Standing Up for the Full Promise of Equal Employment Opportunity

Victor Guerrero applied twice for employment as a Corrections Officer with the California Department of Corrections and Rehabilitation (“CDCR”). Both of his applications were subject to a multi-step review process, one step of which was a background investigation questionnaire.  Since 2009, the background investigation questionnaire has included the following question: “Have you ever had or used a social security number other than the one you used on this questionnaire?” This question, known as Question 75, exclusively eliminated Latino applicants—including Mr. Guerrero—from the review process. Mr. Guerrero filed suit, alleging Question 75 has a disparate impact on Latino applicants.

SCOTUS Denies Cert in Wal-Mart Stores v. Braun

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.

SCOTUS OKs Statistical Evidence in Tyson v. Bouaphakeo Decision

Today, the US Supreme Court issued its long-anticipated decision in Tyson Foods Inc. v. Bouaphakeo et al, and it is very good for plaintiffs. The court finds that representative or statistical proof is just like other evidence:  “Whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action.”

THE Underground Guide To Class Action Slang (PART TWO)

The 2016 Impact Fund Class Action Conference held on February 18/19, gathered class action practitioners and impact litigators from across the country for two days of brainstorming, war stories, and colorful lemon-based metaphors. It also reminded me of a few more terms to add to our growing Impact Fund Class Action Dictionary...

The Underground Guide To Class Action Slang (part One)

Over the past half-century, class actions have changed the world for the better:  desegregating schools and workplaces, ensuring clean air and water, and exposing unsafe products and corporate fraud.  But, have you considered their impact on the English language?  Class actions have spawned some inventive slang, which can be bewildering to practitioners new to the field, much less to ordinary folks.  We’re here to help with this, the Impact Fund Class Action Dictionary. 

Black Workers Get Class Action Certification in Race Discrimination Case

The Western District of Washington recently certified a class of black workers asserting claims of race-based discrimination based on subjective decision-making in the hiring and firing process of workers at the Sound Transit “University Link” light-rail project. The case is Rollins v. Traylor Bros., Inc., No. C14-1414 JCC, 2016 WL 258523 (W.D. Wash. Jan. 21, 2016). After allegations of discrimination and harassment against black laborers at the Traylor Bros., Inc./Frontier-Kemper Joint Venture (“TFK”) site. Sound Transit hired an expert (Marcella Flemming Reed) to investigate...

Top 10 Tips For Your Next Class Action Settlement Mediation

It is the day we are all waiting for. Game Day. Mediation. Your firm has spent 1,246.7 hours on the case so far, but everything will happen in these 12 hours. By the end of the day, you are so emotionally exhausted from the mediator pounding on you, and so happy to have the mediator come in with a number that you can tolerate, that you walk out with a pending mediator’s proposal that only says the gross dollar value of the global settlement. Perhaps you leave the mediation with a handshake agreement, but without nailing down the details of the Memorandum of Understanding. Oops. The devil was in those particular details. 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...

Ninth Circuit Win For Transparency

The Ninth Circuit’s decision in The Center for Auto Safety v. Chrysler Group, decided January 11, 2016, adopted a new standard for district courts to use in deciding whether the public has a right to access court records filed by the parties under seal.   The decision will go a long way to ensure that corporations cannot hide evidence of misconduct that may threaten public safety.   The decision also has important implications for class action litigators.   

Rule 23 Amendments Update: What’s Still on the Table and What Fell Off

For more than a year, a subcommittee of the Advisory Committee on Civil Rules has been soliciting and vetting ideas for amending Rule 23, the federal class action rule (see previous post here). These hardy souls (Judge Robert M. Dow, Professor Robert Klonoff, Elizabeth Cabraser and John Barkett) have criss-crossed the country, attending more than a dozen conferences to hear from practitioners across the spectrum. The Impact Fund’s 2015 Class Action conference in Berkeley was one of the subcommittee’s whistlestops.

Historic Ruling Upholds Rights of American Muslims

Last month, we received a ruling from the U.S. Court of Appeals for the Third Circuit in the case Hassan et al v. The City of New York that created the first precedent to suggest that American Muslims should be free from suspicionless surveillance based solely upon their religion, notwithstanding government claims of national security. The District Court had dismissed our challenge to the New York City Police Department’s Muslim spying program, which the Court of Appeals overturned in spectacular fashion.

Class Action Settlement Ethics - Talk Class Relief First, Fees Later

Counsel negotiating a settlement on behalf of a class should start with class relief before any talk of attorneys’ fees, a plaintiffs’ attorney says. That will ensure that the attorney avoids “the most obvious and most serious of ethical allegations: that you have traded off class relief and fees,” Jocelyn Larkin, executive director of the Impact Fund, told webinar attendees Aug. 20.

Defendants often try to negotiate class settlements with one number, saying they don’t really care how it’s allocated, she said. “Resist negotiating along those lines.” Tell defendants early that you want to discuss class relief first, and only then talk about fees and incentive awards, she said. She suggested getting the mediator’s help in keeping the discussions separate if possible.

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.


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 IndustriesNo. 14-20496 (5th Cir. August 12, 2015). In so doing, it heeded Justice Kagan’s now-famous dissent in Genesis Healthcare v. Symczyk133 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.