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In Harris et. al. v. Medical Transportation Management, Inc. et. al., the D.C. Circuit Court of Appeals held that a putative class cannot be certified as an “issue” class under Rule 23(c)(4) without also satisfying the requirements in Rule 23(a) and (b). This ruling is important because it prohibits putative classes from using the “issue” class mechanism of Rule 23(c)(4) to skirt the important procedural requirements in Rule 23(a) and (b) that are meant to protect both the litigants and absent parties. The court also encouraged the use of the partial summary judgment mechanism, rather than Rule 23(c)(4), to resolve discrete legal issues common to many class members. …
Continue Reading D.C. Circuit Requires Compliance with Rules 23(a) and (b) to Certify Rule 23(c)(4) “Issue” Class Actions

The Seventh Circuit Court of Appeals recently decertified a class of female correctional facility employees who alleged gender discrimination based, in part, on a theory of “ambient” harassment.  The opinion underscores how the individualized nature of harassment claims can act as a barrier to class certification.
Continue Reading Seventh Circuit Decertifies Ambient Sexual Harassment Class of Plaintiffs

In Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., the U.S. Supreme Court established limitations on personal jurisdiction over non-resident defendants in “mass actions,” effectively supporting 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.  Notably, the Supreme Court’s decision was limited to personal jurisdiction issues in state courts, which has led to a split on the question of whether, and to what extent, the Supreme Court’s analysis applies to class and collective actions pending in federal court. …
Continue Reading District Courts Are Divided On Whether Bristol-Myers Extends to the Federal Class Action Context

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act.  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act, at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.
Continue Reading Supreme Court’s Decision Upholding Arbitration Agreements Applies to Independent Contractors Too

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

When a party receives an adverse order on a motion for class certification, whether the court of appeals grants permission to appeal under Rule 23(f) can be a crucial turning point in the case.  If the appellate court will not hear this interlocutory appeal, the only way to obtain review of that decision is to take the case through trial, to a final judgment.  But, due to the high stakes and large costs involved, few class actions are tried and cases often settle after the class certification order is issued by the trial court. …
Continue Reading Appellate Court Provides Valuable Guidance for Interlocutory Appeals of Class Certification Orders Under Rule 23(f)