Class Actions

The trial court correctly compelled arbitration of this Massachusetts Uber driver's wage and hour class action, based on alleged misclassification of Uber drivers as independent contractors.  For purposes of determining whether the plaintiff was a worker in interstate commerce, exempt from the FAA under 9 USC 2, the court properly considered the class of all Uber drivers nationwide, not just… Read More

Google settled part of a class action, paying some class members $65 million and agreeing to separately pay plaintiffs' attorneys fees as awarded by the court.  Plaintiffs' attorneys appealed from the district court's fee award, claiming the district court should have awarded them more based on the common fund theory of fee awards rather than the lower sum it calculated… Read More

Each class member must establish Article III standing in order to recover relief in a case in federal court.  Here, TransUnion included incorrect OFAC terrorist information in its credit files on 8,000 class members but issued credit reports to third parties with the incorrect OFAC information only as to 1,600 of the class members.  This decision holds that only the… Read More

Under the recently revised Rule 23(e)(2) requires a district court to consider, in determining whether to approve a class action settlement, not only the adequacy of the relief in light of the risks of litigation, but also the effectiveness of the proposed means of distributing the settlement and the terms of any proposed award of attorney fees.  This decision holds… Read More

On behalf of a putative class of prescription drug buyers, plaintiff alleged that Rite Aid reported inflated "usual and customary" drug prices to the pharmacy benefits managers which transmitted the inflated figures to plaintiffs' health insurers, causing the plaintiffs to pay higher than proper deductibles for the drugs.  This decision affirms an order denying Rite Aid's motion to compel arbitration. … Read More

This decision affirms an order denying class certification on a claim that See's did not give its employees a second meal break when they worked for 10 hours or more a day.  See's had a written policy requiring a second meal break in those circumstances, but plaintiff claimed that See's routinely failed to follow that policy in practice.  Time records… Read More

A precertification voluntary dismissal without prejudice of so-called “class claims” cannot constitute a favorable termination on the merits where, as here, the defendant agreed to pay the plaintiff a sum in exchange for the plaintiff’s dismissal of her individual claims. A class action is merely a procedure by which a plaintiff can pursue her claim, not a separate claim that… Read More

The trial court erred in denying class certification in this action arising from allegedly terrible conditions at an apartment complex which the defendant owner had advertised as a luxury apartment building with many fancy amenities, but which was instead plagued with trashed common areas and other defects.  Reliance is not an element of the claim for false advertising under B&P… Read More

Statistical evidence is admissible to establish predominance under FRCivP 23(b)(3) if that evidence would be admissible in an individual action on the same claim, the statistical evidence is linked to the plaintiffs' theory of liability and the use of averaging assumptions does not conceal the variations that otherwise would defeat class certification.  Here, plaintiffs' statistical evidence satisfied those three tests. … Read More

With the exception of one claim, the trial court did not abuse its discretion in denying class certification in this wage and hour case.  Plaintiffs claimed that the employer misclassified them as independent contractors.  While the proper classification of the workers was a common question, the trial court did not abuse its discretion in holding that the common issue did… Read More

An arbitration clause that stated both parties waived the right to bring a class action, act as a private attorney general or join claims of other persons in arbitration or in court did not offend McGill.  At least given the 9th Circuit's view that the FAA preempts Broughton and Cruz, the arbitrator could award public injunctive relief since McGill makes… Read More

Defendant waived its right to compel arbitration by participating in a putative class action for 24 months after service before moving to compel arbitration.  It could not excuse the delay on its belated discovery of the arbitration agreement bearing plaintiff's signature sisnce it alleged arbitration as an affirmative defense in its answer, knew that when plaintiff was hired its policy… Read More

In 2018, the California electorate adopted Prop. 11 which enact Lab. Code 880 et seq., providing that ambulance employees must remain reachable by a communications device during their work shifts, including rest breaks. Lab. Code 889 expressly made the new law applicable to any and all actions pending on, or commenced after October 25, 2017. This decision holds that the… Read More

Disagreeing with Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, this decision holds that Amrican Pipe tolling applies to this later-brought individual suit on the same Labor Code violations alleged in two prior putative class actions, both alleging that Staples misclassified its store managers as exempt employees even though they spent more than 50% of their work time performing functions… Read More

The district court did not abuse its discretion in denying class certification in this overtime pay case, finding plaintiff had not shown that common issues predominated.  Though there was a common question about whether defendant violated California labor law in calculating the amount of overtime pay (because in computing base pay it divided the flat bonus for weekend worked by… Read More

The district court erred in enhancing an attorney fee award after settlement of a class action.  It should not have enhanced the fee simply because the plaintiff's attorney spent many hours on the case, particularly as much of that time was spent on discovery.  Since the defendant usually cannot retaliate, there is an incentive for class counsel to run up… Read More

This case holds that when a settling defendant in a class action agrees to pay a reasonable attorney's fee to the plaintiff's attorney separately from the amount paid in settlement of class members' claims, City of Burlington v. Dague (1992) 112 S.Ct. 2638 applies, and the court may not enhance the fee award to compensate for contingency risk. Read More

In an attempt to settle the many coordinated suits by local governmental entities against drug companies, doctors and others about over-prescribing opiod drugs, the district certified a "negotiation class" of all cities and counties for the sole purpose of attempting to negotiate a settlement to the litigation.  This decision holds that the certification was in error.  Rule 23 allows litigation… Read More

A class action waiver is conceptually distinct from an arbitration agreement, though the two are often found together.  FINRA Rule 13204 forbids class action FINRA arbitrations.  Subsection (a)(4) also forbids an employer from enforcing an arbitration agreement against an employee who is a member of a certified class in a court action, at least with respect to the claims asserted… Read More

This decision holds that Trustees v. Greenough (1882) 105 U.S. 527, and Central Railroad & Banking Co. v. Pettus (1885) 113 U.S. 116 prohibit routine awards of incentive payments to named plaintiffs from a common fund class recovery.  Greenough upheld an award of attorneys’ fees and litigation expenses but rejected as without legal basis an award for the lead plaintiff's… Read More