Class Actions Blog

Archive for the ‘Employment Class Action’ Category

Federal pleading standards in employment class actions

Posted on: August 10th, 2010 by Jennifer Wagner

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court issued a watershed decision on pleading standards under Fed. R. Civ. Pro. 8, making clear that the familiar notice pleading standard is no longer applicable.  In Iqbal, the Court clarified that its decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007) applied to “all civil actions,” and was not limited to pleading standards in antitrust cases.  Iqbal, 129 S. Ct. at 1953.  Under Iqbal and Twombly, a complaint must now “contain sufficient factual matter” to “‘state a claim to relief that is plausible on its face.’”  Id. at 1948 (quoting Twombly, 550 U.S. at 570).  While the new “plausibility” standard is not a “probability” standard, exactly what a plaintiff must allege in any particular context to “nudge[] [his] claims … across the line from the conceivable to the plausible” (Id. at 1951) remains unclear.  Further, it leaves significant room for subjective judicial determinations as to the merit of plaintiff’s allegations. Read more…


Nationwide class action brought by pizza delivery drivers against Domino’s Pizza certified

Posted on: July 2nd, 2010 by Steve Larson

On June 21, 2010, a federal district court judge in Minnesota conditionally certified a class pursuant to the Fair Labor Standards Act (FLSA).  The FLSA allows employees to bring collective actions if they are not being paid the minimum wage.  The drivers allege that they have not been adequately reimbursed for delivery expenses and therefore have been paid less than the federal minimum wage.  Domino’s maintained that there were variations in reimbursement rates by store and to determine whether the expenses were insufficient would require individual inquiries, which should defeat the certification.  The case is important because the district court judge correctly recognized that in an FLSA action, at conditional certification, plaintiffs need only establish a colorable basis for their claim that the putative class members were the victims of a single decision, policy or plan, and plaintiffs had made a showing that Domino’s stores reimbursed according to a common policy.

Click here to read the court’s decision to certify this class action.


Ninth Circuit Reaffirms the Standard of Review for Class Certification in Dukes v. Wal-Mart

Posted on: June 17th, 2010 by Steve Larson

In Betty Dukes v. Wal-Mart, Inc., 603 F.3d 571 (9th Cir. 2010), the Ninth Circuit affirmed the certification of a class of female Wal-Mart employees who alleged that Wal-Mart discriminated against them in compensation and promotions.  The Dukes decision is newsworthy because it is the largest gender discrimination class ever certified.  Because of this, and because commentators suggest that there are substantial differences among the circuits, it is likely that the US Supreme Court will grant certiorari.

However, just because the class is large does not justify granting certiorari.  Wal-Mart is a huge employer, and just because it is a large employer should not qualify it for different treatment under the law.  Further, the purported split among the circuits is more imagined than real.  I agree with the Dukes court that consensus is rapidly emerging among the circuits, and that the statement that there are “substantial differences” in the circuits seems to create a distinction where none exists.  The majority in Dukes followed longstanding precedent when clarifying the standard trial courts must follow when considering class certification.  Although some suggest otherwise, the standard announced in Dukes is nothing really new.

Read more…


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This blog is intended to provide information to the general public and to practitioners about developments that may impact Oregon class actions.

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  • jenwagner

  • Steve Larson
  • Jennifer Wagner is a litigation lawyer who practices in the areas of complex business, employment, securities, and class action litigation. She is an associate at the law firm of Stoll Berne in Portland, Oregon.
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