PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
Mini-Conference Ponders Class Action Rule
For the past year, a subcommittee of the Advisory Committee on Civil Rules has criss-crossed the country, collecting comments from practitioners on possible amendments to Rule 23, the federal class action procedure. The latest stop on their listening tour — a “mini-conference” in Dallas on September 11 – brought together a small group of judges, academics and lawyers with very diverse perspectives on class actions. The lawyers came from a range of substantive practice areas and included some who serve primarily as objectors to class settlements.
To set the stage, the Reporter for the subcommittee, Professor Richard Marcus, prepared a series of “sketches” – very preliminary rule language that served as a springboard for conversation.
Second Circuit Sides with EEOC on Review of Its Investigation of Massive Gender Discrimination Case
When the Supreme Court issued its ruling last spring in Mach Mining v. EEOC, 135 S. Ct. 1645 (2015), employer representatives gleefully claimed victory for the strategy of defeating cases on the grounds that the EEOC did not properly conciliate before filing the lawsuit.
The Second Circuit’s decision today in EEOC v. Sterling Jewelers, No. 14-1782 (2d Cir. Sept. 9, 2015) suggests that the victory dance may have been premature. The court reversed the district court’s order granting summary judgment for the agency’s alleged failure to conduct a sufficient investigation before filing suit. Relying on Mach Mining, the panel held that the district court may only consider whether the EEOC investigated, not whether the investigation was sufficient.
SPOKEO V. ROBINS: THE CASE FOR KEEPING CORPORATE AMERICA ACCOUNTABLE
As Judge Posner famously put it, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” In a nutshell, that’s what is at stake next term when the Supreme Court decides Spokeo v. Robins.
The plaintiff in Spokeo sued under the Fair Credit Reporting Act, alleging that Spokeo’s website contained false information about him. Spokeo is a self-described “people search engine” that organizes White Pages listings, public records, and social network information. Spokeo argued that the plaintiff lacked standing to sue because he did not suffer “actual harm” from the company’s conduct; his only claim of harm was that his statutory rights were violated. The Ninth Circuit disagreed, and held that where a statutory cause of action does not require proof of damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages.
Tyson Foods, Inc. v. Bouaphakeo – Fighting for the Rights of Low-Wage Workers
ge theft is a huge problem.
In 2014 alone, the U.S. Department of Labor recovered over $240 million in unpaid wages for over 270,000 workers. Not surprisingly, the lowest paid workers are often the most vulnerable. Many low-wage workers are not fully informed about their rights, or fear retaliation if they speak up. And those who want to take legal action have a hard time securing counsel due to the low value of their claims. Recordkeeping violations by employers make things even worse; a lack of legally-required documentation can make proving violations difficult, if not impossible.
Campbell-Ewald Co. v. Gomez – New Classic or the End of a Trend?
As a third-grader growing up in the suburbs of Minneapolis, Minnesota, I wouldn’t even think of leaving the house without pulling on my most fashionable pair of pants: Zubaz. They were so cool. Tiger print? Check. Cozy sweatpants material? Check. Available in the color scheme of my favorite pro football team? Of course. Everyone was wearing them. Everyone.
Thankfully, fashion trends come and go. The same can be said for class action defense strategies. Every so often, the defense bar comes up with a new plan to stop class actions in their tracks.
Seventh Circuit Win For African-American Teachers
More favorable class action news to report from the Seventh Circuit. In an opinion by Judge Rovner, the Seventh Circuit reversed the denial of class certification for a class of African-American teachers alleging race discrimination arising from the Chicago School Board’s closure of 10 schools as part of its “turnaround” program. Chicago Teachers Union et al. v. Board of Educ. of the City of Chicago, 2015 WL 4667904 (7th Cir. Aug. 7, 2015). The decision interprets Wal-Mart Stores v. Dukes to permit a challenge to a multi-step process, which includes both objective and subjective phases.
Fifth Circuit Decides It Won’t “Try This At Home” Either
In a published opinion released yesterday, the Fifth Circuit ruled that an unaccepted offer of judgment to a named plaintiff moots neither the individual’s claim nor the putative class claims. Hooks v. Landmark Industries, No. 14-20496 (5th Cir. August 12, 2015). In so doing, it heeded Justice Kagan’s now-famous dissent in Genesis Healthcare v. Symczyk, 133 S. Ct. 1523, 1533 (2013) (Kagan, J., dissenting), in which she cautioned the Third Circuit to rethink its “mootness-by-unaccepted-offer theory” and noted to all other courts of appeals: “Don’t try this at home.”
Justice Kagan’s Dissent Chalks Up Another Victory on Rule 68 Mootness
To the relief of class action practitioners in the Seventh Circuit, the appeals court last week beat a hasty retreat on the issue of whether an unaccepted Rule 68 offer, made prior to a motion for class certification, could moot the individual claim of a class representative and therefore the class action. In an opinion authored by Judge Easterbrook, joined by Judges Posner and Manion, the Seventh Circuit explicitly overruled Damasco v. Clearwire Corp.