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Procedural barriers to court

March 21, 2012
Supreme Court Erodes State Workers’ FMLA Rights
Guest Post
By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families

“This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.”

-- Justice Scalia’s concurring opinion in Coleman v. Maryland Court of Appeals

By a narrow majority, the U.S. Supreme Court’s decision in Coleman v. Maryland Court of Appeals – has eroded the right of millions of state workers to take job-protected leave under the Family and Medical Leave Act of 1993 (FMLA) when faced with a serious illness, injury, or pregnancy. In these tough economic times of high unemployment, the Supreme Court has dealt another devastating blow to millions of workers – making them vulnerable to losing their jobs if they need time off for medical leave. The Court ruled that states cannot be sued for monetary damages for violating the FMLA’s medical leave provision, leaving state workers with little meaningful recourse if their employers deny the self-care leave guaranteed by the plain language of the FMLA.

The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member.

Since its enactment 19 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance.

Petitioner Daniel Coleman was one such worker facing a serious illness who sought to exercise his rights to medical leave. He was working for a Maryland court when his doctor ordered bed rest. After requesting medical leave, Coleman was fired the next day. He then filed a lawsuit alleging a violation of the FMLA.

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Tags:
Procedural barriers to court, Supreme Court, Preemption, Coleman v. Maryland Court of Appeals, Daniel Coleman, Family and Medical Leave Act, family-care, FMLA, Guest Post, medical leave, monetary damages, Nevada Department of Human Resources v. Hibbs, Sarah Crawford
March 9, 2012
A Way Forward for Consumer Class Actions?
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.”

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Tags:
Access to Justice, Class actions, Procedural barriers to court, Supreme Court, Other courts, Arbitration, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, CompuCredit v. Greenwood
February 23, 2012
The Courthouse Door Stays Open, But It’s Not Over Yet
Guest Post
By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

The Supreme Court’s 5-4 decision in Douglas v. Independent Living Center, a case challenging California’s cuts in Medicaid reimbursement rates, can be summed up by the movie title: The Good, The Bad, and the Ugly. The Good is the majority’s holding that refuses to deny court access to low-income Medicaid beneficiaries who had difficulty obtaining medications and other services when California slashed rates in violation of federal law. The Bad is the narrowness of the court’s decision, which is limited to simple instructions to the lower court on remand. And the Ugly is the dissent seeking to slam the courthouse doors on the poor.

The plot (or facts) in this case bears no resemblance to the movie. When California slashed Medicaid provider rates to save money, ignoring the impact on beneficiary access to care, providers and beneficiaries sued the state. Federal Medicaid law requires states to ensure adequate access to care. So, the state laws cutting reimbursement rates conflicted with federal law. The suit alleged that the state rate cut statute was “preempted” under the Supremacy Clause of the Constitution by the contrary federal law. Businesses routinely bring preemption challenges to state laws that allegedly conflict with federal law.

The state tried to get the case thrown out of court, arguing that beneficiaries could not bring a preemption suit to enforce the Medicaid statute. But the Ninth Circuit, relying on over a century of Supreme Court cases permitting preemption cases to go forward, held that poor people have the same right to bring preemption challenges as businesses, and let the case proceed. All other Circuits to consider whether preemption is available in these circumstances were in agreement.

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Tags:
Access to Justice, Procedural barriers to court, Supreme Court, Preemption, Douglas v. Independent Living Center, Guest Post, Medicaid, Rochelle Bobroff, Supremacy Clause
February 8, 2012
Wal-Mart Decision Impacting Environmental Litigation, Greenwire Reports
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:

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Tags:
Access to Justice, Class actions, Economic inequality, Procedural barriers to court, Supreme Court, Other courts, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, AT&T Mobility v. Concepcion, Benefit Corporations, Wal-Mart v. Dukes
January 17, 2012
NLRB Decision Limiting Class Action Waivers Based on Longstanding Precedent
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.

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Tags:
Access to Justice, Administrative law, Class actions, Procedural barriers to court, Financial regulation, Arbitration, Economic, Workplace and Environment Regulation, AT&T v. Concepcion, Federal Arbitration Act, Guest Post, National Labor Relations Board, NLRB

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