Archives: Class and Collective Actions

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Innovations In Settling Wage Hour Class/Collective Actions

Settling Rule 23 opt-out class actions is straightforward: the agreed-upon settlement is presented to the court for preliminary approval of a Rule 23(e) settlement class and — if the settlement is not approved — the parties return to their pre-settlement status: i.e., there is no class. But, following the conventional wisdom on FLSA opt-in rules … Continue Reading

Antitrust Class Actions Against Employers: A Silicon Valley Special?

One substitute for non-competes with employees is a no-hire agreement with competing employers. As the continuing litigation toll in the Silicon Valley illustrates, that option is illusory: • the most recent class action accuses Dreamworks and other animation companies of conspiring to fix workers’ pay by refusing to hire from competitors (Nitsch v. Dreamworks Animation … Continue Reading

Does YOUR Website Have to be Accessible Under the Americans with Disabilities Act?

Is the internet a place of public accommodation: a virtual town hall or a virtual shopping mall or a virtual movie theater? Courts still struggle with that. Physicalist courts say that the ADA requires a physical location. Ouelette v. Viacom, No. cv 10-133-M-DWM-JCL, 2011 WL 1882780 (D. Mont. March 31, 2011) (no ADA claim re … Continue Reading

“No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection?

Recent headlines from the Silicon Valley suggest that “no-hire” agreements are illegal, immoral, and unsustainable. But, those headlines address blanket restrictions negotiated between competitors. Targeted restrictions between supplier company and customer company are entirely different. The Department of Justice’s Competitive Impact Statement (“DOJ CIS”) in those Silicon Valley cases acknowledges that distinction: “An agreement that … Continue Reading

The Goldilocks Paradigm In RIF Releases

Obtaining an effective waiver of claims in the context of a reduction in force, an exit incentive, or other termination program is tricky. The Older Workers Benefit Protection Act (OWBPA) has numerous requirements that must be followed “just right” in true Goldilocks fashion. Compliance with the OWBPA is crucial because an employee, over the age … Continue Reading

Truthiness Test: “offers of judgment will stop FLSA collective actions?”

Chico Marx once said that he would like the west better if it were in the east. That is a line for employers to ponder in the wake of the Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk, holding that a Fair Labor Standards Act (“FLSA”) collective action was moot once the individual plaintiff … Continue Reading