Monthly Archives April 2013

This is a follow-up from our earlier post discussing the Supreme Court's decision to hear the appeal in Genesis HealthCare Corp. v. Symczyk and our prediction that the Court's decision could impact the viability of future FLSA litigation.  Well, as it turns out, we could not have been more wrong.  In an extremely narrow 5-4 decision, the Court refused to decide whether the unaccepted Rule 68 offer of judgment actually rendered Ms. Symcyzk's individual FLSA claim moot, instead assuming that the claim was moot because she conceded the issue in the courts below and subsequently waived the argument on appeal.  No. 11-1059, ___ S. Ct. ___, 2013 WL 1567370 (April 16, 2013). Because the Court "assumed, without deciding" that the plaintiff's individual claim was moot, the larger question left to resolve was whether the lawsuit could remain viable based on the FLSA collective action allegations. The Court held that it did not because "the…

In Berry v. Volkswagen Group of America, Inc., 2013 WL 1421604 (Mo., April 13, 2013), the Missouri Supreme Court affirmed an award of $6,174,640.00 in class counsel fees where the class recovered a grand total of $125,261.00. Because our firm submitted an amicus brief in this case, we will keep the report of this decision factual. That case involved an MMPA class settlement for allegedly defective window regulators, resulting in the settlement of a 22,304 member class eligible for payments of $75.00 each. But after notice was mailed out the class members, only 177 claims were made and only 130 paid. Class counsel submitted a bill for 7,910 hours billed at rates ranging from $200 for staff to between $252-$650/hour for counsel, calculated the lodestar at $3,087,320.00, and asked for a 2.6 multiplier. The trial court limited the multiplier to 2.0, resulting in $6,174,640.00 in fees, plus costs. Volkswagen appealed.…

When a claim appears doomed by the statute of limitations, some plaintiffs reach for the pipe, American Pipe that is. Under the American Pipe tolling doctrine, the commencement of a class action tolls the limitation period for claims later brought by absent class members.  In practice, this means an absent class member may pursue an individual action if class certification is denied without worrying about whether the limitations period is blown. But will American Pipe toll the limitations period if the named plaintiff in the class action does not (or did not) have standing to assert the particular claim in the individual action brought by the absentee class member? The Tenth Circuit hasn't addressed this question.  But Judge Lungstrum recently did, and answered it "yes" --- adopting the majority rule that the named plaintiff's standing is not necessarily required for American Pipe tolling. Nat'l Credit Union Admin. Bd. v. Credit…

In another closely-watched case, the Supreme Court issued an opinion in Comcast v. Behrend, and reversed certification of a Rule 23(b)(3) antitrust class based on the lower courts' refusal to scrutinize the plaintiffs’ expert proposed damage model because doing so would require an inquiry into the merits.  In a 5-4 decision that split largely among ideological lines, the Court re-emphasized its earlier decision in Wal-Mart Stores, Inc. v. Dukes that courts must conduct a "rigorous analysis" of plaintiffs' damages theories even if that analysis involves an inquiry into overlapping merits issues.  More importantly, the decision potentially undermines the long-standing rule that individualized determinations of damages are not an obstacle to class certification. In Comcast, the Supreme Court reversed a Third Circuit decision upholding class certification in an antitrust action brought on behalf of more than 2 million current and former Comcast cable-television subscribers, claiming the cable company used an anti-competitive “clustering strategy” that drove…

Close