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 (“NLRA”). Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act (“FLSA”), 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.
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.