Class Counsel Blog

Showing 5 posts in Discrimination.

Supreme Court Denies Review of Killion v. KeHE Distributors, Leaving The Sixth Circuit Alone In Refusing to Enforce FLSA Collective Action Waivers

On April 6, 2015, the United States Supreme Court declined to review the Sixth Circuit’s opinion in Killion et al. v. KeHE Distributors, LLC, 761 F.3d 574 (6th Cir. 2014), in which the Sixth Circuit refused to enforce Fair Labor Standards Act (FLSA) collective action waivers.  Distinguishing itself from every other Circuit that has addressed FLSA collective action waivers, the Sixth Circuit held that employees may only agree to waive their right to participate in a collective-action so long as they retain the right to individually arbitrate their FLSA claims.  Read More ›

Recent DOL and EEOC Class Based Actions At A Glance

Recently, the Department of Labor’s Wage and Hour Division (“WHD”) announced that it had recovered more than $240 million dollars in back wages for more than 270,000 workers in 2014.  Although this amount is slightly down from 2013’s $249 million recovery; since 2009 the WHD has recovered more than $1.3 billion in back wages for 1.5 million workers.  The WHD attributes much of this success to its strategic enforcement initiatives that have targeted specific types of working relationships and industries.   Read More ›

Plaintiffs beware: Courts may tax costs upon non-prevailing plaintiffs in FLSA collective actions

In Fair Labor Standards Act (“FLSA”) collective actions it is not uncommon for plaintiffs to file motions for conditional certification of an opt-in class early in the litigation, many times with the Complaint.  Courts frequently grant such motions and order class notice to issue before discovery has taken place.  Defendants usually seek to include language in the notice that informs potential opt-in plaintiffs that if they lose they may be liable for the defendant’s costs (not including attorney’s fees).  The Western District of Pennsylvania gave defendants some additional ammunition in negotiating these notices, by awarding the prevailing defendants over $60,000 in costs.  Read More ›

The Ninth Circuit and the California Supreme Court May Have Finally Put the Nail in the Coffin of the NLRB’s D.R. Horton Decision

On June 23, 2014, the Ninth Circuit Court of Appeals and the California Supreme Court issued three decisions upholding the enforceability of class action waiver provisions in arbitration agreements.  These decisions deal yet another blow to the National Labor Relations Board’s (“NLRB”) decision in D.R. Horton, Inc. 357 N.L.R.B. No. 184 (2012).  Considering the Ninth Circuit’s and California’s history of issuing relatively pro-employee decisions, these decisions could put the final nail in the coffin of the NLRB’s D.R. Horton line ofdecisions - at least with respect to litigation in federal courts.  Read More ›

The Employment Class and Collective Action Landscape After Wal-Mart v. Dukes

The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has been hailed as one of the most significant class action decisions in years.  The case significantly strengthened the requirements for lawsuits to proceed as class actions under Federal Rule of Civil Procedure 23.  Almost three years after the Supreme Court issued its opinion, courts and litigators are still grappling with the implications of the case, particularly in employment class and collective actions.  Nevertheless, some clear patterns have emerged in the lower courts. When interpreting the commonality requirement in Rule 23 class actions, lower courts have paid particular attention to the size of the class and the degree the action involves common or companywide policies with limited individual discretion, whether the allegedly discriminatory policy is determined by many lower level managers or uniformly enacted by upper level executives.  Additionally, courts have often found Dukes inapplicable in Fair Labor Standards Act (“FLSA”) collective actions, but have applied Dukes to hybrid class and collective actions. Read More ›

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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.