed] basic indicators of reliability.”  The case is yet another example of the trend … Continue Reading

Uniform Break Policies Are Not Uniformly Suited for Class Treatment

Posted in Meal/Rest Breaks, Rule 23 Certification

Authored by Michael W. Kopp

Ordonez v. RadioShack, Part II is the end-of-summer sequel you do not want to miss. It features our protagonist, the “uniform rest break policy,” a sinister cast of declarations of similar treatment, a harrowing finding of unlawfulness, a dramatic second run by plaintiff at class certification, and the court’s emphatic second opinion denying plaintiff’s certification Continue Reading

NO “DEAL” ON SALES REPS’ CLASS CERTIFICATION BID AGAINST GROUPON, BUT THEY ARE INVITED TO TAKE A SECOND BITE AT THE APPLE

Posted in Rule 23 Certification, State Laws/Claims

Co-authored by Timothy F. Haley and Arthur J. Rooney

A federal court in Chicago recently denied class and collective action certification in a wage-hour case brought by sales representatives for Groupon.  But the court did so without prejudice to allow plaintiffs to take a second bite at the apple — albeit, a smaller apple.  The court’s decision denying plaintiffs’ motion … Continue Reading

One of These Things Is Not Like the Others: Some Class Representatives Just Don’t Belong

Posted in Rule 23 Certification

Authored by Brian P. Long

A seemingly never ending wave of call center class actions has been leveled against employers in recent years.  The hallmark of these suits invariably includes allegations of purportedly homogenous “drones” working off-the-clock when they are not helping customers.  Companies are left with few options other than shout into the wind that their policies prohibit such … Continue Reading

Double Fail!! Fail-Safe Class Fails To Gain Class Certification

Posted in Rule 23 Certification

By Kevin A. Fritz and Jennifer A. Riley

Merits-based (a/k/a “fail-safe”) classes have a long-settled reputation of being one of the best examples of the worst defined class.  Fail-safe classes are those defined in terms of the merits (e.g., all who were victims of defendant’s wrongdoing).  These classes are problematic because the class size varies depending on the verdict.  A … Continue Reading

When Is A Footnote Not Just A Footnote? When It Helps Level The Playing Field For Employers in Class- And Collective-Action Certification Battles…

Posted in Rule 23 Certification

Co-authored by Steve Shardonofsky and Maya Harel

In opposing class- or collective-action certification, employers often submit declarations from current employees stating that they have been paid properly and have not been subject to whatever unlawful policy or practice is at issue.  There is an increasing trend in courts across the country to reject these type of declarations on the basis … Continue Reading

Let’s Play Two: California Supreme Court Hears Oral Argument in Two Important Class Action Cases

Posted in Arbitration Agreements, Independent Contractors, Rule 23 Certification

Authored by Jim Harris

The California Supreme Court heard oral argument in two important cases involving employment-related class actions.  From the tenor of and comments made at the argument, it appears likely that the ultimate results will be a mixed bag for employers.

The first case, Iskanian v. CLS Transportation of Los Angeles, LLC, which we reported on late last … Continue Reading

Lowe’s Raises the Bar on Class Certification

Posted in Independent Contractors, Rule 23 Certification

Authored by Jessica Schauer Lieberman

This week, the U.S. District Court for the District of Massachusetts took retailer Lowe’s advice to “never stop improving” — on the class certification standard.  The court issued a decision that may demonstrate that employers are gaining ground in convincing district courts to more narrowly interpret the class certification requirements in light of recent Supreme … Continue Reading

Ma (Labs) Knows Best—California Court Uses Comcast To Reject Certification Of An Off-The-Clock Claim

Posted in Conditional Certification, Hybrid Lawsuits, Rule 23 Certification

Co-authored by Coby M. Turner and Laura J. Maechtlen

California is bringing Comcast home—last week, California employers were the beneficiary of some down-home wisdom coming out of San Francisco. 

Giving some sage advice to the wage and hour community, Judge Alsup in Lou et. al. v. Ma Laboratories, Inc., denied conditional and class certification to a broad class of … Continue Reading

Donning Your Kerchief and Doffing Your Cap: 2013 Year in Review

Posted in Arbitration Agreements, Damages, Off-the-Clock Issues, Offer of Judgment, Overtime, Rule 23 Certification, State Laws/Claims

Authored by Alex Passantino

It’s the week before Christmas, so you know it’s the time
For our review of the year—our wage-hour rhyme.
Our look-back on issues from the past 52 weeks
That grabbed the attention of you wage-hour geeks.

Leading us off is no big surprise:
FLSA filings continue to rise.
A 10% bump; they’re not going away,
Continue Reading