Since 2017, more than 1,500 class action lawsuits have been filed under the Illinois Biometric Information Privacy Act (BIPA) and the cases show no signs of slowing. These claims continue to vex Illinois businesses, and multi-state companies that have operations within Illinois.

Several other states have enacted biometric privacy laws, and legislation similar to the BIPA is pending in several state legislatures. Furthermore, a number of states have added biometric information to the categories of personal data that require notification under their respective breach notification laws. Local governments also have begun to regulate the use of biometric technologies. Several municipalities prohibit the use of facial recognition technology or require notice prior to the collection of biometric data. Additional states and municipalities can be expected to adopt biometric privacy measures as the expanding use of biometric technology coincides with a sharp rise in public wariness about privacy risks.

On May 5, Jackson Lewis P.C. attorneys will offer a webinar on the current state of BIPA litigation in Illinois, including trends and new theories which have been emerging from the plaintiffs’ bar. In addition, the webinar will include an overview of other state and local biometric privacy laws to help multi-state employers ensure they are compliant with the ever-growing patchwork of privacy laws throughout the United States.

Jackson Lewis attorneys also will provide insights about common compliance gaps as well as practical suggestions about how to mitigate risk to your organization, including the potential use of arbitration agreements or class action waivers.

Click here for more information, and to register: Biometric Privacy Claims: Tips to Avoid Claims and Mitigate Exposure.

In the latest court ruling to address personal jurisdiction over out-of-state opt-in plaintiffs in Fair Labor Standards Act collective actions, a federal district court in North Carolina held that it lacked jurisdiction over individuals who did not work for the defendant employer within the state, were not hired in the state, or whose employment with the defendant was not otherwise related to the state. In so ruling, the court determined that the U.S. Supreme court’s decision in Bristol-Myers Squibb Co. v Superior Ct. of Cal, 137 S. Ct. 1773 (2017), applies to FLSA collective actions. Speight v. Labor Source, LLC, No. 4:21-CV-112. (E.D.N.C. Apr. 19, 2022).

In Bristol-Myers Squibb Co., the Supreme Court held that a federal court in California lacked jurisdiction over out-of-state plaintiffs in a mass tort action. Since that decision, federal courts have had to grapple with whether the holding applies to collective actions brought under Sec. 216(b) of the Fair Labor Standards Act (FLSA), and to class action suits brought under Rule 23 of the Federal Rules of Civil Procedure. Several federal circuit courts of appeal have weighed in—offering conflicting precedents—but the U.S. Court of Appeals for the Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia) has yet to address Bristol-Myers, either under the FLSA or in the context of Rule 23 class actions.

The lawsuit

Billy Speight brought a putative collective action against Labor Source, LLC, a staffing agency that provides laborers for project work, which has offices in several states and a principal office in Kansas. Speight, a North Carolina resident, was hired in the agency’s Goldsboro, North Carolina office and worked on projects in North Carolina and other states over the brief course of his employment. Speight filed an FLSA suit and sought to conditionally certify a nationwide collective of current and former staffing agency employees. Arguing that the court did not have jurisdiction over the claims brought on behalf of potential opt-in plaintiffs outside North Carolina, Labor Source filed a partial motion to dismiss.

The district court granted the employer’s motion as to the claims of potential opt-in plaintiffs whose claims did not arise out of activities within the state, concluding that Bristol-Myers applies to FLSA collective actions.

Plaintiffs’ unsuccessful arguments

The plaintiffs contended that Bristol-Myers requires the court to focus on the “suit” as a whole rather than the individual “claim” in evaluating personal jurisdiction and that in FLSA collective actions, there is no need for an independent bases to exercise personal jurisdiction over a defendant as to opt-in plaintiffs. The court rejected this reasoning.

The court also rejected the plaintiffs’ argument that the Fourteenth Amendment’s “minimum-contacts” standard (the animating legal question in Bristol-Myers) applies only to states. Bristol-Myers had left open the question whether the Fifth Amendment, which applies to federal court jurisdiction, contains the same jurisdictional restrictions that the Fourteenth Amendment imposes on state courts. The district court, however, observed that “the Fourth Circuit has consistently counseled that the Fourteenth Amendment’s constraints on the forum state’s courts’ exercise of personal jurisdiction are pertinent to the personal jurisdiction inquiry for a federal court in that state[.]”

Also rejected: the plaintiffs’ assertion that the FLSA’s remedial purpose warrants the court’s exercise of jurisdiction over out-of-state opt-in plaintiffs.

Fourth Circuit courts are divided

Although the district court in Speight found that Bristol-Myers applies to FLSA collective actions, the same court has held that the Bristol-Myers holding does not apply in Rule 23 class actions (Hicks v. Houston Baptist University, E.D.N.C. 2019). (Several other district courts within the circuit have found Bristol-Myers inapplicable in the Rule 23 context as well.) However, the court in Speight explained that FLSA collective actions are “instructively distinguishable from the nature of a Rule 23 class action.” The court observed the “distinct statutory scheme” of the FLSA’s opt-in requirement and saw the distinction as a reason to require that opt-in plaintiffs “must present independent, sufficient bases for exercise of the court’s specific personal jurisdiction over that claim in reference to the defendant.”

Because the question of whether federal courts can exercise jurisdiction over out-of-state parties in class and collective actions has taken on growing significance, it’s likely the Fourth Circuit will be pressed into addressing the issues and resolving the internal circuit split.

For employers, 2021 was a challenging year. The post-election landscape, evolving federal and state law, and the effects of a seemingly endless global pandemic created a difficult business climate. Efforts to contain the spread of COVID-19 were met with stiff resistance — legal and otherwise; still, employers persist in earnest to maintain their operations safely and efficiently. However, 2021 brought other important, non-COVID-19 developments as well.

Our latest issue of the Class Action Trends Report offers a snapshot of the most significant employment-related class action activity from the tumultuous year. We look at vaccine mandate litigation, significant procedural decisions, wage and hour suits, and the continuing rise of cases brought under the California Private Attorneys General Act and Illinois Biometric Information Privacy Act, among other litigation trends.

Click here for the Winter 2022 Class Action Trends Report.


Do you have feedback on this issue? Is there a topic you would like to see in a forthcoming Class Action Trends Report? Contact the editors.

A new law making predispute arbitration agreements and class action waivers covering sexual assault and sexual harassment claims invalid and unenforceable has passed in Congress and is headed to President Joe Biden’s desk.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 amends the Federal Arbitration Act (FAA) to give employees who are parties to arbitration agreements with their employers the option of bringing their claims of sexual assault or sexual harassment in arbitration or court. President Biden reportedly is expected to sign it shortly.

See our Jackson Lewis legal alert for more details on the legislation, including a discussion of what employers need to know.

In its 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of Cal., the U.S. Supreme Court held that a state court could not exercise specific personal jurisdiction over nonresident plaintiffs’ claims against a nonresident company. Left unresolved by the Court was whether its decision, handed down in a mass tort action, applied to class actions under Federal Rule of Civil Procedure 23 and whether it applied to collective actions, as authorized by the Fair Labor Standards Act Section 216(b) and the Age Discrimination in Employment Act.

In the intervening years, federal district courts have issued conflicting rulings on Bristol-Myers’ applicability to each. In 2021, several federal appeals courts weighed in. Now, with a January 13, 2022, decision by the U.S. Court of Appeals for the First Circuit, a circuit split exists with respect to the applicability of Bristol-Myers to collective actions.

In Waters v. Day & Zimmermann NPS, Inc., the First Circuit affirmed a Massachusetts federal court’s order denying an employer’s motion to dismiss out-of-state opt-in plaintiffs for lack of personal jurisdiction. Hearing the case on an interlocutory appeal, a divided panel held that nonresident employees could join an FLSA overtime collective action.

Leaders of our Class Actions and Complex Litigation Practice Group discuss the First Circuit decision here.

The U.S. House of Representatives on November 19, 2021, passed the Build Back Better Act (H.R. 5376), ambitious climate protection/social spending legislation that now awaits deliberation in the Senate. Tucked inside the massive bill are numerous provisions of interest to employers. One such provision would amend the National Labor Relations Act (NLRA) to make it an unfair labor practice for an employer to require employees to waive the right to initiate or join a class or collective action. Coupled with an additional provision that would impose steep civil monetary penalties for violations of the NLRA, the bill effectively may prohibit employers from adopting class and collective action waivers.

It is questionable whether the bill would pass the Senate with these provisions intact; if it does, however, the Build Back Better Act would usher in a harsh class action litigation climate for employers.

Read more here.

 

 

The Fall 2021 edition of the Jackson Lewis Class Action Trends Report looks at the class action risks that arise as employers navigate return-to-work during this precarious stage of the COVID-19 pandemic. Employee symptom screening, mask and vaccine mandates, returning reluctant remote workers to the office–all pose operational challenges as well as potential exposure to classwide liability.

In this issue, we also survey the COVID-19 litigation landscape, reviewing class actions filed since the onset of the pandemic and the most recent complaint filings.

Read it here: Fall 2021 Class Action Trends Report

 

 

 

The right of plaintiffs to sue for technical violations of the Fair Credit Reporting Act (FCRA) and other federal privacy laws has been the subject of much class litigation in recent years. The U.S. Supreme Court addressed this increasingly salient issue in Spokeo, Inc. v. Robins, 578 U. S. 330 (2016). “‘Article III standing requires a concrete injury even in the context of a statutory violation,’” the Spokeo Court explained.

Now, the Court has held in a sharply divided 5-4 decision that consumers whose inaccurate credit files were released to third parties by a credit reporting agency suffered a concrete reputational injury and, therefore, had standing to bring claims that the credit reporting agency failed to ensure the accuracy of its credit records. TransUnion LLC v. Ramirez, No. 20-297 (June 25, 2021). However, consumers whose inaccurate credit reports were not disseminated to third parties did not suffer cognizable harm and lacked standing to sue.

The takeaway: “A statutory violation, without more, will not allow an individual entrance to federal court,” note Stephanie L. Adler-Paindiris, co-leader of the firm’s General Litigation Practice Group, and Jason Selvey, a principal in the firm’s Chicago office who regularly defends FCRA cases. In their analysis of the Court’s decision, they write: “TransUnion should strengthen arguments regarding standing in certain employment cases and class actions. In recent years, many employment class actions have been premised on technical statutory violations. Examples include actions alleging defective FCRA notices issued when conducting preemployment background checks, defective COBRA election notices, and violations of state privacy laws. Employers defending such actions may be able to show that some or all of the employees alleging these mere technical violations have not suffered any concrete harm and, therefore, their claims should be dismissed.”

It was a class action case that captured the attention of sports fans across the country: The United States Supreme Court agreed to tackle the issue of “amateurism” in collegiate sports, and the extent to which the National Collegiate Athletic Association (NCAA) could limit the education-related benefits that institutions of higher education within the NCAA umbrella could pay to student athletes without violating federal antitrust laws. In a unanimous June 21, 2021, decision in NCAA v. Alston, the Justices held that the NCAA restrictions at issue amounted to an unlawful restraint of trade.

In a recent blog post, Gregg E. Clifton, a Principal in the Phoenix office of Jackson Lewis and Co-Leader of the firm’s Collegiate and Professional Sports Practice Group, gives a detailed analysis of the Supreme Court’s decision, the sweeping view articulated by Justice Kavanaugh in his concurrence, and the larger context of the decision and its impact on college athletics.

Read Gregg’s analysis here.