Wage & Hour Litigation Blog

Category Archives: Rule 23 Certification

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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


Posted in Rule 23 Certification

Co-authored by Soo Cho and Timothy Rusche

The Northern District of California in Ortiz v. CVS Caremark Corporation found class certification potholes were not hazards where policies establish rules of the road for employees driving between stores. In doing so, the court provided a roadmap for avoiding off-the-clock and reimbursement class claims.


In Ortiz, the plaintiffs sought to create … Continue Reading

The Second Circuit Orders A Double Bundle—Will Consider Impact of Comcast On Two Wage And Hour Class Actions

Posted in Rule 23 Certification, State Laws/Claims

Co-authored by Patrick Ryan and Noah Finkel

Earlier this week, the Second Circuit agreed to hear an appeal from the Southern District of New York concerning the impact of Comcast on wage and hour class actions.  The court will consider this appeal “in tandem” with Roach v. T.L. Cannon Corp.—another employment class action from the Northern District of New … Continue Reading

The Other Area 51? Court Holds 51 Job Titles, Even In Same Area, Are Too Alien From Another for Class Treatment

Posted in Misclassification/Exemptions, Rule 23 Certification

Co-authored by Nadia Bandukda and Noah Finkel

In an exempt status misclassification case involving 51 different IT job titles, a federal district judge in California has ruled that the proposed class members perform duties that are too divergent to justify ultimate collective under the FLSA or class treatment under Rule 23(b).

The company here divided employees in several “Bands” to … Continue Reading