Class actions

  • July 12, 2012

    by Jeremy Leaming

    New York City’s leaders, most notably its billionaire mayor, are bent on supporting a stop-and-frisk policy that according to the police department’s own numbers overwhelmingly target minorities.

    Mayor Michael Bloomberg continues to defend the policy, which allows police officers to stop-and-frisk people in the city on suspicion of criminal activity.

    Recently Bloomberg took to a church in Brooklyn to trumpet the policy, saying, “We are not going to going to walk away from a strategy that we know saves lives.” And although he went on to claim city officials would strive to carry out stop-and-frisk “properly,” he has also denigrated Philadelphia’s efforts to reform its frisking policies. “Why would anyone want to trade what we have here for the situation in Philadelphia – more murders, higher crime?” he said in May.

    But numbers regarding stops and frisks show that the policy hardly deters crime, let alone saves lives. According to statistics from the New York Police Department more than 680,000 people were stopped in 2011 and in 88 percent of the stops no arrests were made.

    The numbers do, however, show that racial profiling is taking place. Of the nearly 686,000 people stopped last year 84 percent of them were black or Latino, The Times reports. Pace University law professor Randolph M. McLaughlin told the newspaper, “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?”

    Noting that courts are increasingly assessing stop-and-frisk tactics, McLaughlin added, “And judges read newspapers too.”

    In May, U.S. District Court Judge Shira A. Scheindlin permitted a class-action lawsuit against the New York Police Department’s policy, saying she was seriously concerned about officials’ “troubling apathy towards New Yorkers’ most fundamental constitutional rights.”

  • June 20, 2012
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families


    Fairness and equal opportunity are among our nation’s most basic values. They are especially critical in the workplace due to families’ increasing dependence on the wages of both men and women. That’s why Congress has passed landmark civil rights laws designed to protect workers’ right to hold jobs and provide for their families free from harmful discrimination. Yet, just last year, the United States Supreme Court eroded that right with its decision to deny more than one million women the ability to join together to challenge the discriminatory practices of the nation’s largest private employer. Fortunately, Congress now has the chance to undo the damage. 

    The Supreme Court’s decision in Wal-Mart v. Dukes was a devastating blow to the right of all workers to combat systemic discrimination in the workplace. In short, the Court said that Betty Dukes – a female greeter at Wal-Mart who received lower pay and fewer promotion opportunities than her male co-workers – could not join with other female Wal-Mart workers to hold the company accountable for unlawful widespread discrimination through a class action lawsuit. In doing so, the decision created significant barriers to justice for future victims of discrimination.

    Now, workers who seek to challenge the widespread discriminatory practices of their employers must meet stringent new standards to show that their claims are similar enough to be joined together. This makes it more difficult for workers to challenge discrimination that occurs through the subjective judgments that often factor into personnel decisions. And it opens the door for companies to hide behind the existence of written nondiscrimination policies, despite evidence that discrimination exists in practice.

    It should not be so difficult for workers who suffer discrimination to combat unlawful employer practices and have their day in court. The Equal Employment Opportunity Restoration Act of 2012, which was introduced today, would reverse the damage done by the Wal-Mart decision and restore the right of workers to join together to challenge systemic discrimination. It is critical legislation that would give workers who suffer from unlawful practices a fighting chance.

  • March 9, 2012

    by Nicole Flatow

    The U.S. Supreme Court’s decision last year in AT&T Mobility v. Concepcion was a major blow to consumers’ ability to file class actions and hold corporations accountable. In the 5-4 decision, the majority rejected a lower court ruling that an arbitration clause was unconscionable because it barred class actions.

    But a recent federal appeals court decision that considered Concepcion as precedent may pave a way forward for litigants seeking to challenge corporate action as a class, writes Philadelphia litigator Joshua D. Wolson on The Legal Intelligencer Blog.

    In In re American Express Merchants Litig., the Second Circuit held that an arbitration clause containing a class action waiver was unenforceable. The case was twice reversed by the U.S. Supreme Court for reconsideration in light of Concepcion and another limiting Supreme Court precedent, and twice more, the court maintained its holding.

    In striking down the class action waiver, the court relied on an affidavit from an economist, which showed that no rational plaintiff would bear the cost alone of winning such a complicated antitrust case, when the potential payout was so comparatively small. 

    “The evidence presented by plaintiffs here establishes, as a matter of law, that the cost of plaintiffs' individually arbitrating their dispute with Amex would be prohibitive, effectively depriving plaintiffs of the statutory protections of the antitrust laws,” the judges wrote.

    If plaintiffs can overcome class action bans by providing affidavits from economic experts, perhaps there is a future for consumer class actions, Wolson writes. But, he cautions, “it seems likely that the Supreme Court will have the last word.”

  • February 8, 2012

    by Nicole Flatow

    The U.S. Supreme Court’s decision last term rejecting a class action gender discrimination lawsuit against Wal-Mart was seen as a major blow to corporate accountability in discrimination cases. But the case is also proving its impact in areas outside of the employment or discrimination context.

    As Greenwire’s Lawrence Hurley reports, the Wal-Mart v. Dukes decision has been cited in several environmental decisions in both federal and state court, in just the first seven months since the case came down.

    Hurley provides details on three of the decisions, all of which deny class certification to plaintiffs attempting to band together to sue large companies that they allege had contaminated their water supplies.

    “The post-Wal-Mart court rulings so far also illustrate how keen the defense bar is to make the most of the Supreme Court case,” Hurley writes, quoting Richard Samp, a lawyer at the conservative Washington Legal Foundation.

    "The decision is being cited by virtually every defendant who is opposing class certification," Samp said.

    During a Senate Judiciary Committee hearing in June on the impact of Wal-Mart and a second case decided last term, AT&T v. Concepcion, University of Colorado law professor Melissa Hart warned:

  • January 17, 2012
    Guest Post

    By Ann C. Hodges, a professor of law at the University of Richmond


    In the past 20 years the Supreme Court has interpreted the Federal Arbitration Act broadly, allowing businesses to require consumers and employees to arbitrate, rather than litigate, many legal claims. Businesses frequently use arbitration agreements to bar class actions, which can be costly and time-consuming. Just last term, in AT&T v. Concepcion, the Court enhanced this business tool, striking down a California law that prevented businesses from barring class actions in cases involving small claims brought by less powerful parties bound to arbitrate by contracts of adhesion. Although the case involved consumers, it offered employers a vehicle to restrict employee class actions.

    The NLRB’s decision in D.R. Horton, issued in early January, significantly limited the effectiveness of this tool for employers by invalidating an arbitration agreement that banned class actions. This case is likely to generate significant controversy, provoking even more attacks on the agency by its vocal critics, but experienced labor lawyers will recognize the case as an unremarkable application of long-settled legal principles.

    Class claims frequently offer the only vehicle for consumers or employees to challenge unlawful actions that cause limited damages to each individual while often reaping millions for the business. For each person injured, the cost of litigating a claim outweighs the potential benefit.  Without class actions, these claims often go unremedied. In the workplace, Fair Labor Standards Act cases seeking minimum wage or overtime payments are most likely to be abandoned on this basis and Horton involved such a claim, alleging that the nonunion employer misclassified employees as exempt from overtime pay.