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Earlier this year, the Judicial Conference Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules submitted proposed amendments to a number of Rules, including Fed. R. Civ. P. 23 (which governs class actions), and requested that the proposals be circulated to the bench, bar, and public for comments. The proposed amendments, advisory committee reports, and related information can be found on the Judiciary’s website and a copy is available here.
The Judicial Conference Committee on Rules of Practice and Procedure then approved publication of the proposed amendments to Rule 23 for a comment period from August 12, 2016 through February 15, 2017. The Advisory Committee will hold public hearings on November 3, 2016, January 4, 2017, and February 16, 2017 regarding the proposed amendments to the Civil Rules, including Rule 23.
As a result, significant changes to Rule 23 of Fed. R. Civ. P. are likely, and employers should understand how these proposed changes may impact the defense of class action lawsuits going forward. A brief summary of some of the more notable changes are as follows:
Form of Notice to Class Members: If implemented, individual notice to any class certified under Rule 23(b) (3) or to a class proposed to be certified for purposes of settlement may be issued not only by U.S. mail, which is generally required, but also through “electronic means, or other appropriate means.” This change would permit electronic notice to be issued via e-mail or social media. The Committee Note cautions that, while e-mail may be the most promising method for notice, it is important to keep in mind that a significant portion of class members in certain cases may have limited or no access to e-mail or the Internet. The amended rule emphasizes that the Court must exercise its discretion to select the appropriate means of disseminating notice. For employers, this may be an opportunity to highlight the potential disruption that could be caused by notice being issued to a company e-mail address or to an employee’s social media account, which may be accessible at work.
Settlement Approval: The proposed amendments outline factors that courts must consider when approving settlement and determining whether a proposal is “fair, reasonable, and adequate.” Namely, courts will now need to consider whether the “class representatives and class counsel have adequately represented the class”; whether the settlement was “negotiated at arm’s length”; whether the relief provided for the class is adequate (taking into account several factors such as costs, risks, effectiveness of the proposed method of distributing relief to the class, among others); and whether “class members are treated equitably relative to each other.” These factors will direct the approval process and are helpful points to consider when drafting settlement agreements prior to the amendments actually taking effect.
Class-Member Objections: Another notable proposed change is to Rule 23(e)(5), which governs objections by class members to proposed settlements. This section would be revised to require that an objector state “with specificity” the grounds for the objection, in hopes of preventing baseless objections from being filed. The objection must also state whether it applies to the entire class, a subset of the class, or to the objector alone. Amended Rule 23(e)(5) deletes language requiring court approval for the withdrawal of an objection, instead adding section (b), which requires court approval for payment to an objector or objector’s counsel in connection with “forgoing or withdrawing an objection” or “forgoing, dismissing, or abandoning an appeal of a judgment approving the proposal.” The proposed amendments also include provision (e)(5)(c), which states that if approval under Rule 23(e)(5)(B) has not been obtained prior to an appeal being docketed, the procedure outlined in Rule 62.1 applies, which permits a district court to issue an indicative ruling.
Appeals: Amended Rule 23(f) states that interlocutory appeals can be pursued from an order granting or denying class-action certification, but not from an order to give notice under Rule 23(e)(1). The time within which a party must file a petition for permission to appeal remains 14 days after the order is entered, unless any party is the United States, a United States agency, or a United States officer, in which case it is 45 days after the order is entered.
After the public comment period concludes, the Advisory Committee will decide whether to submit the proposed amendments to the Committee on Rules of Practice and Procedure. If approved, the proposed amendments would become effective on December 1, 2018.
With the Department of Labor’s recent changes to the salary threshold for white-collar exemptions set to take effect on December 1, 2016, many employers are struggling to find the best option for how to comply with the new regulations without breaking the bank. One lesser-known alternative that is receiving increased attention from many companies is the fluctuating workweek method of payment for non-exempt employees.
As the name suggests, under this method, a non-exempt employee receives a fixed weekly salary regardless of hours worked. In weeks in which work exceeds 40 hours, the employee will receive an extra .5 times (rather than 1.5 times) their regular rate for overtime hours (and note that this hourly rate therefore fluctuates depending on the hours worked in any given week). The fluctuating workweek method may be a terrific solution for employers in certain situations (and only in states where it is legal) but it is also full of risk and challenges in its application.
In general, an employer may pay a non-exempt employee according to the fluctuating workweek method if: (1) the employee’s hours fluctuate for week to week; (2) the employee receives a fixed salary that does not vary with the number of hours worked (with the exception of overtime premiums); (3) the fixed weekly amount must always be equal to, or exceed, the applicable minimum wage; and (4) a clear mutual understanding between the employer and employee must exist regarding this method of payment. See 29 C.F.R. § 778.114. Those criteria may sound straightforward, but in practice, they are far from it. If an employer chooses to pay bonuses to employees, some bonuses may negate the finding that the employee truly receives a fixed weekly salary. RadioShack recently agreed to pay up to $41 million to class members in order to settle an overtime claim with its managers dating back to 2012, wherein the claimants alleged that the fluctuating workweek method of pay should not have been used because the performance-based bonuses invalidated this method.
Administration of the fluctuating workweek can be challenging in other ways. With very few exceptions, employers must pay employees their full salary even in workweeks in which the employee does not work 40 hours. In addition, employers must have safeguards in place to ensure that the employee’s hourly rate never falls below applicable minimum wage, including in a week where considerable overtime is worked. For example, if an employer agrees to pay an employee a $360 salary per week under the fluctuating workweek, but the employee works 60 hours in a week, the employer owes them an extra $60 for the extra 20 hours of work. However, the employee’s total compensation of $420 for 60 hours is below the federal minimum wage (and well below applicable wage laws in some states and cities).
Despite these challenges, the fluctuating workweek method of overtime pay can be beneficial to both employees and employers: (1) it provides employees a greater degree of consistency by guaranteeing them a minimum salary; (2) it can reduce some of the financial woes experienced by employers that come with hefty overtime payouts.
Whether the fluctuating workweek is appropriate depends on several factors, including: the nature of the positions; the hours of work; the employee population; and the employer’s ability to administer the practice. .While it is certainly not the best solution in all cases (especially for employers with operations in many different states or cities with different wage laws), it does provide employers an alternative method for complying with overtime requirements that may help reduce the related increase in labor costs. A final word of warning: the cost of litigation if this method is misused will far exceed any potential benefits, so we encourage you to consult the with wage-law experts at Jackson Lewis to discuss whether this solution might work for your company, and how it can be implemented in a way that minimizes risk.
In a case for minimum wage and overtime claims, the Eleventh Circuit joined the D.C., Second, Third, Seventh, and Ninth Circuits in holding that a state-law Rule 23 class action may be maintained in the same proceeding as a Fair Labor Standards Act (“FLSA”) collective action. Calderone, et. al. v. Scott, No. 2:14-cv-00519-JES-CM (11th Cir. Sept. 28, 2016).
Plaintiffs sued the Sheriff of Lee County, Florida in his official capacity alleging claims under the FLSA as well as the Florida Minimum Wage Act (“FMWA”) for minimum wage and overtime violations. Plaintiffs claimed that they, and other similarly situated employees, performed off-the-clock work for which they were not paid. The Middle District of Florida granted conditional certification under the FLSA, but denied conditional Rule 23(b)(3) certification on plaintiffs’ FMWA claims. Plaintiffs appealed to the Eleventh Circuit.
The Eleventh Circuit found that the purpose behind both collective and Rule 23 class actions is to resolve common claims efficiently. It recognized that the District Court was concerned about the procedural differences between the two claims. The Eleventh Circuit, however, found that the actions are not “irreconcilable.” The plain text of the FLSA does not indicate that a collective and class action cannot be maintained simultaneously. The FLSA explicitly provides that a collective action cannot coexist with an action brought by the Secretary of Labor. This text demonstrates that Congress knew how to carve out actions that should not be maintained with a collective action. As a result, the Eleventh Circuit concluded that Congress did not intend the FLSA to preempt a Rule 23 class action.
Moreover, Rule 23’s opt-out requirements were developed so they did not affect the FLSA’s existing opt-in scheme. The Court found nothing confusing about sending two separate notices or the other procedural components involved in class or collective actions. As a result, the Eleventh Circuit concluded that there is no tension in maintaining both a Rule 23 class and FLSA collective action.
We anticipate that we will see a higher volume of Rule 23 class actions filed concurrently with FLSA collective actions within the Eleventh Circuit based on this opinion. Nevertheless, the circuits remain split on the issue and the Supreme Court has yet to review a decision resolving the conflict.
Below is a link to the latest issue of the Jackson Lewis Class Action Trends Report. This report is published on a quarterly basis by our firm’s class action practice group in conjunction with Wolters Kluwer. We hope you will find this issue to be informative and insightful. Using our considerable experience in defending hundreds of class actions over the last few years alone, we have generated another comprehensive, informative and timely piece with practice insights and tactical tips to consider concerning employment law class actions.
The U.S. Court of Appeals for the Second Circuit recently held that district courts can decertify a class after a jury verdict but before entry of final judgment. In Mazzei v. Money Store, 2016 U.S. App. LEXIS 12994 (2d Cir. July 15, 2016), the appellate court affirmed the United States District Court for the Southern District of New York’s post-jury-verdict decertification of a class of home loan borrowers, thereby overturning a $55 million jury award.
The class was comprised of borrowers whose loans with either owned or serviced by the defendant during the relevant time period. After trial, the defendants moved for decertification of the class on the grounds that the named plaintiff had failed to prove class-wide privity of contract between the defendant and borrowers whose loans defendant had only serviced but did not own. After post-trial briefing by both parties, the district court held that plaintiff’s failure to prove privity with respect to absent class members necessitated decertification under the “typicality” and “predominance” requirements of Fed. R. Civ. P. 23(a) and 23(b)(3).
On appeal, the Second Circuit rejected the plaintiff’s arguments that decertification is unavailable after a jury verdict in favor of a class; that the findings made to support decertification ran afoul of the Seventh Amendment; and that Rule 23 class certification requirements were satisfied. The court noted that the statutory text of Civil Rule 23(c)(1)(c) specifically provides that an “order that grants or denies class certification may be altered or amended before final judgment.” The court rejected plaintiff’s argument that courts may only overturn a jury verdict under Civil Rule 50(b)’s judgment as a matter of law mechanism. The court cited to case law and statutory commentary in finding that district courts have an “affirmative duty” to monitor and reexamine class decisions as evidence develops in a case. The court held that “[t]he power to decertify a class after trial when appropriate is therefore not only authorized by Federal Rule 23 but is a corollary.”
The court also rejected the plaintiff’s Seventh Amendment arguments, finding that neither the named plaintiff nor the decertified class members suffered a violation of their constitutional rights. The court noted that the named plaintiff was awarded damages on his individual claims and has no constitutional right to represent a class. Further, the decertified class members retained the right to refile individual actions if they chose to do so, and the statute of limitations on their claims was tolled during the case under the American Pipe tolling rule. As a result, neither the individual plaintiff nor the class members were denied the right to a jury trial.
The most significant ruling to emerge from the decision stems from the discussion on the court’s power to make factual findings in support of post-verdict decertification. The court held that, although decertification necessitates making factual determinations which overlap with the merits of the case (which is generally left for the jury to decide), the court may consider merits questions to the extent that they are relevant in determining whether Rule 23 prerequisites for class certification have been met. Such determinations do not bind the jury, and are considered only in deciding whether class certification is appropriate.
However, the court did not hold that district courts have carte blanche authority to make factual determinations where the jury has already made factual findings at trial. Instead, the court held that when considering class decertification after a jury verdict, the district court must defer to the jury’s factual findings “unless those findings were ‘seriously erroneous,’ a ‘miscarriage of justice,’ or ‘egregious,’” the same standard used when considering a Rule 59 motion for a new trial. The court further held that, where questions of fact arise that were necessarily not decided by the jury, the district court is empowered to make its own factual findings based on the preponderance of the evidence.
Employing this standard, the Second Circuit found no abuse of discretion in the district court’s ruling that the jury’s determination on typicality and predominance were “legally insufficient.” The court held that by describing the evidence as “legally insufficient,” the district court satisfied the requirement of finding the jury’s verdict to be at least “seriously erroneous.”
While the Second Circuit acknowledged that, ordinarily, the proper solution in such cases is to create a subclass instead of decertifying the class entirely, the court agreed that, under the facts established at trial, there was no basis on which the parties could have determined which members of the class had loans that were owned by defendant, and which had loans that were only serviced by defendant. As a result, decertification was appropriate.
The Mazzei decision gives employers and other defendants in a class action another opportunity to refute class treatment of a claim, not only before trial but now afterwards as well.
In a case for overtime compensation, the Middle District of Florida (Fort Myers Division) held that plaintiffs’ claims under the Fair Labor Standards Act (“FLSA”) and Federal Rule of Civil Procedure 23 were “mutually exclusive and irreconcilable.” Tamera Goers, et. al. v. L.A. Entertainment Group and Amer Salameh, No. 15-cv-412-FtM-99CM (Aug. 25, 2016).
Contending they were due overtime pay, adult entertainers sought certification of their FLSA claims as a collective action and certification of their state claims under the Florida Minimum Wage Act as a class action under Rule 23. Rule 23 exists to determine the propriety of bringing a matter as a class action and requires such an action to be superior to other methods of adjudication.
By way of background, courts across the nation are split on whether a representative plaintiff can bring a Rule 23 class action concurrently with a collective action under the FLSA. The circuits that have permitted the claims to proceed together have found that the underlying factual bases for the claims are identical and thus it would be neither convenient nor economical to relitigate the state law claims in state court. The Middle District of Florida even recognized that some district courts within the Eleventh Circuit adopt this philosophy.
The plaintiffs in this case relied on a recent U.S. Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), which addressed a dual certified class from an Iowa District Court dealing with an Iowa wage payment statute along with the FLSA. The Middle District of Florida, however, interpreted the Supreme Court decision as limiting its ruling so as to not rule on the propriety of a Rule 23 class proceeding simultaneously with a FLSA collective action when it stated:
The parties do not dispute that the standard for certifying a collective action under the FLSA is no more stringent than the standard for certifying a class under the Federal Rules of Civil Procedure. This opinion assumes, without deciding, that this is correct. For purposes of this case then, if certification of respondents’ class action under the Federal Rules was proper, certification of the collective action was proper as well.
The Middle District dismissed this as mere dicta by the Supreme Court. Instead, the Middle District ruled that until the Eleventh Circuit holds otherwise, it would not permit class certification of a Rule 23 class action based on state wage statutes as well as a collective action based on overlapping FLSA claims, because the two were “mutually exclusive and irreconcilable” and would create confusion.
The future of dual filed class and collective actions is uncertain. Nevertheless, it appears that circuits around the country will start pushing the Supreme Court to review a decision on this issue and resolve the split among the circuits.
Requiring class and collective action waivers as a condition of hire or continued employment violates the National Labor Relations Act, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Morris v. Ernst & Young, No. 13-16599 (9th Cir. Aug. 22, 2016).
The Ninth Circuit has joined the Seventh Circuit in reaching this conclusion. (See our article on Lewis v. Epic Systems Corp., No. 15-cv-82-bbc (7th Cir. May 26, 2016), Supreme Court Review Likely After Seventh Circuit Creates Split on Class and Collective Action Waivers under NLRA.) The three other circuits (Fifth, Second, and Eighth Circuits) to have considered specifically the issue have concluded such waivers do not violate the NLRA.
By way of background, ever since the U.S. Supreme Court ruled that class claims can be waived if contained in a valid arbitration agreement under the Federal Arbitration Act (“FAA”), employers have entered into such agreements with their employees. The National Labor Relations Board, however, takes the position that prohibitions against class or collective proceedings violate an employee’s rights to engage in protected concerted activity for mutual aid and protection under Sections 7 and 8 of the NLRA. Disagreeing with the NLRB, the Fifth, Second, and Eighth Circuit Courts each held that such agreements do not violate the NLRA. Now, at least two other federal appellate courts, the Ninth and the Seventh Circuits, agree with the NLRB.
In Morris, Stephen Morris and Kelly McDaniel, accountants at Ernst & Young, were required to sign an arbitration agreement as a condition of employment. The agreement not only required an arbitral forum for work-related disputes, but also that disputes “pertaining to different [e]mployees” must “be heard in separate proceedings.” Despite this provision, the plaintiffs filed a class and collective action in federal court, alleging they and others similarly situated had been misclassified under the Fair Labor Standards Act and California labor law. Upon Ernst & Young’s motion, the trial court enforced the arbitration agreement and its class waiver and ordered the parties to separate arbitrations.
The Ninth Circuit reversed the lower court’s order and remanded the case for a determination as to whether the “separate proceedings” clause — the class waiver — could be severed from the agreement. Essentially following the Seventh Circuit’s reasoning, the Court first deferred to the NLRB’s interpretation of the NLRA. It then held that employees have a substantive right to pursue work-related legal claims and to do so together. It went on to hold that employers cannot defeat such rights by requiring employees, as a condition of employment, to agree to pursue claims on an individual basis. Therefore, the Court concluded that Sections 7 and 8 of the NLRA make class action waivers that are a condition of employment — and the “separate proceedings” provision in the Ernst & Young arbitration agreement — unlawful. The Court concluded that a prospective waiver of Section 7 rights renders the agreement unlawful, and that such a rule would be applicable equally to all agreements, not just arbitration agreements. Accordingly, the majority held there is no conflict between the FAA and the NLRA.
Following Morris, the future of class, collective, and representative action waivers is uncertain. Within the Ninth Circuit (which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) it remains to be seen if the matter will be heard en banc by the full Ninth Circuit Court of Appeals. If the decision stands, the split on this issue is significant, and the matter is ripe for U.S. Supreme Court review. Many of the Supreme Court’s decisions in the area of class action waivers have been based on 5-to-4 rulings, where the late-Justice Antonin Scalia represented one of the five votes favoring class waivers. The Supreme Court’s composition likely will affect the fate of class action waivers and the outcome of the dispute among the circuits.
For more information, see Holding Class Waivers Violate the NLRA, Ninth Circuit Joins Circuit Split.
Please contact Jackson Lewis with any questions about this case or other workplace developments.
Earlier this month, United States District Court Judge Peter Sheridan dismissed a class action brought against Work Out World (“WOW”) under the Telephone Consumer Protection Act (TCPA). In doing so, Judge Sheridan relied on the recent decision by the United States Supreme Court in Spokeo, Inc. v. Robins.
The named plaintiff, Norreen Susinno, filed a class action complaint on July 30, 2015, against WOW. The complaint alleged that WOW negligently, knowingly and/or willfully contacted the plaintiffs on their cellular telephones in violation of the TCPA and thereby invaded their privacy. Specifically, Ms. Susinno alleged that on July 28, 2015, WOW left a pre-recorded message on her cellular telephone’s voicemail regarding membership. The complaint went on to allege that the plaintiff and class members incurred various types of harm, including incurring certain cellular telephone charges or reduced cellular telephone time for which they had previously paid, having to retrieve or administer messages left by WOW during the telephone calls, and invading the privacy of the plaintiff and class members. Ms. Susinno sought to certify a nationwide class of all persons who, in the preceding four years, had received telephone calls from WOW which were made with the use of an automatic telephone dialing system and/or used an artificial or prerecorded voice.
On June 10, 2016, WOW filed a motion to dismiss the complaint. WOW argued that Ms. Susinno had failed to allege any concrete harm and that, pursuant to the Supreme Court’s decision in Spokeo, the complaint should be dismissed. In opposition to WOW’s motion, Ms. Susinno alleged she suffered actual damages, including that WOW’s calls (1) were a nuisance and invasion of privacy, (2) trespassed upon and interfered with her rights and interest in her cellular telephone, (3) intruded upon her seclusion, (4) caused her aggravation and annoyance, (5) wasted her time, (6) caused the loss of use of her phone during the time that her phone was occupied by incoming calls, and (7) depleted the battery life on her cellular telephone. WOW countered that the entirety of Ms. Susinno’s claim under the TCPA rested on her receipt of a single, unanswered phone call and Ms. Susinno could offer nothing more than procedural harm in support of her claim.
Interestingly, WOW also sent Ms. Susinno an offer of judgment, including injunctive relief and payment to her in full and final satisfaction of her claims. WOW’s offer included the deposit of $1,501.00 on Ms. Sussino’s credit card. Ms. Susinno did not accept WOW’s offer. Nevertheless, as part of its motion to dismiss, WOW argued that dismissal was also warranted and consistent with the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, as Ms. Susinno no longer had a “live claim” following the offer of judgment. In doing so, WOW pointed to the fact the Supreme Court’s Campbell-Ewald decision left open the question “whether [the determination that an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case] would be different if a defendant deposits the full amount of plaintiff’s individual claim in an account payable to the plaintiff, and the court entered judgment for the plaintiff in that amount.”
Following a hearing on the motion to dismiss, Judge Sheridan granted WOW’s motion and dismissed the matter with prejudice. Judge Sheridan’s order did not address WOW’s arguments for dismissal based on the offer of judgment.
Although Ms. Susinno filed an appeal of the district court’s decision, the decision may be very helpful to companies that are looking for various arguments to dispose of and otherwise defend against class claims, particularly where the alleged harm at issue is negligible, to the extent there is any harm at all.
On April 21, 2016, Uber tried to buy its peace from two class actions in a $100 million settlement with 385,000 putative class members. See O’Connor v. Uber Technologies Inc., 3:13-cv-03826 (N.D. Cal.); Yucesoy v. Uber Technologies Inc., 3:15-cv-00262 (N.D. Cal.). However, as of July 14, 2016, the class actions still remain open pending court approval of the settlement.
In the long meantime, dozens of class members have filed objections and motions to intervene. Plaintiffs’ counsel cut her fee request by $10 million, and she is opposing a motion to disqualify her as class counsel.
Also in the meantime, the Ninth Circuit Court of Appeals intimated that it may reverse the district court’s prior decision to invalidate the plaintiffs’ arbitration agreements – which could undermine the class certification by ejecting some Uber drivers from district court to arbitration.
It is clearly critical to get a hard-won settlement agreement approved quickly. Here are some takeaways from Uber’s experience:
Many of the Uber drivers’ objections are based on complaints that the ultimate legal issue in the case – whether Uber drivers are employees or independent contractors – remains unresolved in the settlement. However, that is an insufficient basis to object because there is no requirement that a settlement resolve the ultimate legal issue (in fact, most settlements do not), only that the settlement be “fair, reasonable, and adequate.” See Fed. R. Civ. P. 23(e)(2). In one Uber case in state court in California, the judge requested that any objections be filtered through the claims administrator before being forwarded to the court, because some concerns do not, “rise to the level of an objection.” See Kramer v. Uber Technologies Inc., No. BC589891 (Cal. Super. Ct., L.A., July 6, 2016). Parties to class settlements may want to consider requesting a similar pre-objection gatekeeper to avoid the bandwagon, pile-on effect that appears to have occurred in this closely watched, high profile class action settlement.
In this case, one objection came from named plaintiff Douglas O’Connor, who claims that he was not adequately informed about the deal before it was made public. Whether or not his claims have merit, parties should ensure that a named plaintiff is actively involved in negotiations and on board with the settlement to avoid an appearance of unfairness, because an objection from a named plaintiff may carry more weight.
Finally, parties should assign at least some value to all of the claims that are being resolved in a settlement, even if the value is low, and explain why. Judge Chen’s June 30, 2016 Order delaying approval to obtain additional information about the proposed settlement criticizes some claims’ zero value for settlement distribution, especially absent any justification. See O’Connor v. Uber Technologies Inc., 3:13-cv-03826 (N.D. Cal.); Yucesoy v. Uber Technologies Inc., 3:15-cv-00262 (N.D. Cal.).
Much can be learned from the experiences of skilled class action attorneys’ navigating the twists and turns of a complicated and massive class settlement.