Yesterday, the United States Supreme Court granted Tyson Foods’ petition for certiorari to review the Eighth Circuit’s opinion upholding class certification in a donning and doffing case. A class of Tyson employees brought the suit seeking compensation for time they spent putting on (donning) or removing (doffing) protective equipment and clothing. The decision promises to be most important clarification yet of the scope of the Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision. The two questions presented for certiorari were: (1) whether differences in individual class members may be ignored and a class certified where “liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample” and (2) whether a class can be certified when it consists of “hundreds of members who were not injured and have no legal right to any damages.” The Eighth Circuit affirmed a $5.8 million jury verdict for plaintiffs in a divided opinion. En banc review was denied in a 6 to 5 vote. A key question dividing the majority and the dissent was the role that “company policy” plays in class certification analysis. The majority pointed to Tyson’s “specific company policy” regarding donning and doffing. The dissent agreed that the policy existed, but did not believe the policy’s application could result in a “common answer” because the donning and doffing issue must be determined on an individual basis. Another key question facing SCOTUS will be the role of statistics in satisfying commonality and whether a single-sum jury verdict in the case – based on “average” damages — amounts to an impermissible “trial by formula.” The case will be argued in the fall.
Guzman v. Diamond Candles, LLC, 1:15-cv-422 (M.D.N.C. May 29, 2015) (asserting unfair and deceptive trade practice and unjust enrichment claims on behalf of purchasers of defendant’s candles related to defendant’s alleged “illegal lottery scheme,” which involved selling candles with a ring – possibly worth $5,000 – hidden inside).
Cecil v. Hinshaw, 1:15-cv-409 (M.D.N.C. May 22, 2015) (asserting class action on behalf of the Kingston, Inc. Employee Stock Option Plan and certain Plan participants against former Plan administrators and trustees for various alleged ERISA violations).
Hill v. SCA Credit Services, Inc., No. 15-1554 (4th Cir. May 22, 2015) (docketing appeal from order dismissing putative statewide class action regarding defendant’s allegedly improper debt collection practices against West Virginia consumers).
Meller v. Wings Over Spartanburg, LLC, No. 2:15-cv-2094 (D.S.C. May 21, 2015) (asserting collective action under the Fair Labor Standards Act and class action under the South Carolina Payment of Wages Act on behalf of Wild Wing employees regarding defendants’ tip pooling practices).
Corbin v. CFRA, LLC, 1:15-cv-405 (M.D.N.C. May 21, 2015) (asserting collective action under the Fair Labor Standards Act on behalf of IHOP employees regarding defendant’s “tip credit” practices).
Phillip Singer v. Trans1, Inc., No. 15-1542 (4th Cir. May 19, 2015) (docketing appeal from order dismissing claims against certain executives of Trans1, who were individual defendants in a putative shareholder class action alleging violations of federal securities laws).
Thrailkill v. Top Rank, Inc., No. 7:15-cv-2028 (D.S.C. May 15, 2015) (asserting class action on behalf of South Carolinians who purchased pay per view subscriptions for a boxing match between Manny Pacquiao and Floyd Mayweather; the complaint brings claims for unfair and deceptive trade practices and unjust enrichment regarding defendants’ alleged failure to disclose Pacquiao injury).
Haynes v. Charleston Retirement Investors, LLC, No. 2:15-cv-2003 (D.S.C. May 13, 2015) (asserting collective action under the Fair Labor Standards Act and class action under the South Carolina Payment of Wages Act for unpaid wages relating to defendants’ alleged practice of requiring “off the clock” work).
The Huntington National Bank v. Powell, No. 15-178 (4th Cir. May 11, 2015) (petitioning to appeal under 28 U.S.C. § 1292(b) from Order denying The Huntington National Bank’s motion for judgment on the pleadings in putative statewide class action regarding allegedly improper imposition of late fees).
Bolling-Owen v. Lumber Liquidators, Inc., No. 2:15-cv-1971 (D.S.C. May 8, 2015) (removing putative statewide class action regarding purported defects in Lumber Liquidators’ Chinese wood flooring). As stated in the removal notice, the case is related to the Green v. Lumber Liquidators, White v. Lumber Liquidators, Sahn v. Lumber Liquidators, and Watson v. Lumber Liquidators cases pending before Judge Harwell, to whom the Bolling-Owen case was also assigned.
Robinson v. TD Bank, N.A., No. 6:15-cv-1937 (D.S.C. May 7, 2015) (asserting putative nationwide class action regarding TD Bank’s overdraft fees). This case was transferred from the Southern District of Florida for the reasons stated in the April 2, 2015 In re: TD Bank, N.A. MDL Order.
Lakowitz v. Bowers, No. 1:15-cv-00371 (M.D.N.C. May 6, 2015) and Li v. Bowers, No. 1:15-cv-00373 (M.D.N.C. May 7, 2015) (identical shareholder lawsuits challenging the proposed stock-for-stock merger between Square 1 Financial, a Durham-based company that provides financial and banking services to entrepreneurs, and PacWest Bancorp).
CFRE, LLC v. Adkins, No. 15-1495 (4th Cir. May 6, 2015) (docketing appeal from Order dismissing putative class action for lack of jurisdiction under the Tax Injunction Act; brought on behalf of Greenville County property owners, the lawsuit arose from a 2010 countywide reassessment).
Asamoah v. Piedmont Petroleum Corp., No. 2:15-cv-1914 (D.S.C. May 5, 2015) (asserting collective action under the Fair Labor Standards Act for unpaid wages relating to defendants’ alleged practice of requiring “off the clock” work).