Monthly Archives December 2013

Here's an interesting order from the District of Kansas that was published right before the Thanksgiving holiday that demonstrates how a proposed class settlement can get denied not once, but twice, if counsel does not adequately represent all members of the putative absent class. In Better v. YRC Worldwide, No. 11-2072-KHV, 2013 WL 6060952 (D. Kan. Nov. 18, 2013), the parties were before the court for a second time for preliminary approval of a securities class action settlement. While the court initially denied approval because plaintiffs failed to satisfy the Rule 23 requirements of typicality and adequacy, it appears the parties did not sufficiently address these deficiencies the second time around. Specifically, the court identified three areas where the parties failed to protect the interests of the putative class: First, approval was denied because the Court found that the proposed settlement failed to provide any benefit to certain class members while requiring…

Although not arising in either the Eighth or Tenth Circuits, the Fifth Circuit's opinion in D.R. Horton v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013) was widely anticipated because of the underlying decision's apparent incongruity with the Supreme Court's decision in AT&T Mobility LLC v. Concepcion.  Our awesome colleagues Bill Martucci and Ashley Schawang from SHB's National Employment Litigation & Policy Practice have provided us with a great snapshot of the decision: The Fifth Circuit Court of Appeals has overruled the National Labor Relations Board’s (NLRB’s) determination that class-arbitration waivers violated the National Labor Relations Act (NLRA). D.R. Horton v. NLRB, No. 12-60031 (5th Cir. Dec. 3, 2013). In upholding the class waiver in D.R. Horton’s arbitration agreement, the Fifth Circuit joined its sister circuits. The issue arose in the context of an employee’s claim that the arbitration agreement’s class-action waiver was an unfair labor practice under the NLRA. The employee and a nationwide class had…

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