Another Economic Reality: Single, Rational Test Needed for Who Is an “Employer”

DOLNLRBEarlier this month, in An Economic Reality: Uniform Regulatory Definition Needed for Who Is an “Employee”, we argued that a standardized, control-based test for legally categorizing workers would benefit both employers and employees. In this commentary, we explain why similar uniformity is urgently needed in how regulatory agencies and courts define “employer.”

The legal definition of “employer” is critical because employers are responsible for compliance with federal and state labor laws and can be held vicariously liable for the actions of their employees. It is most relevant, and controversial, in situations where businesses outsource or subcontract certain work responsibilities, and in franchise arrangements. Too broad a definition of employer could force businesses that outsource, subcontract, or franchise to act as “joint employers” for employees of entirely separate businesses. Continue reading

Data-Breach Plaintiffs’ Lawyers Concoct New “Overpayment” Harm Theory, with Mixed Results

vtechPlaintiffs’ attorneys, like politicians, rarely let a good crisis go to waste. Digital crises, such as data-breach and hacking events, are no exception.

Defendants in data-breach-related lawsuits, however, have had a great deal of success beating back consumer-harm claims with motions to dismiss challenging plaintiffs’ lack of standing to sue. As in many of the food-labeling class actions that helped pave the way for data-breach suits, it is often hard for plaintiffs to identify any way that they were actually harmed—because typically they weren’t.

Some data-breach plaintiffs have begun to claim injury based on “overpayment.” Continue reading

The Supreme Court’s NOT Top 10: October Term 2016 Cert Petitions the Justices Should Have Granted

supreme courtIn a year when the U.S. Supreme Court heard six(!) cases where Washington Legal Foundation supported grants of certiorari with  amicus curiae briefs (leading all non-profit groups “by quite a large margin,” according to EmpiricalSCOTUS.com), it seems a bit churlish to pick on the Court for rejecting a number of important cases.  Then again, the entire point of this feature is to identify such oversights.  Even though the Court granted some 43 percent of the cases in which WLF supported cert, it still overlooked a host of worthwhile appeals, once again taking on an exceedingly light docket.

One thing stands out in this fourth annual retrospective look at last term’s disappointeds docket: namely, how many so-called business cases the Court granted.  Although many commentators have called this a “boring” term, court watchers who value clarity and certainty couldn’t help but appreciate the Court’s resolving multiple controversies that, while minor in the grand scheme of things, have nonetheless vexed litigants and divided lower courts.  Perhaps because the Court was down a justice and evenly divided for over a year, it took the opportunity to grant cert to cases on lower-profile subjects that might get passed over when meatier fare is desired.  If it did so in a quest for consensus, the happy results are the silver lining of the Court’s unusually long interregnum. Continue reading

Uncommon Defects and Unreliable Methods: U.S. District Court Effectively Applies ‘Daubert’ to Deny Class Certification

Featured Expert Column–Judicial Gatekeeping of Expert Evidence

Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In many civil lawsuits, parties introduce expert testimony to help the jury decide questions of negligence or causation. In class actions, expert testimony is also often employed to help the court answer questions under Federal Rule of Civil Procedure 23, such as whether a class is ascertainable or to develop a formula for awarding damages on a class-wide basis. In Kljajic v. Whirlpool Corp., the United States District Court for the Northern District of Illinois (St. Eve, J.) addressed the intersection of Daubert and Rule 23’s commonality and predominance requirements.

Under Rule 23(a), a plaintiff must show that there are questions of law or fact common to the class. And plaintiffs who seek certification under Rule 23(b)(3) must satisfy the more demanding predominance requirement, which looks to whether the common issues in the case are more important than the individualized issues. These two requirements are similar, and expert testimony can shed light on whether a case can be maintained as a class action. Continue reading

Philadelphia’s Wage-History Ordinance Faces First Amendment Challenge

 Guest Commentary

By Stephanie J. Peet, a Partner in the Philadelphia, PA office of Jackson Lewis P.C., and Timothy M. McCarthy, an Associate with the firm. Ms. Peet writes for the firm’s Pay Equity Advisory Blog.

The number of jurisdictions considering and enacting legislation that bars employer inquiries about and reliance on job applicants’ salary or wage history has been growing. A legal challenge to the Philadelphia’s ban promises to be instructive and is worth watching.

The Philadelphia Ordinance

 On December 8, 2016, the Philadelphia City Council passed a bill prohibiting employers from inquiring about the wage history of prospective employees (the “Ordinance”). The Ordinance, intended to alleviate “gender-based pay discrimination,” was scheduled to take effect on May 23, 2017. In April, however, the Chamber of Commerce for Greater Philadelphia filed a complaint and motion for a preliminary injunction against the City of Philadelphia and the Philadelphia Commission on Human Relations, ultimately seeking to have the law struck down. The City voluntarily halted enforcement of the Ordinance while the lawsuit is pending. Continue reading

Days Apart, Second and Sixth Circuits Muddy the Waters on Class Ascertainability

2nd Circuit6th Circuit Whether federal district courts may certify a damages class action where no reliable, administratively feasible method exists for identifying class members is a question that has long plagued class-action defendants. The need for class ascertainability is especially dire in low-value consumer class actions in which manufacturers, distributors, and retailers are sued over “mislabeled” food, beverages, or other inexpensive consumer products. Unfortunately, the federal courts of appeals are sharply and hopelessly divided on whether Rule 23, which governs class actions in federal courts, includes an implicit ascertainability requirement. Continue reading

Fourth Circuit Upholds Application of Government-Contractor Defense in Asbestos Suit

Featured Expert Contributor: Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

The US Court of Appeals for the Fourth Circuit recently applied the Boyle government-contractor defense to a failure-to-warn claim in an asbestos case.  Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017).  In doing so, the court wisely rejected a narrow interpretation of the defense favored by other federal circuit courts.

The defense derives its name from Boyle v. United Technologies Corp., 487 U.S. 500, 501 (1988), which held that, in order to avoid indirectly penalizing the United States government for its discretionary decisions concerning the purchase of military equipment, contractors supplying that equipment would be immune from state product-liability claims where (1) the government approved reasonably precise specifications for the equipment; (2) the equipment conformed to those specifications; and (3) the contractor warned the government of any dangers known to the contractor about which the government was unaware. Continue reading