Class Actions Brief Blog

As class action litigation under ERISA continues its upward trend across the country, could Article III standing serve as a means through which a Court can fairly assess claims before costly discovery is imposed on defendants and judicial resources are expended? Several recent federal court decisions suggest as much.

ERISA, which provides protection to employees who participate in employee benefit plans, confers statutory standing on plan participants and beneficiaries to seek relief against their benefit plans as well as fiduciaries of these plans in federal court. Although ...

This post concerns a recurring topic in class-action practice: how a party—through its own litigation conduct—can waive its right to arbitrate.

The topic warrants attention, or at least came to our attention, because of a recent decision from a federal appellate court. The case, called Morgan v. Sundance, Inc., is a putative nationwide collective action filed under the Fair Labor Standards Act.

The defendant (Sundance) owns Taco Bell franchises in multiple states. The plaintiff (Robyn Morgan) worked at a Sundance restaurant in Iowa. She has accused Sundance of not paying her ...

Brumfield v. Kindred Healthcare, Inc. is a putative collective action brought under the Fair Labor Standards Act by home health licensed nurses and physical therapist assistants alleging defendants failed to pay them overtime for required work activities beyond the “in-home” visits, including travel time, time spent transporting samples to labs, and time spent delivering medical supplies to patients. Four additional people elected to “opt-in” to the case and join the collective action, including Andrew Tyler, who worked in South Carolina.

Defendant Kindred ...

According to the Company website, “Piggly Wiggly has been bringing home the bacon for millions of American families for over 100 years.” But a putative class of former employees of Piggly Wiggly filed a class action complaint in the District of South Carolina, asserting various claims under ERISA pertaining to the Company’s employee stock ownership plan. The claims include allegations pertaining to excessive compensation, “gross mismanagement,” concealing of financial losses from participants, and various “insider dealings.” Spires v. Schools, No. 2:16-616 ...

In February 2014, the Panel on Multidistrict Litigation transferred a series of cases against Pella Corporation, a window manufacturer, to the District of South Carolina. Judge Norton dismissed most of the claims, but preserved claims alleging breach of express warranty with respect to Pella’s failure to repair or replace windows under its limited warranty. The windows, so plaintiffs alleged, leaked, and the plaintiffs sought certification of a class consisting of owners of structures in New York from 1997 through 2007 who had made a claim under Pella’s Limited Warranty. The ...

We have reported recently in this space on the certification of state wage and hour claims. Judge Gergel recently continued with this trend, certifying a class of Jamaican workers at the Kiawah Island Golf Resort who contend they weren’t paid enough by the Resort. See Moodie v. Kiawah Island Inn Co. LLC, No. 2:15-cv-1097 (D.S.C. Aug. 24, 2015). Defendants argued that the differences in class members were such that the court would have to certify six classes, but the Court rejected that notion, saying the argument stemmed from a “novel proposition that Plaintiffs must propose [a ...

Late last year, we explained the tricky statute of limitations issues that can arise regarding “cross-jurisdictional class action tolling.” The issue arose in some of the many Pella window cases pending before Judge Norton in the District of South Carolina. Those cases have now raised several more interesting timeliness issues—when plaintiffs can consolidate pending cases to avoid dismissal on timeliness grounds, and when a failure to move for certification waives class claims.

In October of last year, the Judicial Panel on Multidistrict Litigation (JPML) transferred ...

As we discussed last year, a bona fide circuit split exists with respect to “issue certification.” We observed that the Fourth Circuit’s guidance on this issue is foggy: As Judge Dever has noted, “although the Fourth Circuit appears to address this issue in Gunnells v. Healthplan Services Inc., 348 F.3d 417 (4th Cir. 2003), its analysis is unclear.”

In his recent order denying class certification in Parker v. Asbestos Processing LLC, No. 0:11-cv-01800 (D.S.C. Jan. 8, 2015), Judge Joseph F. Anderson joined the fray, providing an interesting twist on the subject and the ...

Just before the holidays, Judge Norton considered the thorny issue of “cross-jurisdictional class action tolling” in a multidistrict litigation case involving allegedly defective windows. See Schwartz v. Pella Corp., No. 2:14-mn-00001, 2:14-cv-00556 (D.S.C. Dec. 18, 2014). As the name suggests, cross-jurisdictional class action tolling is an equitable doctrine that tolls the statute of limitations during the pendency of a class action in a different court. The principle of class action tolling was introduced forty years ago in American Pipe & Constr. Co. v. Utah, 414 ...

Lecroy v. CSX Transportation, Inc., No. 2:14-cv-02128 (D.S.C. June 2, 2014) arises from a CSX train derailment at the underpass of Cypress Gardens Road in Berkley County, South Carolina, which caused a bridge to collapse. A purported class of Berkley County citizens filed a negligence and strict liability action against CSX, seeking damages for the “cost for transportation,” including costs associated with a 22-mile detour route around the collapsed bridge. The lawsuit alleges a strict liability claim under South Carolina’s Anti-Blocking Statute, S.C. Code § 57-7-240

It is often expedient for a defendant to make an offer of judgment in order to avoid the expense of lengthy proceedings, particularly when the plaintiff’s damages claim is small. But what happens when the offer of judgment is made to a class representative? Does that mean that the individual no longer has standing? And does it make any difference if the offer is made before or after the class certification motion is filed? Judge Currie grappled with these issues last week in a Fair Debt Collection Practices Act case, Chatham v. GC Services, LP, No. 3:14-cv-00526 (D.S.C. July 16, 2014)

Courts have understandably been reluctant to certify a class consisting of “persons who are injured by the defendant” or “individuals to whom the defendant is liable,” i.e., a class definition that depends on the outcome of the case. Such a “fail-safe” class is unfair to defendants:  if defendants win the case, there is no class that is bound by the result because the class consists solely of victors.

A West Virginia judge recently denied a former Dollar General employee her bid for class certification, finding the proposed class was fail-safe and therefore improper ...

The aphorism “If at first you don’t succeed . . .” has special significance in class litigation.  Rule 23(c)(1)(C) expressly provides that an order granting or denying class certification “may be altered or amended before final judgment,” and the Fourth Circuit has made it clear that the district court must decertify a class if “it becomes apparent, at any time during the pendency of the proceeding that class treatment of the action is inappropriate.” Stott v. Haworth, 916 F.2d 134, 139 (4th Cir. 1990).  But Judge Childs declined to decertify a class of plaintiffs who ...

In Johnson v. Amazon.com dedc LLC, No. 3:14-cv-01797 (D.S.C. May 2, 2014), seven South Carolina Amazon warehouse workers sued Amazon on behalf of themselves and similarly situated employees alleging unpaid overtime in violation of the Fair Labor Standards Act (“FLSA”) at Amazon’s fulfillment centers in West Columbia and Spartanburg. Plaintiffs allege that they should be compensated for time spent going through “intensive and time-consuming security screening” to enter and exit the fulfillment centers (Compl. ¶35) and for similar security procedures at the start ...

The Supreme Court’s articulation of the “new” commonality standard – that class members must suffer the same injury – in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), doomed plaintiffs attempts to certify a class of South Carolinians challenging the practices of Liberty Tax franchisees with their customers. In Martin v. JTH Tax, Inc. (D.S.C. 2013), Judge Norton denied plaintiffs’ motion for class certification, noting that “the varying factual scenarios between putative class members,” as well as “the requisite inquiries about the alleged ...