Showing 10 posts in Current Developments / Legislation.
Thank you to all who joined us for our Data Privacy Rx Conference on May 26, 2015. Clearly data privacy and cyber security are among the top issues organizations face today. Read More ›
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 ›
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 ›
Last week, the Northern District of California denied a motion to decertify and granted a motion to bifurcate, allowing a case brought against Washington Mutual Bank, FA (“WMB”) and eAppraiseIT (“EA”) to proceed to trial as a class action on liability alone, with questions of individual damages and eligibility bifurcated from the trial for later review on a claim-by-claim basis. Spears v. First American eAppraiseIT, 5-08-CV-00868-RMW, 2014 WL 4647679 (N.D. Cal. Sept. 16, 2014). Read More ›
This blog recently addressed Iskanian v. CLS Transportation Los Angeles, LLC, 173 Cal. Rptr.3d 289 (Cal. 2014), in an entry analyzing the enforceability of employees’ class action waivers: Click here to view previous entry. This entry examines one aspect of Iskanian in greater depth, namely whether a waiver applies to claims under the California Private Attorney General Act (PAGA). 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 ›
Halliburton Co. V. Erica P. John, Fund, Inc: Supreme Court Continues Its Trend of Allowing Greater Scrutiny in the Class Certification Stage
In Halliburton Co. v. Erica P. John Fund, Inc. – one of this term’s most anticipated securities law cases – the Supreme Court unanimously held that defendants may attempt to defeat class certification of a securities class action by introducing evidence that alleged misstatements had no impact on stock prices. Although the Court declined to overrule its prior decision in Basic Inc. v. Levinson, it follows the Court’s more recent decisions like Wal-Mart v. Dukes and Amgen Inc. v. Connecticut Retirement Plans and Trust Fund by requiring more scrutiny at class certification stage and making it more difficult for securities plaintiffs to achieve class certification. Read More ›
Supreme Court To Decide Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc. et al.
The number of securities class actions filed each year appears to be on the rise, as 234 securities class actions were filed in 2013, as compared to 213 in 2012. An unintended consequence of an ill-advised or over-reaching securities class action, however, may be the extinguishment of putative plaintiffs’ claims—an issue the Supreme Court of the United States has agreed to address. The Second Circuit held in Police and Fire Retirement System of Detroit, et. al, v. IndyMac MBS, Inc, et al., 721 F.3d 95 (2013) that when a suit is inappropriate for class action status, the members of the putative plaintiff class are potentially time bared from litigating their claims under § 13 of the Securities Act, 15 U.S.C. § 77m. That holding is not without controversy within the circuits. The Tenth Circuit, for example, held that the American Pipe rule applies to § 13’s three-year period, and thus the commencement of the original class action tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status. See Joseph v. Wiles, 223 F.3d 1155 (10th Cir. 2000). Continuing its recent willingness to lend an ear to class action disputes, the Supreme Court has agreed to hear oral argument over whether or not the filing of a putative class action satisfies the three-year time limitation in § 13 of the Securities Act. See Public Employees’ Retirement System of Mississippi v. IndyMac MBS, Inc., et al., 134 S. Ct. 1515 (2014). Read More ›
“Rigorous Scrutiny” of Class Reps: Texas District Court Analyzes Dukes’ and Comcast’s Impact on Adequacy of Representation Requirement.
The U.S. Supreme Court’s recent opinions in Wal-Mart Stores, Inc. v Dukes and Comcast Corp. v. Behrend are most commonly recognized for their impact in raising the evidentiary bar for putative class action plaintiffs to establish the existence of classwide “common issues” under Federal Rule 23(a)(2) and the “predominance” of those issues over individual ones under Rule 23(b)(3). However, a recent Texas District Court opinion, In Re Kosmos Energy Ltd. Securities Litigation, --- F.R. – 2014 WL 1293834 (N.D. Tex. Mar. 19, 2014), suggests these decisions may also raise the bar for plaintiffs to satisfy Rule 23(a)(4)’s adequacy-of-representation requirement. While the opinion is partially based on principles unique to securities laws – specifically rules derived from the Private Securities Litigation Reform Act (“PLSRA”), the court’s analysis strongly suggests that Dukes and Comcast require stricter scrutiny of named plaintiffs’ adequacy as class representatives in all class action cases. The Kosmos Energy opinion is also significant in that it places Dukes and Comcast in context of what it believes to be a broader movement to turn away from the class action mechanism generally. Read More ›
On April 7, 2014 the Supreme Court of the United States granted certiorari to a case that should have a great impact on the pleading requirements within a notice of removal under the Class Action Fairness Act (CAFA), and perhaps to removal more generally. The case addresses the necessary evidence required to be plead in a notice of removal in order to establish federal jurisdiction under CAFA. Read More ›
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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.