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Presidential Elections Matter For Rights Enforcement

[ 53 ] December 4, 2012 |

The latest example.

Fortunately, since FDR rather than Obama signed the FLSA, I assume we can all agree that the key takeaway here is “we need to do everything we can to get good judges,” not “we might as well not bother to regulate as all until the ability of private interests to distort the regulatory process has been eliminated.”

Comments (53)

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  1. rea says:

    Courts, for some reason, hate class actions, although they present obvious efficiencies in handling mass torts

    • Scott Lemieux says:

      I think the reasons some judges don’t like them are actually pretty obvious.

    • Glenn says:

      Well, let’s be fair here. Class actions are certainly efficient and in many cases are the only effective way to proceed, but you’re talking about adjudicating and possibly extinguishing the rights of people who aren’t before the court and may not even be aware their rights are being adjudicated. They should be approached warily, though undoubtedly many courts are hostile for other reasons (as Scott alludes to).

      • Richard says:

        Also, the settlement in many consumer class actions (unlike employment class actions) is a windfall for the attorneys and no meaningful benefit of any kind to the plaintiffs. I’ve been the recipient of several class action awards where the “award” is a chance to purchase another product from the same company that screwed the plaintiff class but with a 20% discount.

        • Anonymous says:

          As a plaintiff’s attorney, even I think many of those class action consumer suits are no help to the consumers

          • Sherm says:

            Perhaps, if you choose to ignore the deterrent effect.

            • Bill Murray says:

              How much of a deterrent is having to give out a bunch of 20% off coupons?

              • UberMitch says:

                Well, they do also have the financial hit of the fee payment to the plaintiff class’s attorneys

                • Richard says:

                  I dont think that is much of a deterrent or that consumer class action suits accomplish much of anything (other than to line the pockets of the attorneys involved in the litigation). There are more effective ways to accomplish the goals of curbing corporate behavior than these lawsuits. Given the nature of and the eventual result in many consumer class action case, its is natural that judges are wary of them.

                  The case before the Supreme Court, however, is not a consumer class action case and it has not been my experience that judges are hostile to those.

        • Josh G. says:

          The real purpose of these class actions is to punish the companies for bad behavior. Without class action lawsuits, there would be nothing to prevent larger corporations from defrauding millions of people out of a few dollars each, knowing that each particular individual would find it not worth their time or effort to file a lawsuit.

          The alternative, of course, would be to have real regulation of corporate behavior, instead of relying on private, for-profit plaintiff’s attorneys. Europe generally does this, relying more on regulation and less on lawsuits to control corporate misbehavior. But in the U.S., that’s “socialism”, so we can’t have it. And the right wing wants to abolish both consumer/employee lawsuits and regulation, so corporations can do whatever they want to individuals with no consequences.

    • Just Dropping By says:

      Courts, for some reason, hate class actions, although they present obvious efficiencies in handling mass torts

      I’ve represented defendants in 10 putative class actions. The courts certified classes in 8 of those cases. In one case, the putative class representative’s individual claims were all dismissed on a FRCP 12(b)(6) motion before an actual motion for class certification was filed. In only one case did the judge deny certification on the merits. Beyond that anecdotal evidence, there are numerous published court decisions talking about how class actions are favored as a matter of public policy because they promote efficiency and my recollection is that studies show a sizable majority of putative FRCP 23 class actions that actually reach the class certification motions practice stage are, in fact, either certified or get rolled into other ongoing class actions relating to the same subject matter.

  2. DanMulligan says:

    Don’t discount this court’s ability to destroy class actions. Review AT&T Mobility (Scalia at his completely hypocritical best) before you get too sanguine.

  3. Sherm says:

    There is absolutely no support in the Federal Rules for such an interpretation. And since the FLSA allows for attorneys’ fees, how could any offer of judgment be conclusive since the plaintiff’s attorneys’ fees are unknown by the defendant making the offer?

    And isn’t it 14 days rather than 40 under Rule 68?

    • Sherm says:

      Check out Carroll v. United Compucred Collections, Inc., 399 F.3d 620,625 (6th Cir. 20050) and Weiss v. regal Collections, 385 F.3d 337, 348 (3rd Cir. 2004).

    • thusbloggedanderson says:

      I’m not getting the 40 days either.

      OT but speaking of settlement offers, this recent report from a MS case is pretty funny. Jury returns a defense verdict, and the plaintiff says, hey, I’ll take that offer now!

      Howell has since moved the court to enforce a purported settlement. He cited that as the jury was deliberating, Equipment tendered an offer of $750,000 to settle the case. As Howell was mulling over the offer and communicating with an
      intervening insurance interest, the
      verdict was returned. Howell postured that the offer remained open (it was never withdrawn) and that following the adverse verdict, he decided to accept Equipment’s offer of settlement.

      I’ll bet he did!

      • Sherm says:

        This thread reminded me of an FLSA case that my partner and I served as trial counsel on a couple of years ago where the defendant made a nice offer we wanted to accept after the jury asked for a calculator. We were trying to finalize the settlement (difficult bc of language barrier with clients (hispanic workers and a disagreement with co-counsel regarding merits of the offer). When the jury said they had a verdict, both sides asked the Judge to hold them for a few minutes bc the case was about to settle. Asshole Judge refused and verdict came in for much less than offer.

        • thusbloggedanderson says:

          Well … if I’m the judge, I may think that (1) y’all have had plenty of time to settle the case by the time the jury is deliberating, and (2) when the jury’s ready with a verdict, basic respect for the jurors means that it’s time for the fat lady to sing.

          • Sherm says:

            I suspect that the old prick had a good idea what the jury was going to do (they often do) and wanted to screw us over. His contempt for my “illegal” clients was evident from day one.

            The plaintiffs ended up getting more than the verdict in settlement after the defendant was scared by our fee application, but substantially less than the prior offer.

          • UberMitch says:

            and (3) “I have a tee time to make”

            • thusbloggedanderson says:

              The judges I’ve seen have been pretty solicitous of jurors. Most people don’t like jury duty, and the court does not go out of its way to make things difficult for them.

              • Richard says:

                Thats my experience as well. If the judge refused to hold the verdict for a few minutes, he was being a jerk. If the few minutes were what a lawyer calls a few minutes, more like an hour or two so that the fine points of a settlement can be discussed and worked out, he was acting properly.

                • Sherm says:

                  He was being a jerk. We had a deal and just needed a couple of minutes. The only hold up was getting authority to settle from one of the four plaintiffs. The other three were on board. The judge was a jerk the entire trial. He was much more concerned with the fact that the “illegal” workers were working off the books and not reporting their meager wages than he was with their exploitation by the restaurant owners.

                • Richard says:

                  I take your word for it. Not giving you a few minutes to get the fourth consent seems like the behavior of a jerk.

    • Richard says:

      Couldnt the fees be subject to a motion for fees to be determined by the court after the offer is deemed accepted? The court would have to grant fees because plaintiff was the prevailing party and the only question for the judge would be the amount of the fees. (I’ve entered into settlements like this)

      • Sherm says:

        I guess its doable — almost everything is. But if the defendant still has the right to oppose plaintiff’s counsel’s subsequent fee application, how is the case settled to the plaintiff’s satisfaction?

        • Richard says:

          Because the fees don’t affect him, only his lawyer. Plaintiff gets the benefit of the maximum statutory award. And the only thing at issue is the amount of the fees.

          • Sherm says:

            In every case that I have settled that involved claims of statutory fees (a handful of FLSA cases as trial counsel and a lot of sales rep cases), the settlement covered my firm’s fees, and we took our contingency fee off the top. I guess I’m looking at from this perspective.

    • David Nieporent says:

      And since the FLSA allows for attorneys’ fees, how could any offer of judgment be conclusive since the plaintiff’s attorneys’ fees are unknown by the defendant making the offer?

      The offer of judgment in a case like this typically says, “$X, plus reasonable attorneys’ fees.” Then if the parties can’t agree, plaintiffs’ attorneys make a fee application to the court. Since the attorneys’ fees to be awarded are up to the court, that’s perfectly legitimate.

  4. It’s interesting that these wage theft cases seem always to have non-union employees as victims. Unfortunately, it probably follows that this current SCOTUS will disallow the victims to organize as a class. Over the past thirty years or so, SCOTUS has been terrible with regard to standing for non-corporate plaintiffs.

    Here’s hoping that one of the five corporatist conservative justices retire, and the sooner the better.

    • Sherm says:

      I haven’t read the case, but if the offer of judgment was made before any attempt to certify the class was made by the plaintiff and if the offer of judgment encompassed all statutory costs and fees, there’s a pretty damn good chance in my opinion that this Court will compel the plaintiff to accept and dismiss for lack of subject matter jurisdiction.

  5. Dilan Esper says:

    Complete straw man. Nobody denies judges are important.

    The problem is, moving the party to the right because the left can be taken for granted is also important. And yes, designing statutes that can hold a up better when the other guys are in charge (or we get too corporatist) is, also important.

    Remember, in a key way, the 2008 financial crisis happened becaus the Democrats got way too cozy with financial interests and repealed the banking laws. And all if your precious judges could not bring back the jobs and homes people lost because your side won the argument in the 1990′s and we had a corporatist Democrat in power.

    • And yes, designing statutes that can hold a up better when the other guys are in charge (or we get too corporatist) is, also important.

      Yes, this is important. However, the “Rule of Five” will trump even the most carefully-designed statute. Ledbetter is a very good example of 5 justices turning “interpretive” cartwheels to get a pro-corporation result despite a statutory schema designed to prevent such cartwheel-filled interpretations.

      I would submit that judicial appointments matter a very great deal, and more than most people realize, and especially when it comes to ordinary day-to-day concerns such as the workplace.

    • Scott Lemieux says:

      The problem is, moving the party to the right because the left can be taken for granted is also important.

      Alas, losing elections doesn’t cause Democrats to move to the left.


      And yes, designing statutes that can hold a up better when the other guys are in charge (or we get too corporatist) is, also important.

      Indeed, and it’s to the substantial credit of Obama, Ried, and Pelosi that the PPACA does this so well, creating specific, judicially enforceable rights rather than leaving things solely to much more easily evaded state regulations.


      Remember, in a key way, the 2008 financial crisis happened becaus the Democrats got way too cozy with financial interests and repealed the banking laws.

      Well, throwing the election to Bush certainly solved that problem!

  6. bradP says:

    Fortunately, since FDR rather than Obama signed the FLSA, I assume we can all agree that the key takeaway here is “we need to do everything we can to get good judges,”

    Damn! Why didn’t we think of that earlier?!

  7. David Nieporent says:

    The Prospect piece has many flaws.

    There are minor ones (a plaintiff has just 14 days to accept an offer of judgment, not 40 — this was probably a typo) and major ones — an FLSA case cannot be brought as a class action, but only as a collective action. (This is an important distinction, because a certified class action relates back to the filing of a complaint, whereas a collective action does not.)

    Thus, the issue before the court had nothing to do with whether defendants can pick off putative class representatives in class action cases; it’s generally established that this is impermissible. This is unique to FLSA (and ADEA) cases. The Court ruling against Symcyzk would not “provide” a road map for corporations that desperately want to avoid class-action suits,” but only FLSA collective actions. And it applies only if the defendant indisputably offers more than the plaintiff is owed, including attorneys fees and liquidated damages, anyway. In any case where the plaintiff’s damages are indeterminate, the strategy wouldn’t work anyway.

    A $7,500 offer in an FLSA case which is a putative collective action does not “reflect the strength of her claim” at all; that’s little more than nuisance value in such a case, given the fee-shifting provisions of the FLSA. I’ve seen much less colorable claims result in much higher offers.

    (There is one legal quirk, though it’s not the one that the court granted cert to address: her case was dismissed without her actually receiving money; some courts have done that with rejected Rule 68 offers, and I think it’s nuts. Other courts will enter judgment in favor of the plaintiff, which I think is the right approach.)

    (Also, your claim that Symcyzk was being “selfless” doesn’t pass the laugh test. That’s not why plaintiffs’ lawyers reject Rule 68 offers.)

  8. Sherm says:

    an FLSA case cannot be brought as a class action, but only as a collective action.

    Fair point. But the Federal Court will also have jurisdiction over the state law wage claims which routinely parallel FLSA claims, and such claims will be class action in nature rather than collective. So, you may be drawing a distinction without a difference. In New York, you are not going to see a FLSA claim without a New York Labor Law claim as well.

    In any event, the defendant is still attempting to pick off the lead plaintiff before other potential victims have joined. Should it matter whether such victims must opt in or opt out? When you consider the remedial nature of the FLSA, it shouldn’t.

    • Sherm says:

      The above was intended to be in reply to David Nieporent.

    • David Nieporent says:

      It does matter, because of the relation back doctrine. The issue here is mootness — if the defendants pick off the putative representative plaintiff in a pre-certified collective action, then there’s nobody to prosecute the case. On the other hand, if it’s a class context instead, then some other member of the class can be named representative, and that person’s claim is retroactive to when the case was filed. (Or, at least, that’s how many lower courts have seen it to date.)

      As for the parallel state claims which can potentially be certified as a class (keep in mind that the standard for class certification is generally much more stringent than collective certification), while the court has jurisdiction to hear those claims, most courts will choose not to exercise supplemental jurisdiction over them once they dismiss the federal claims. The only time I’ve seen a federal judge retain jurisdiction over the state labor law claims after dismissing the FLSA claims is in the context of a defaulting defendant — and even there, I haven’t always seen it.

      • Sherm says:

        I think you made me point for me with your first paragraph, with the point being that allowing a defendant to pick off the lead plaintiff in a collective FLSA case would be a real fuck job which would be inconsistent with the remedial nature of the statute.

        As for state law class action claims, I was thinking that the entire case would have to be resolved by the offer of judgment in order to have the case rendered moot, rather than just the federal question claim. I’ve never had reason to research this issue, thankfully.

        • David Nieporent says:

          As to your last comment, that’s what happened in Symczyk itself: the court found her federal claims to be moot because of the Rule 68 offer and declined to exercise supplemental jurisdiction over the state claims.

          As to the first, it’s obviously not plaintiff-friendly to allow this procedure, but it doesn’t pose as big an issue as you worry about. First, it only works if the plaintiff’s damages can be liquidated; the defendant can’t succeed in having the plaintiff’s claims dismissed as moot pursuant to the Rule 68 offer unless it can prove that it has offered more than the plaintiff could achieve at trial. Second, unlike in, e.g., a consumer class action where the class members are all unrelated people, it’s typically not that hard to recruit another plaintiff. I’ve encountered plenty of cases where defendants try to “pick off” FLSA lead plaintiffs, only to see face a series of additional suits in succession. (Remember, by definition a judgment pursuant to Rule 68 is public — no confidentiality. (Although more and more judges are rejecting confidentiality in FLSA settlements, anyway.)) Third, while ‘picking off’ a plaintiff’s claim in a class action prejudices the other class members in terms of the statute of limitations, that doesn’t happen in the FLSA context because each class member only tolls the statute when he opts in, anyway. (Again, no relation back doctrine.)

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