Epic Systems expanded Concepcion, concluding that federal labor law does not block arbitration class waivers, rendering them permissible in the employment context, too. Justice Ruth Bader Ginsburg noted that this additional barrier will lead to the under-enforcement of employment law stemming from this restriction on collective power, as has already happened in the consumer context.
Sworn statements explained how women at Microsoft are undervalued in comparison to men, are denied opportunities that men receive, are left out of important meetings, and work in a sexualized environment in which male employees stare at women’s breasts, grope them, and comment on their bodies and clothes. One woman explained the pressure that she and other women feel to “hit the sweet spot between being perceived as ‘too timid’ or ‘overly passionate’ and ‘too harsh’ in Microsoft’s male-dominated culture.” Her male manager lowered performance ratings for her and the team of women she supervised because he believed they did not “smile enough.”
The Court’s decision, in our opinion, is a grave departure from the goals of efficiency and economy inherent to class actions. Requiring plaintiffs to preemptively file multiple actions unnecessarily burdens the judiciary and clogs the system with duplicative cases. The Court’s decision also is at odds with what we regard as the reality of modern class actions in that many do not have a final decision on class certification within two or four years, for reasons outside the named plaintiff’s control. Necessary discovery, taxed courts, appeals, and recalcitrant defendants all slow the process and often prevent the parties from obtaining a final ruling on class certification within the first few years. In addition, orders denying class certification may identify remediable issues that can be addressed only by filing a new action. This week’s ruling prohibits plaintiffs who initially timely filed their case from filing those new actions if the court’s class certification order arrives outside the original statute of limitations.
Employers have consistently taken the position that challenges to employment processes that involve some element of subjectivity – and most do – cannot be brought on a class basis after Dukes. According to the logic of this argument, only non-discretionary evaluation measures, such as standardized tests or physical fitness tests, will satisfy commonality under Rule 23(a). Fortunately, a recent opinion from the Southern District of New York joins the growing list of decisions rejecting this extreme position.
The Ninth Circuit recently ruled that evidence offered in support of class certification need not meet standards for admissibility at trial. In a published opinion, Sali v. Corona Regional Medical Center, No 15-56460 (9th Cir. May 3, 2018), the panel reversed and remanded the district court’s determination that plaintiffs failed to satisfy typicality, adequacy, and predominance.
The Supreme Court docket this past term had class action practitioners holding their breath. Over the last five years, the Court has limited access to class actions in cases including Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, and American Express Co. v. Italian Colors Restaurant. This term, the Court took on an unprecedented four class action cases. The outcome is fascinating and has many ramifications for the ability of class actions to serve as a vehicle for groups of people—including workers, minorities, and consumers—to hold corporations and the government accountable.