As leading experts in the field of employment discrimination, The Impact Fund publishes articles that provide practical and strategic guidance on a broad range of issues ranging from funding for legal services to gaining court approval of class representative incentive awards.

ARTICLES

Fluid Recovery and Cy Pres: A Funding Source for Legal Services - (Updated 2008)
By Brad Seligman and Jocelyn Larkin
With cutbacks and restrictions in federal legal services funding a reality, the search for new funding sources for legal services and public interest law becomes even more imperative. One potential funding source has been largely underutilized: class actions. Through a seldom-used device known as fluid recovery or cy pres , grants or distribution of unclaimed class action settlement funds may provide a source of funding for public interest and legal services organizations whose work can be said to further the interests of the class.

Confidentiality Orders in Civil Litigation and Class Actions: Why Courts Find that Secrecy Is Not in the Public Interest – (2007)
By Julia Campins
Confidentiality Orders pose challenges to plaintiffs lawyers in civil litigation and class actions.  In recent years, courts have demonstrated increasing hostility to blanket confidentiality orders, which do not require an independent assessment of the need for each document presented to remains confidential.  This article examines the recent developments in the case law and explains why plaintiffs should avoid agreeing to confidentiality orders.

A Comparison of California Class Actions and Federal Class Actions - (Updated 2007)
By Sarah Varela and Julia Campins
From the cost of notice to proving class certification to the right of appeal, this outline summarizes the principle differences between class action law under California law and Federal law.  This outline will provide practitioners with a road map of class action law under both California and Federal law and will help plaintiffs' lawyers to think strategically about where to file a class action.

Expert Disputes in EEO Class Actions:  What's Daubert Got to Do With It? – (2006)
By Jocelyn Larkin
The Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals clarified the role of district courts in determining the threshold admissibility of expert testimony at trial.  Though the expert battles typically fought in EEO cases do not raise the kinds of issues that Daubert is intended to address, employers are increasingly filing Daubert motions to exclude expert testimony in EEO class actions, particularly at the class certification stage.   Different district courts have responded to these motions in different ways and their approach often determines whether or not the class will be certified.  Through an analysis of recent case law, the author urges the Courts of Appeal to provide greater guidance to district courts on this question in order to avoid wasteful evidentiary motions and to minimize the risk of inconsistent and unpredictable results.

Commentary on the New Class Action Fairness Act - (2005)
By Jocelyn Larkin
Enacted February, 18, 2005, the Class Action Fairness Act did little to bring fairness to class members but did create a host of new procedural advantages for corporate defendants.  This articles analyzes key aspects of the new Act, from retroactivity to a broad expansion of original diversity jurisdiction and removal jurisdiction, with a special focus on its effect on employment class actions.  Originally published in State Bar Labor and Employment Newsletter (2005).

Challenging Subjective Criteria in Employment Class Actions - (2005)
By Jocelyn Larkin and Christine E. Webber
The Supreme Court long ago identified the use of subjective personnel practices as one mechanism through which discrimination could be perpetrated.  This articles explores the relationship between subjective criteria and discrimination, criticisms of the use of the “excessive subjective criteria” theory, policy arguments for the theory, and key case law.

Ten Reasons Why Discrimination Class Actions Do or Do Not Get Certified - (2005)
By Jocelyn Larkin and Fred Alvarez
District Court judges have broad discretion in determining class certification in employment discrimination class actions.  This article outlines ten factors that play a recurring role in class certification opinions.  The article provides plaintiffs with important tips for framing discovery and the class certification motion and at the same time provides defendants with a guide for assessing risks and acting pro-actively to weight the factual record against certification.

Incentive Awards to Class Representatives - (2005)
by Jocelyn Larkin
This article summarizes the principal factors courts take into consideration when determining the fairness of incentive awards to class representatives. Through an analysis of the most recent case authority, the author suggests strategies for obtaining approval of incentive awards thus ensuring that these awards do not interfere with approval of class action settlements.

Fluid Recovery and Cy Pres: A Funding Source for Legal Services - (2005)
by Brad Seligman and Jocelyn Larkin
With cutbacks and restrictions in federal legal services funding a reality, the search for new funding sources for legal services and public interest law becomes even more imperative. This newly updated article examines the case law and provides practical tips for using fluid recovery or cy pres - grants or distribution of unclaimed class action settlement funds which may provide a source of funding for public interest and legal service organizations whose work can be said to further the interest of the class.

From Duke Power to Wal-Mart: Title VII Class Actions Then and Now (Updated 2007)
by Brad Seligman
From the passage of the first employment discrimination statute, Title VII of the Civil Rights Act of 1964, to the Wal-Mart case this year, this article explores the rich history of Title VII class action lawsuits. Included in this article are lessons learned from the successful certification of the largest class in history, Wal-Mart, and an analysis of the state of class action practice today. This article is in Civil Rights Litigation and Attorney Fees Handbook (West, 2004).

Title VII Class Action and Punitive Damages: A Guide to Class Certification and Trial
by Jocelyn Larkin
The 1991 Civil Rights Act amended Title VII to expand the remedies available to victims of discrimination, specifically adding a right to compensatory and punitive damages, subject to a statutory cap. While the new remedies were hailed as a victory for civil rights plaintiffs, the availability of legal damages raised a host of unanticipated questions for Title VII class actions. This article addresses how to certify and try punitive damages claims in a Title VII class action.

Rule 23 Revisions: Ten Tips for Plaintiffs' Lawyers
by Jocelyn Larkin and Pamela Coukos (revised February 2004)
This article provides practical tips for approaching class action litigation in the wake of significant revisions to Fed. R. Civ. Proc. 23. The rule changes, which took effect December 1, 2003, govern class certification procedures, notice, settlement, and the appointment and compensation of class counsel. From educating the judge early and often to thoroughly documenting the settlement process, these tips will help plaintiffs' lawyers think strategically about how to work with these new requirements in order to better advocate for their clients.