Employment Class and Collective Actions

Name: Employment Class and Collective Actions | Proceedings of the New York University 56th Annual Conference on Labor
Brand: Kluwer Law International
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Proceedings of the New York University 56th Annual Conference on Labor

David Sherwyn(Editor)

Kluwer Law International (Publisher)

Published on 15. January 2009

1188 pages

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Long regarded as a powerful means to seek individual damages against a corporate defendant, class actions have become a staple of the U.S. litigation system. In recent years, however, several highly significant Supreme Court decisions have weakened the commonality claims of defendants, particularly in workplace discrimination actions. In light of this background, the trends and prospects of employment class actions were the theme of the 56th annual proceedings of the prestigious New York University Conference on Labor, held in May 2003. This important volume reprints the papers presented at that conference, as well as some additional contributions. Among the considerable expertise brought to bear on this controversial subject, readers will find insightful analysis of such issues as the following: Effect of class actions on losing companies; Importance of class actions to Title VII enforcement; Obstacles to class litigation; Compliance and internal enforcement challenges for large employers; Opt-in vs. opt-out alternatives for class members; Value and effectiveness of pattern or practice test cases; Legal limits of group identity; Shifting of the burden of proof; Authority of arbitrators to proceed on a class wide basis; and Countering statistical claims of expert witnesses. Because class actions are based on tension - that between commonality and individuation - they tend to accumulate precedent along a spectrum from disconnected disparity to meaningful resolution. In this deeply informed and thought-provoking book, lawyers and academics concerned with both the interests of employers and of employees will proceed with increased awareness as they work on reconciling the practical and theoretical constraints of class litigation.

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Content

Intro
Title page
Copyright page
Contents
Center for Labor and Employment Law at New York University School of Law
Editor's Preface
Chapter 1: The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and Its Effects
1.1 Introduction
1.2 The Empirical Study
1.2.1 The Hypothesis
1.2.2 The Data
1.2.3 The Statistical Analysis
1.2.3.1 The Results
1.2.3.2 Explaining the Statistical Analysis
1.3 Do the Lawsuits Produce Meaningful Change? Three Case Studies
1.3.1 Texaco: The Public Relations Model
1.3.1.1 The Lawsuit and the Tapes
1.3.1.2 Texaco's Progress
1.3.2 Home Depot: The Recalcitrance Model
1.3.2.1 The Case
1.3.2.2 The Aftermath
1.3.2.3 Denny's: The Reform Model
1.3.2.3.1 The Cases
1.3.2.3.2 Denny's Reform Efforts
1.4 The Benefits and Effects of Class Action Litigation
1.4.1 The Plaintiffs: Do They Come out Ahead?
1.4.1.1 Structural Reforms after the Civil Rights Act of 1991
1.4.1.2 Monetary Relief
1.4.1.3 Diversity Initiatives
1.4.2 Corporations and Class Action Litigation
1.4.2.1 The Nature of Discrimination and its Reform
1.4.2.2 The Deterrence Hypothesis: Do the Lawsuits Deter Discrimination?
1.4.2.3 Will the Market Drive out Discrimination?
1.4.3 Reforming the Process
1.4.3.1 Higher Damages Should Be Available
1.4.3.2 Restoring Public Accountability to Class Action Litigation
1.5 Conclusion
Chapter 2: Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment
2.1 Introduction
2.2 Procedure for Settlement
2.3 Methodology
2.4 Findings
2.4.1 General Findings
2.4.2 Findings by Type of Claim
2.4.2.1 Discrimination Claims
2.4.2.2 FLSA and State Wage-Hour Claims
2.4.2.3 ERISA Claims
2.4.2.4 Other Claims
2.4.3 Observations about Attorney Fees
2.4.4 Findings by State of Settlement
2.4.5 A Brief Comparison of Our Results to Recent Studies of Individual Recoveries in Arbitration
2.5 Conclusion
Chapter 3: Class and Representative Actions
3.1 Introduction
3.2 Necessity of Following Class Procedures before Granting Class Relief
3.3 Rule 23 Class Actions
3.3.1 Suitability of the Issues for Class Treatment
3.3.2 Suitability of the Class Representative
3.3.3 Discretion to Consider Factors Not Specified in Rule 23
3.3.4 Numerosity under Rule 23(a)(1)
3.3.5 Commonality under Rule 23(a)(2)
3.3.6 Typicality under Rule 23(a)(3)
3.3.7 Adequacy of Representation under Rule 23(a)(4)
3.3.8 Acting and Refusing to Act on Common Grounds under Rule 23(b)(2)
3.3.9 Predominance of Class Questions and Superiority of Class Treatment under Rule 23(b)(3)
3.3.10 'Hybrid' Class Actions under Rules 23(b)(2) and 23(b)(3)
3.3.11 Adequacy of Notice under Rule 23(e)
3.4 Settlement Classes
3.5 Changes in Class Certification and Definition
3.6 Individualized Relief for Class Members
3.7 Class Actions Seeking Common-Law Damages
3.8 Opt-Outs from Rule 23 Class Actions
3.9 Representative Actions
3.10 Rule 23(f) Appeals of Decisions Granting or Denying Class Certification
3.11 Appealability of Class Determination
3.12 Judicial Approval of Class Settlements
3.13 Conclusiveness of Class Settlements, Decrees, and Decisions on the Merits
3.14 Changes in the Class Action Rules
Chapter 4: Fighting to Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo's Predomination Requirement Threatens to Undermine Title VII Enforcement
4.1 Introduction
4.2 The Development of the Circuit Conflict over the Interpretation of Rule 23's Predomination Requirement after the Enactment of the Civil Rights Act of 1991
4.2.1 The Central Role of Rule 23(b)(2) Certification in Civil Rights Enforcement
4.2.2 The Impact of the Civil Rights Act of 1991
4.2.3 Allison v. Citgo
4.2.4 Robinson v. Metro-North
4.2.5 Hybrid Approaches to Class Certification
4.2.6 The Supreme Court's Due Process Concerns
4.3 The Restrictive Interpretation of the Predomination Requirement Threatens to Undermine Civil Rights Enforcement
4.3.1 Fewer Employment Discrimination Class Actions Will Be Certified
4.3.2 Fewer Monetary Damages Will Be Awarded to Those Who Deserve Them
4.3.3 Plaintiffs Will Have to Meet the More Rigorous and Costly Certification Standards of Rule 23(b)(3)
4.4 The Robinson Ad Hoc Balancing Test Is a Superior Predomination Test for the Enforcement of Title VII
4.5 The Impact of Recent Legislation on Preventing Potential Judicial Abuse of Class Certification
4.5.1 Amended Rule 23
4.5.2 The Class Action Fairness Act of 2005
4.6 Conclusion
Chapter 5: The Uncertain Future of Title VII Class Actions after the Civil Rights Act of 1991
5.1 Introduction
5.2 Title VII and the Civil Rights Act of 1991
5.3 The Rule 23 Requirements for Class Actions
5.4 Title VII Class Actions before the Civil Rights Act of 1991
5.5 Title VII Class Actions after the Civil Rights Act of 1991
5.5.1 The 23(b)(2) Class: The Problems of Predominance and Opt-Out Rights
5.5.1.1 Rule 23(b)(2) and Money Damages
5.5.1.2 The Allison v. Citgo Approach
5.5.1.3 The Allison Dissent and the Issue of Back Pay
5.5.1.4 Other Appellate Views: Jefferson v. Ingersoll International, Inc. and Lemon v. International Union of Operating Engineers
5.5.1.5 Other Post-1991 Cases Restricting 23(b)(2) Certification
5.5.1.6 Post-1991 Cases Granting 23(b)(2) Certification
5.5.1.7 Forgoing Money Damages: Zachery v. Texaco
5.5.1.8 The End of the 23(b)(2) Title VII Class?
5.5.2 23(b)(3) Classes - Commonality, Manageability, and Negative Value
5.5.2.1 Commonality
5.5.2.2 Manageability
5.5.2.3 Negative Value
5.5.3 Procedural and Constitutional Problems of Bifurcation and Partial Certification
5.5.3.1 Procedural Issues
5.5.3.2 The Integrity of Rule 23
5.5.3.3 Constitutional Issues
5.5.3.4 The Allison Denial of Rehearing
5.5.4 The Problem of the Blackmail Class
5.6 For Better or for Worse?
5.7 Conclusion
Chapter 6: A Classless Act: The Ninth Circuit's Erroneous Class Certification in Dukes v. Wal-Mart, Inc.
6.1 Introduction
6.2 Dukes v. Wal-Mart: An In-Depth Overview
6.3 Rule 23
6.3.1 An Overview
6.3.2 Commonality
6.3.3 Typicality
6.4 The Court's Decision in Dukes v. Wal-Mart
6.4.1 The Finding of Commonality
6.4.2 The Typicality Finding
6.5 The Court's Use of Expert Witnesses and the Lack of a Daubert Analysis
6.6 The Court's Decision Regarding Title VII Issues
6.7 Blackmail Settlements
6.8 A Proposed Guide for Certifying Employment Class Actions
6.9 Conclusion
Chapter 7: Too Many Riches? Dukes v. Wal-Mart and the Efficacy of Monolithic Class Actions
7.1 Introduction
7.1.1 Addendum
7.2 Class Actions Generally
7.2.1 Rule 23
7.2.2 Class Action Manageability
7.2.3 Certification Decisions
7.3 The Case at Bar: Dukes v. Wal-Mart
7.4 The Sheer Size of the Proposed Class Is Not Determinative of the Efficacy of the Action
7.5 Dukes v. Wal-Mart Should Be Maintained under Rule 23
7.6 Conclusion
Chapter 8: The Possibility of Avoiding Discrimination: Considering Compliance and Liability
8.1 Introduction
8.2 Litigation Trends: Dukes and Other Challenges to Entrenched Stereotypes
8.2.1 Statistical Disparities, Centralized Policies, and Stories of Bias at Wal-Mart
8.2.2 Potential for Challenging Culturally Entrenched Stereotypes
8.3 Avoiding Litigation Liability: What Should Employers Do?
8.3.1 Quotas and Objective Testing: The Defendants' Parade of Horribles
8.3.2 Best Practices?: Workplace Policies that May Reduce the Negative Effects of Stereotype and Bias and Limit the Risk of Liability
8.3.2.1 Advertising and Posting Positions
8.3.2.2 Establishing Written Standards
8.3.3 Establishing Antidiscrimination Policies and Education
8.3.3.1 Monitoring and Ensuring Accountability
8.3.4 What if Compliance Does Not Work?
8.4 Conclusion
Chapter 9: Preclusion in Class Action Litigation
9.1 Introduction
9.2 Defining the Problem
9.2.1 The Cooper Case
9.2.2 Conflicts of Interest
9.2.2.1 Title VII and the Civil Rights Act of 1991
9.2.2.2 Tort Class Actions
9.2.3 Representation and Strategic Litigation Choices
9.2.3.1 Stay-in-State-Court Suits
9.2.3.2 Unpled Equitable Claims
9.3 The Structure of Preclusion Analysis
9.3.1 A Positive Law Account of Preclusion Doctrine
9.3.1.1 Preclusion as a Rule of Decision
9.3.1.2 The Components of Preclusion Analysis
9.3.1.3 Settlement and Preclusion
9.3.2 Tools of Limitation in Class Action Proceedings
9.3.2.1 Constraining a Judgment's Preclusive Effect
9.3.2.1.1 Constraints Relating to a Parallel Proceeding
9.3.2.1.2 Constraints Relating to a Specific Cause of Action
9.3.2.1.3 Constraints Relating to the Entire Action
9.3.2.2 The Seventh Amendment and Reexamination
9.3.2.3 Alternative Mechanisms for Addressing Preclusion Problems
9.3.2.3.1 Subclasses
9.3.2.3.2 Notice and Opt-Out
9.3.2.4 The Incentives of Counsel and the Need for Judicial Supervision
9.4 Harmonizing Joinder and Preclusion Policies
9.4.1 Preclusion Policies
9.4.2 Sources of Law and the Rules Enabling Act
9.5 The Role of the Recognizing Forum
9.6 Conclusion
Chapter 10: Opt-In Class Actions: Collective Litigation under the FLSA, ADEA, and EPA
10.1 Collective Litigation under the FLSA, ADEA, and EPA
10.1.1 Similarities and Differences between Class Actions and Collective Actions
10.1.1.1 Class Actions under Rule 23
10.1.1.2 Collective Actions under 29 U.S.C. § 216(b)
10.1.1.3 The Applicability of Rule 23 to Collective Actions
10.1.1.4 The Legal Differences between Rule 23 Class Actions and § 216(b) Collective Actions
10.1.1.4.1 The Need to Opt-In
10.1.1.4.2 Notice to Class or Collective Action Members of Dismissal of Claims
10.1.1.4.3 Tolling the Statute of Limitations
10.1.1.5 The Legal Similarities between Rule 23 Class Actions and § 216(b) Collective Actions
10.1.2 The Three-Step Process through Which Nationwide Collective Actions Are Born
10.1.2.1 The Supreme Court's Treatment of Notice in § 216(b) Actions
10.1.2.2 The 'Similarly Situated' Requirement of § 216(b)
10.1.2.2.1 Initially Determining 'Similarly Situated' Is a Minimal Burden
10.1.2.2.2 The 'Two-Tiered' System of Similarly Situated
10.1.2.2.3 A Minimal Burden, but a Burden Nonetheless
10.1.2.2.4 District Courts Have Broad Discretion
10.1.2.3 Discovery Permitted to Assist in the Notice Process
10.1.2.3.1 Allowing Plaintiffs to Discover Names, Addresses, and Other Information about Defendant's Current and Former Employees to Support Allegations that Potential Plaintiffs Are Similarly Situated and that Notice Is Warranted
10.1.2.3.2 Types of Information Found to Be Discoverable
10.1.2.3.3 Discovery of Names and Addresses
10.1.2.4 Approaches to Arguing in Favor of Notice
10.1.2.4.1 Notice Permitted Based Solely on Class-Wide Allegations of Illegality
10.1.2.4.2 Notice Permitted Based upon Allegations and Supporting Proof
10.1.2.5 Arguments that Can Be Used to Oppose the Sending of Notice
10.1.2.5.1 Challenges to Allegations Made without Supporting Evidence that a Potential Class Exists
10.1.2.5.2 Challenges Based upon the Argument that a Representative Plaintiff is Not Similarly Situated to Putative Class Members, or because Individualized Facts Would Apply to Each Plaintiff
10.1.2.5.3 Challenges Based on Geographic Factors, Such as No Evidence of Nationwide, Statewide, or Class-Wide Wrongdoing
10.1.2.5.4 Challenges Based upon Factual Differences in Pay Status, Job Requirements, Duties, Departments, Etc.
10.1.2.5.4.1 Limits Based upon Different Job Requirements or Duties
10.1.2.5.4.2 Limits Based upon Different Pay Provisions
10.1.2.5.5 Other Bases for Challenges
10.1.2.5.6 Temporal Limits (Statute of Limitations) upon the Scope of Discovery or Notice
10.1.2.6 Other Miscellaneous Points about Notice
10.1.2.6.1 Nondisclosure Agreements and the Attorney-Client Privilege
10.1.2.6.2 Potentially Applicable Local Rules of Civil Procedure
10.1.3 Communication with Class Plaintiffs
10.1.3.1 Generally
10.1.3.2 Special Considerations Regarding Communication with Managerial Employees
10.1.4 FLSA Statute of Limitations
10.1.4.1 Two-Year Statute of Limitations for Non-willful Violations
Three-Year Statute of Limitations for Willful Violations
10.1.4.2 When the Statute of Limitations Runs
10.1.4.2.1 Generally
10.1.4.2.2 No Relation Back
10.1.4.2.3 Continuing Violations
10.1.4.3 Tolling the Statute of Limitations
10.1.4.3.1 Tolling, Generally
10.1.4.3.1.1 Conduct that May Toll the Statute
10.1.4.3.1.2 Employer Conduct that Has Been Held Not to Give Rise to Tolling
10.1.4.3.2 Plaintiffs' Burden
10.1.4.4 Attorneys' Fees
10.1.4.4.1 The General Rule
10.1.4.4.2 Method(s) of Calculating Fees Generally
What Is a 'Reasonable' Fee?
10.1.4.4.2.1 The 'Lodestar' Approach
10.1.4.4.2.2 The 'Common Fund' Approach
10.1.4.4.3 What Is Reasonable?
10.1.4.4.4 Is a Settlement in an FLSA Collective Action a Common Fund?
10.2 Overview of FLSA Cases: An Increasing Favorite of the Plaintiffs' Bar
10.2.1 Enterprise Rent-A-Car
10.2.2 Chapter Albertson's
10.2.3 Longs Drug Stores
10.2.4 Wal-Mart
10.2.5 Prudential
10.2.6 Sbarro
10.2.7 Paine Webber
10.2.8 Dean Witter
10.2.9 Saipan Class Action
10.2.10 Hooters Restaurants
10.2.11 Perdue Farms, Inc.
10.2.12 Aetna Services, Inc.
Chapter 11: Not without Class: Test Cases in Lieu of Class Certification as a Paradigm for Litigating Multi-plaintiff Harassment Cases
11.1 Introduction
11.2 Defining the Terms 'Test Cases' and 'Bellwether Trials'
11.2.1 Test Case
11.2.2 Bellwether Trial
11.3 Legal Authority Supporting Test Cases
11.4 Putting the Test Case Approach to Work
11.5 Collateral Estoppel and the Test Case Model
11.6 Punitive Damages and the Test Case Model
11.7 Enhanced Settlement Prospects under the Test Case Model
11.8 Conclusion
Chapter 12: 'Pattern or Practice' Discrimination Litigation
12.1 Introduction
12.2 Origins of Pattern or Practice Theory
12.3 Pattern or Practice Litigation by the EEOC and Private Plaintiffs
12.4 Can a Pattern or Practice Theory be Asserted in Discriminatory Harassment Claims?
Chapter 13: Disability, Disparate Impact, and Class Actions
13.1 Introduction
13.2 Title VII Group-Based Discrimination Theories
13.2.1 Disparate Impact Theory
13.2.2 Panethnicity and Class Actions
13.2.3 Judicial Erosion of Collective Action
13.3 The Ordinary Course of ADA Claims
13.3.1 Failure to Accommodate
13.3.2 Missed Potential
13.4 The ADA as Group-Based Discrimination
13.4.1 Pandisability Theory
13.4.2 The Class Action Device
13.4.3 Challenging Workplace Norms
13.5 Conclusion
Chapter 14: Collective and Class Action Issues under the Fair Labor Standards Act and State-Based Wages Statutes
14.1 Litigation Issues
14.1.1 Representational Evidence or Sampling
14.1.2 Administrative Exemption
14.1.3 Class and Collective Action Certification of Wage-Hour Claims
14.1.3.1 FLSA Collective Action Certification
14.1.3.2 State-Law-Based Class Action Certification
14.1.4 Seventh Amendment Considerations
14.2 Regulatory Issues
14.2.1 Introduction
14.2.2 Minimum Salary Bar Raised
14.2.3 'Duties' Tests Loosened for White-Collar Exemptions
14.2.3.1 Administrative Employees
14.2.3.2 Professional Employees
14.2.3.3 Executive Employees
14.2.3.4 Outside-Sales People
14.2.4 New USD 65,000 Rule for 'Highly Compensated Employees'
14.2.5 Salary Deductions and the Salary Basis Test
14.2.6 Changes in Size of Covered Populations
14.2.7 Conclusion
Chapter 15: Working with the Equal Employment Opportunity Commission
15.1 Introduction
15.2 The EEOC's Case Selection
15.3 Advantages of Litigating with the EEOC
15.3.1 Avoid Rule 23
15.3.2 Expand the Scope of the Case
15.3.3 Avoid Confidentiality Provisions
15.3.4 Increase Credibility
15.3.5 Invoke Fear of Uncle Sam
15.3.6 Negotiate Systemic Changes
15.3.7 Gain Expertise
15.3.8 Increase Media Interest
15.3.9 Get More Hands at No Cost
15.4 Disadvantages of Litigating with the EEOC
15.4.1 Too Many Chefs in the Kitchen
15.4.2 Government Bureaucracy
15.4.3 Culture Clash
15.4.4 Different Goals and Rewards
15.4.5 Consensus on Settlement
15.4.6 Perception of the EEOC
15.5 Conclusion
Chapter 16: Green Tree v. Bazzle in the Supreme Court: 'How to Succeed in Blocking Class Actions in Arbitration without Really Saying So'
16.1 Introduction and Summary
16.2 The Debate over Class Arbitration
16.3 The State Court Proceedings
16.4 The South Carolina Supreme Court Decision
16.5 Does the FAA Preempt Application of State Class Action Procedures to a Silent Arbitration Agreement? Does the FAA Federalize Interpretation of Arbitration Agreements?
16.5.1 Does the FAA Preempt Disapproval of Express Class-Action Bans Based on State Unconscionability Law?
16.5.2 Class Action Procedures Are Not Incompatible with Arbitration
16.6 Conclusion
Chapter 17: Arbitration Agreements, Unconscionability, and Bans on Class Actions: Dueling Magic Wands? The California Experience
17.1 Introduction
17.2 Green Tree Financial Corp. v. Bazzle
17.3 The California Approach: Where the Agreement Is Silent
17.4 Where Class Action Arbitrations Are Expressly Forbidden - The Two Discover Bank Cases
17.5 The Future
Chapter 18: When Is Cost an Unlawful Barrier to Alternative Dispute Resolution? The Ever Green Tree of Mandatory Employment Arbitration
18.1 Introduction
18.1.1 Statement of Research Question
18.1.2 Organization of This Article
18.2 The Growth of Mandatory Employment Arbitration
18.2.1 Some Courts Refuse to Enforce Mandatory Arbitration Agreements that Impose Unfair Procedures on Employees
18.2.2 Some Courts Reject or Revise Mandatory Agreements that Shift Forum Costs to Employees
18.2.3 Some Courts Reject or Revise Mandatory Agreements because They View the ADR System as Flawed by Comparison to Voluntary Labor Arbitration
18.3 The Allocation of Costs in Arbitration
18.3.1 Elements of Cost in Arbitrating Employment Disputes
18.3.2 The Supreme Court's Regulation of Arbitration Costs
18.4 Research Literature and Methods
18.4.1 Research Literature
18.4.2 Research Methods
18.5 Empirical Results: How Federal Courts Rule on Cost-Allocation Challenges to Mandatory Employment Arbitration
18.6 Appellate Decisions Adopt Divergent Theories: Forum Substitution Versus Comparative Cost of Litigation
18.6.1 What Is a Cost Case?
18.6.2 Appeals Courts that Accept Cost Arguments: Forum Substitution Theory and Lower-Wage Workers
18.6.2.1 The U.S. Court of Appeals for the D.C. Circuit: Cole v. Burns International Security Services
18.6.2.2 The U.S. Court of Appeals for the Tenth Circuit: Shankle v. B-G Maintenance Management of Colorado, Inc.
18.6.2.3 The U.S. Court of Appeals for the Eleventh Circuit: Perez v. Globe Airport Security Services, Inc.
18.6.3 Appeals Courts that Reject Cost Arguments: Comparative Cost of Litigation Theory and Higher-Wage Employees
18.6.3.1 The U.S. Court of Appeals for the First Circuit: Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
18.6.3.2 The U.S. Court of Appeals for the Seventh Circuit: Koveleskie v. SBC Capital Markets, Inc.
18.6.4 Appeals Courts that Use a Case-by-Case Approach to Cost Arguments
18.6.4.1 The U.S. Court of Appeals for the Fourth Circuit: Bradford v. Rockwell Semiconductor Systems, Inc.
18.6.4.2 The U.S. Court of Appeals for the Third Circuit: Blair v. Scott Specialty Gases
18.7 Conclusions
Chapter 19: Arbitration and the Individuation Critique
19.1 Introduction
19.2 The Individuation Critique
19.2.1 Automatic Claims Aggregation and the Presumed Repeat-Player Advantage
19.2.2 Repeat-Player Lawyers and the Benefits of Aggregation
19.2.3 Aggregation of Consumer Claims
19.2.4 The Individuation Critique
19.2.4.1 Does Arbitration Individuate Claiming?
19.2.4.2 The Potential Moderating Effect of ADR Provider Rules
19.2.4.2.1 Reasoned versus Summary Awards
19.2.4.2.2 Remedies Available in Arbitration
19.2.4.2.3 Limits on the Right to Bring or Participate in a Class Action
19.2.4.3 Summary
19.3 Rethinking the Ability to Aggregate Disputes in Arbitration
19.3.1 Class Arbitration as a Laboratory for Innovation in Formal Aggregation
19.3.2 Aggregation in Individual Disputes
19.3.2.1 Reduced Cost
19.3.2.2 Development of Precedent
19.3.2.3 Facilitating Award Collection
19.3.2.4 Punitive Damages and Other Remedies
19.3.2.5 Summary
19.3.3 The Effect and Evolution of Provider Rules
19.4 Conclusion
Chapter 20: Building an Internal Defense Against Class Action Lawsuits: Human Resources Practices Audits
20.1 Introduction
20.2 Class Actions and Specific Federal Statutory Claims
20.2.1 The Civil Rights Act of 1964, Title VII
20.2.2 The Americans with Disabilities Act and the Rehabilitation Act
20.2.3 The Fair Labor Standards Act
20.2.4 The Age Discrimination in Employment Act of 1967
20.2.5 The Equal Pay Act
20.2.6 The Employee Retirement Income Security Act
20.3 Avoiding Disparate Impact Class Action Lawsuits
20.3.1 The Nature and Danger of Disparate Impact Suits
20.3.1.1 The Under-Utilization Analysis
20.3.1.2 The 80% Benchmark Rule
20.3.2 Preventing Disparate Impact Suits: How to Uncover Unseen Potential Disparate Impact Liability in an Organization
20.3.2.1 Restriction of Job Advertising to Local Newspapers
20.3.2.2 Requirement that Applicants Meet Certain Minimum Educational Requirements
20.3.2.3 Reliance upon Subjective Personal or Family Ties as Hiring Criteria
20.3.2.4 Some Tips on Avoiding Disparate Impact Discrimination Claims
20.4 Avoiding Wage and Hour, Sexual Harassment, and ERISA Class Action Liability
20.4.1 Wage and Hour Claims under the FLSA
20.4.2 Sexual and Other Workplace Harassment Claims
20.4.3 ERISA Claims
20.5 Human Resources Audits
20.6 Conclusion
Chapter 21: 'Statistical Dueling' with Unconventional Weapons: What Courts Should Know about Experts in Employment Discrimination Class Actions
21.1 Introduction
21.2 Statistical Evidence in Second-Generation Class Actions
21.2.1 The Historical Doctrinal Approach to Discrimination Class Actions
21.2.2 The Current Conflict over Decentralization and Discretion
21.2.3 Second-Generation Classes and Shifting Fact Patterns
21.3 The Meaning of Statistical 'Patterns': A Demonstration of the Statistical Power Problem
21.3.1 Smith, et al. v. UFS: A Hypothetical Gender Discrimination Class Action
21.3.2 Who's Got the Power: A Simulation Exercise
21.4 Conclusion: Recommendations for Courts
Chapter 22: Symposium: Emerging Issues in Class Action Law: Backdoor Federalization
22.1 Introduction
22.2 Matrix: 'Substantive Law' by 'Procedural Forum'
22.2.1 Historical Evolution: National Law for a National Market
22.2.2 Disequilibrium: Federal Courts' Role in Facilitating Transition
22.3 Preemption and Federalism
22.3.1 The Systemic Effects of Preemption
22.3.2 Federal Regulatory Regimes
22.3.2.1 Vertical Preemption
22.3.2.2 Horizontal Preemption
22.3.3 Products Liability
22.3.3.1 The Need for National Regulation
22.3.3.2 Horizontal Preemption
22.4 Forum Selection and Federalism
22.4.1 From Swift to Erie: Federal Power and the Common Law
22.4.2 The Expanding Federal Interest
22.4.3 The Federal Ingredient in State Law
22.5 Unstable Hybrids: Partial Federalization
22.5.1 The Class Action Fairness Act
22.5.2 Punitive Damages
22.5.3 Further Implications
22.6 Conclusion: The Risk of Predation
22.7 Preemption Cases in Sample (chronological listing)
Chapter 23: From 'Predominance' to 'Resolvability': A New Approach to Regulating Class Actions
23.1 Introduction
23.2 The Implications of Dissimilarity for the Litigated and Negotiated Valuation of Class Members' Claims
23.2.1 A Thought Experiment Confirming the Distorting Effect of Dissimilarity
23.2.2 Trial Distortions: Cherry-Picking, Claim Fusion and Ad Hoc Lawmaking
23.2.3 The Distorting Effects of Dissimilarity on Valuation of Class Action Settlements
23.2.3.1 Ineffective Monitoring
23.2.3.2 Tainted Bargaining
23.3 Principles that Should Shape Rules Governing the Effect of Individualized Issues on Class Certification Decisions
23.3.1 The Finality Principle: A Certified Class Action Seeking Damages Should Eventually Result in a Judgment Resolving the Claims of All Class Members
23.3.2 The Fidelity Principle: A Class Member Should Not Receive a Favorable Judgment Unless He or She Can Prove the Substantive Elements for a Cause of Action and Survive Any Applicable Defenses
23.3.3 The Feasibility Principle: Attempts to Adjudicate Class Actions Should Occur within Resource and Management Constraints
23.3.4 Synthesis of the Three Principles
23.4 Inconsistencies between Class Certification Principles and Existing Class Certification Rules and Doctrine
23.4.1 The Origins and Role of the Predominance Test
23.4.2 Defects in the Predominance Concept 1113
23.4.3 The Failure of Additional Rule 23 Certification Criteria to Cure Defects in the Predominance Standard
23.4.3.1 Typicality
23.4.3.2 Manageability
23.4.4 Doctrinal Consequences of Judicial Reliance on Predominance
23.4.4.1 Doctrine De-emphasizing Individualized Damages
23.4.4.2 Doctrine Under-Weighting Individualized Defenses
23.4.4.3 Doctrine Postponing Conflict of Laws Analysis
23.5 Proposed Revision to Rule (23)(B)(3) and Implications
23.5.1 The 'Resolvability' Test
23.5.2 Avenues for Further Scholarship

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Employment Class and Collective Actions

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