Jocelyn D. Larkin
On April 4, the U.S. Supreme Court denied cert in Wal-Mart Stores v. Braun, a wage and hour class action brought on behalf of 187,000 hourly Wal-Mart workers in Pennsylvania. The case was tried in the Pennsylvania state court in 2006, and Michael Donovan and his team obtained a $188 million verdict for the workers.
The heart of the appellate dispute was Wal-Mart’s decision to stop keeping records of wage and hour violations. Plaintiffs relied on the Anderson v. Mt. Clemens Pottery doctrine permitting “just and reasonable inferences” to calculate the damages in the absence of those records. Wal-Mart argued in the Pennsylvania Supreme Court and again to the U.S. Supreme Court that this method for determining damages was impermissible “trial by formula,” Justice Scalia’s catchphrase from Wal-Mart Stores v. Dukes.
We filed an amicus brief in Braun asking the Pennsylvania court to reaffirm the crucial and proper role of aggregate proof in class action trials. The plaintiffs proved their damages through sampling, extrapolation, and representative testimony because the defendants had not kept appropriate records. We discussed the enormous body of law approving the use of aggregate proof in many substantive contexts, refuting the defendant’s claim of a due process right to individualized proof. We also pointed that the phrase “Trial By Formula” in Dukes was dicta discussing an evidentiary methodology used in the Ninth Circuit’s decision In re Estate of Marcos, a class action dealing with the victims of torture under the former dictator, not anything proposed to be used by the Dukes plaintiffs.
Today’s outcome was not surprising given the decision two weeks ago in Tyson Foods v. Bouaphakeo. The Court’s decision not to hear the case is a major win for workers, who will receive justice after fourteen years in court.
Last month we launched NoticeAssist, the first-of-its-kind, free software tool to help practitioners draft clear and effective class notices. In a moment, I’ll tell you what it can do for you. But, some of you may be wondering - why software and why now?
In 2020, a panel of the Eleventh Circuit Court of Appeals stunned the class action bar when it ruled in Johnson v. NPAS Solutions., LLC, 975 F.3d 1244 (11th Cir. 2020), that service awards for class representatives are categorically unlawful. Service awards are financial payments to class representatives that have long been used to acknowledge their service to the class. In April of 2024, the Seventh Circuit split with the Eleventh Circuit when it allowed service awards.
In June, Impact Fund filed an amicus brief on behalf of thirty-six other public interest law organizations in San Diego Tenant Union et al. v. San Diego Housing Commission et al., in the California Court of Appeal. Our brief asked the Court to affirm the availability of catalyst fees to plaintiffs' counsel in successful public interest lawsuits because nonprofit legal services organizations rely upon the fee-shifting provisions of catalyst fees to undertake important litigation. “Catalyst fees” are a legal mechanism by which defendants pay plaintiffs attorneys’ fees when plaintiffs’ lawsuit induces defendants to provide the relief sought by plaintiffs—in other words, when plaintiffs’ lawsuit “catalyzes” defendants’ change in conduct.
If you’ve ever ridden in an Uber, you’ve ‘agreed’ to their non-negotiable terms of use. One of those terms, called the Non-Consolidation Clause, waives your right to participate in “consolidated proceedings,” group proceedings like class action lawsuits and multi-district litigation. Basically, Uber is requiring all customers to bring cases individually, regardless of what the case is about or what kind of proceeding it is. If successful, this new corporate mechanism has the potential to overload our already taxed courts.
Together with Lambda Legal and Walt Auvil of the Employment Law Center in West Virginia, my firm Nichols Kaster filed suit against West Virginia Medicaid on behalf our clients Christopher Fain and Shauntae Anderson. In that case, Fain v. Crouch, we challenged the state Medicaid program’s categorical exclusion of gender affirming surgical care under the Equal Protection Clause, the Affordable Care Act, and the Medicaid Act.
Shortly after Plaintiffs initiated the lawsuit, the USDA implemented a key accounting policy change that was requested in the class action complaint. The new policy provides protection for SNAP recipients by ensuring that benefits continue for one month after a lapse in federal appropriations. However, while this ensured SNAP benefits were not suddenly interrupted, because Congress continued to pass only short-term budget resolutions, class members faced ongoing uncertainty whether their benefits would be allocated on a longer-term basis. Plaintiffs reported trying to conserve their SNAP benefits by rationing funds, distracting themselves from hunger with water and sleep, and choosing between food and other basic necessities such as gas, hotel rooms for homeless plaintiffs and vital medications.
Starting today, litigators can access free, easy-to-use class notice templates designed to seamlessly facilitate the creation of notices that are engaging and understandable for class members.
In January 2024, the district court granted preliminary approval of three groundbreaking settlements to resolve the remainder of the Lucas R. case. These settlement agreements will provide new resources and protections by expanding the rights of three classes of youth in immigration custody: (1) youth with disabilities, (2) youth prescribed psychotropic medication, and (3) youth who seek assistance for legal counsel. The settlements not only represent much-needed reform, they also highlight the power youth hold when they share their stories and use their experiences to hold accountable those in power.
Female athletes at Campbell alleged widespread and systemic sex discrimination. Female athletes frequently had to use bathrooms in a nearby Burger King or hide underneath bleachers to change for practice. The girl’s water polo team would often have to practice in the ocean, facing winds and waves. Meanwhile, male athletes had access to their own locker room and appropriate athletic facilities. Moreover, when Campell’s female athletes reported disparate treatment to the school, they faced retaliation and threats to cancel the girls water polo season. Plaintiffs sought injunctive relief under Title IX. They alleged the Hawaii Department of Education and the Oahu Interscholastic Association failed to provide female athletes with equal athletic participation opportunities and equal athletic treatment and benefits. Plaintiffs also alleged the Department of Education retaliated against the class when student athletes reported gender discrimination.
Everyone who has negotiated a class action settlement has probably had some term he or she forgot to address at mediation, or in the MOU, that returned in drafting the “final” agreement as a big headache and put the deal at risk. I have. I have thought, at many class action mediations, “I wish I had a checklist so I would remember all the key terms.” Here it is...