It is one thing for a federal trial court to decide, based on precedent and Rule 23, whether a class of individuals can be allowed – consistent with the principles of due process – to assert claims against a defendant. But it is another – entirely – to contemplate an arbitrator making those decisions: “class arbitration” can send chills down the spine of even the most seasoned defense lawyer. In NCR Corp. v. Jones, No. 3:15-cv-444 (Jan. 5, 2016), Judge Cogburn had to decide whether the parties’ arbitration agreement – which was silent on the subject – permitted class arbitration. (Unlike some cases, the parties in Jones agreed that the court – not the arbitrator – was empowered to make this decision). Acknowledging that the “Fourth Circuit has not yet had an opportunity to address the precise issue of silence in an arbitration agreement as to class arbitration,” the Court noted that the circuits are “somewhat divided” on the subject. Analyzing the issue “under the principles of North Carolina contract law,” Judge Cogburn relied upon the “exclusive bilateral terms” of the arbitration agreement (i.e., the absence of a reference to arbitration with anyone other than the contracting parties) and the agreement’s reference to a single venue location. The court also weighed practical issues with class arbitration, including the fact that arbitrators may not be as knowledgeable as courts about key procedural issues like certification and the protection of absent parties. The court held that it “will not read the absence of a term regarding class arbitration to mean that the parties agreed to class arbitration.” It remains to be seen whether the employee – a declaratory defendant in the case – will take this first-impression issue to Richmond for ultimate decision.
On January 8, 2016, H.R. 1927 passed the United States House of Representatives. In addition to provisions dealing with disclosure of information concerning asbestos trusts, the bill provides that federal courts may not certify any class seeking monetary relief for “personal injury or economic loss” unless the class representative “affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative.” The proposed act – entitled “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016 — has been sent to the Senate, where prospects for passage remain uncertain. Stay tuned.
Hughes v. Bank of America, N.A., No. 7:15-cv-05083 (D.S.C. December 30, 2015) (notice of removal of class action on behalf of borrowers alleging that Bank of America enrolled borrowers in and charged borrowers for an insurance protection plan without the borrowers’ consent in violation of the Truth in Lending Act and state law).
Hall v. Higher One Machines, Inc., et. al., No. 5:15-cv-00670 (E.D.N.C. December 28, 2015) (asserting Fair Labor Standards Act collective action and class action under the North Carolina Wage and Hour Act and alleging that defendant failed to pay plaintiff call center employees for all hours worked by limiting their compensation to the time the employees were on the telephone and available to accept calls).
Career Counseling, Inc. v. Amsterdam Printing & Litho, Inc., et. al., No. 3:15-cv-05061 (D.S.C. December 28, 2015) (putative class action asserting violations of consumer protection laws against Taylor Corporation for sending unsolicited faxes).
Sittner v. Country Club, Inc., No. 4:15-cv-05043 (D.S.C. December 23, 2015) (collective action and putative class action by exotic dancers alleging that the defendant operator of a strip club treated the dancers as independent contractors rather than employees and mishandled tips in violation of the Fair Labor Standards Act and the South Carolina Payment of Wages Act).
Haley, et. al. v. CSX Transportation, Inc., No. 3:15-cv-05037 (D.S.C. December 22, 2015) (notice of removal of class action on behalf of residential property owners alleging that CSX’s train trestles restricted the water flow of a creek, causing their homes to be flooded during the October 2015 floods in Columbia, SC).
Lewis, et. al. v. NC Department of Public Safety, et. al., No. 1:15-cv-00284 (W.D.N.C. December 21, 2015) (putative class action on behalf of prison inmates diagnosed with Hepatitis C against the NC Department of Public Safety and several state officials in their individual capacities, alleging disability discrimination and constitutional violations for failure to provide adequate medical treatment).
Gallegos v. Becerra Enterprises, Inc., No. 4:15-cv-00196 (E.D.N.C. December 11, 2015) (asserting Fair Labor Standards Act collective action and class action under the North Carolina Wage and Hour Act, the minimum wage provisions of the Florida Constitution, and the federal H-2A Program brought by a group of migrant workers alleging that defendant recruited the migrant workers from their homes in Mexico to perform agricultural work and failed to pay the workers minimum wage and for all hours worked).
Davy v. Duke Energy of the Carolinas, LLC, et. al., No. 7:15-cv-04927 (D.S.C. December 11, 2015) (notice of removal of class action on behalf of purchasers of residential solar panel systems alleging that defendant Energy Conservation Solutions sold plaintiffs defective solar panel systems for their homes).
Crumbling v. Miyabi Murrells Inlet, LLC, No. 2:15-cv-04902 (D.S.C. December 10, 2015) (asserting Fair Labor Standards Act collective action and class action under the South Carolina Payment of Wages Act brought by wait staff alleging that defendant restaurants’ mandatory tip pools were improper because tips were shared with back-of-house employees who did not customarily or regularly receive tips).
Collins v. Berkeley County, No. 2:15-cv-04823 (D.S.C. December 3, 2015) (asserting Fair Labor Standards Act collective action and class action under the South Carolina Payment of Wages Act and alleging that defendant police department failed to pay for overtime when it required police officers to be on call and perform work off the clock).
In re NII Holdings, Inc. Securities Litigation, No. 15-387(4th Cir. December 1, 2015) (docketing defendant’s petition for permission to appeal from an Order certifying a 23(b)(3) class of purchasers of NII common stock and bonds).