The Supreme Court recently approved substantial changes to the Federal Rules of Civil Procedure, including amendments to Rule 23, which covers federal class actions.  The amendments to Rule 23 seek to modernize and standardize the notice, settlement, objection, and appeal procedures.  If Congress approves the amendments, they will become effective December 1, 2018.      Continue Reading Proposed Changes to Class Action Rules Covering Notice, Settlements, Objections, and Appeals Awaiting Approval of Congress

In China Agritech, Inc. v. Resh, the U.S. Supreme Court held that putative class members cannot rely on equitable tolling to file new class actions under Rule 23 of the Federal Rules of Civil Procedure.

Resh was the third shareholder class action suit filed against China Agritech, Inc. under the Securities Exchange Act of 1934. The plaintiffs in the two previous suits settled their claims after the court denied their motions for class certification.

Continue Reading SCOTUS Holds That Putative Class Members Cannot Use Equitable Tolling To File Successive Class Actions

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (June 17, 2017), the U.S. Supreme Court established limitations on personal jurisdiction over non-resident defendants in “mass actions,” a litigation strategy often utilized by plaintiffs’ class action attorneys to sue corporations in plaintiff-friendly jurisdictions that have little to no connection with the underlying dispute.  The Supreme Court determined that the requisite connection between the corporate defendant and the litigation forum must be based on more than a combination of the company’s connections with the state and the similarity of the claims of the resident plaintiffs and the non-resident claimants.  The ruling directed the dismissal of 592 non-California claims from 33 other states.  As a result, the ruling supports the view that plaintiffs cannot simply “forum shop” in large class and collective actions and instead must sue where the corporate defendant has significant contacts for purposes of general jurisdiction or limit the class definition to residents of the state where the lawsuit is filed.

Continue Reading A New Tool For Preventing Forum Shopping in FLSA Collective Actions

The practice of “tip-pooling,” which refers to the sharing of tips between “front-of-house” staff (servers, waiters, bartenders) and “back-of-house” staff (chefs and dishwashers), has been in the news recently as the Trump Department of Labor (“DOL”) seeks to roll back a 2011 Obama-era rule limiting the practice under the Fair Labor Standards Act (“FLSA”).

Continue Reading DOL Expresses Interest in Banning “Tip-Skimming”

On January 8, 2018, the United States Supreme Court denied a petition for certiorari seeking to overturn the Fourth Circuit’s new joint employer test under the Fair Labor Standards Act.  As a result, employers will continue to be faced with differing joint employer standards in the various federal circuits.

Continue Reading Supreme Court Leaves Fourth Circuit’s New FLSA Joint Employer Standard Untouched

On October 5, 2017, Attorney General Jeff Sessions released a formal letter on behalf of the United States Department of Justice stating the DOJ’s official position that Title VII “does not prohibit discrimination based on gender identity per se, including transgender status,” officially retracting the DOJ’s previous position under the Obama Administration and setting up a direct conflict with the EEOC’s current position on the scope of Title VII.

Continue Reading The DOJ’s About-Face on Gender Identity Discrimination under Title VII

On September 15, the White House announced that President Trump will nominate Peter B. Robb, a longtime labor and employment attorney, to become the National Labor Relation Board’s next general counsel.  Assuming Robb is confirmed by the Senate, he would likely take over his position  hopefully in early November following the end of the incumbent’s General Counsel’s term and Robb’s swearing in.

Continue Reading Trump Taps Management-Side Lawyer to Serve as NLRB General Counsel

On August 3, 2017, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission attorney, to fill one of the two vacant seats on the National Labor Relations Board.  Kaplan’s confirmation moves the Board one step closer to a Republican majority.  Kaplan was confirmed on a 50-48 party-line vote by the Republican-controlled Senate.  Kaplan joins NLRB Board Chairman Philip Miscimarra on the Republican side of the NLRB.  Mark Gaston Pearce and Lauren McFerran are the Democrat Board members.

Continue Reading U.S. Senate Confirms Marvin Kaplan to Serve on the National Labor Relations Board