TYSON FOODS V. BOUAPHAKEO: HAS THE SKY FALLEN?

Earlier this year, statistics made headlines as the subject of a new Supreme Court decision, Tyson Foods, Inc. v. Bouaphakeo. As Jocelyn Larkin described in her earlier blog post, employees working in the kill, cut, and retrim departments of a Tyson Foods pork processing plant in Iowa alleged that they had not been paid overtime for the time they spent putting on and taking off the protective gear required to do their dangerous jobs. At trial, the employees relied on “representative evidence” to prove liability – an observational study that resulted in an estimated average “donning and doffing” time for each department. A jury awarded the class of employees about $2.9 million in unpaid wages.

The Supreme Court accepted Tyson’s appeal and agreed to consider two questions:

Third Circuit Rules Plaintiff Must Have “a fair opportunity” to move for class cert

Good news for plaintiffs in a Third Circuit decision on mootness in a Rule 23(b)(2) injunctive relief class action, Richardson v. Bledsoe, No. 15-2876 (3d Cir. July 15, 2016). This case presents a variation of the Campbell-Ewald named plaintiff pick-off strategy in a systemic reform case.  It recognizes a “picking off” exception to mootness in a class action where the individual claim for relief is “acutely susceptible to mootness” by the actions of the defendant. This one takes a bit of explaining.  

An Insider's Guide To The Impact Fund Class Action Training Institute

Last October, shortly after I joined the Impact Fund as its Litigation Fellow, I had the opportunity to attend the Impact Fund’s Training Institute in Chicago. Having had some exposure to class action litigation during my clerkship, but no experience actually litigating a class action, I had a lot to learn and was excited to dive in and learn as much as I could over the course of the training.

Cy Près 101

In modern litigation, the term “cy près” refers to the act of designating unclaimed class funds to public interest organizations whose work furthers the interests of the class and is tied to the purpose of the litigation. But the concept of cy près originated long ago in the law of charitable trusts in courts of equity. Today, cy près is generally used only after class funds have been distributed to class members, but it has become impossible or impracticable to distribute some remaining portion of the class funds, such as in the following situations:

Economic Justice: Resisting Zombie Claims by SSA

Imagine receiving a notice from the IRS that your long-awaited tax refund has been withheld by the Social Security Administration (“SSA”) because you were once paid Social Security benefits and SSA has identified a benefit overpayment that occurred over a decade ago — or one of your parents was once paid Social Security benefits on your behalf over a decade ago and SSA identified an overpayment. If the withheld amount was $2,100, would you go out and find an attorney to represent you in an individual case against the SSA?

Civil Rules Committee Takes On Serial Objectors with Proposed Rule 23 Changes

For 18 months, we have been tracking the work of the Advisory Committee on Civil Rules, and specifically its Rule 23 subcommittee, which has been evaluating a range of proposals to amend the federal class action rule.  That work was recently completed and the Committee will soon set a schedule for public comment on a series of draft amendments.

The good news is that the Rule 23 proposals are modest and are not likely to trigger significant opposition like the firestorm that accompanied the discovery rule changes. 

"Concrete" Still Not Set In Spokeo Decision

The Supreme Court yesterday decided the third of three class actions cases from this term that we have been closely watching, Spokeo Inc. v. Robins.   A few observations.

Phew!  The Court did not adopt the most extreme of defense arguments that Congress cannot authorize statutory damages where the victim cannot prove that he or she actually lost money as a result of corporate malfeasance.

Defending the use of Class Actions for Enforcement of Civil Rights Laws

It's a fact of life that long-awaited vacations can sometimes be spoiled by an ill-timed rain storm, lost luggage, or a bad reaction to that local street food.  But discrimination?

Plaintiffs Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie Reiskin use wheelchairs for mobility and were denied equal access to hotel transportation services at hotels owned by Defendant Hospitality Properties Trust (“HPT”). 

New Teeth For California's 'Suitable Seating' Law

On April 4, the California Supreme Court unanimously decided Kilby v. CVS, which adopted a very worker-friendly construction of the state’s century-old “suitable seating law,” and will help ensure that, going forward, seating cases will proceed under California's Private Attorney General Act (PAGA) on a broad class-wide or representative action basis.

Since 1911, California law has guaranteed seats to employees “when the nature of the work reasonably permits the use of seats” (although until 1973, only women were protected). 

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.