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Over the past two weeks, the United States Supreme Court has repeatedly underscored the importance of having common questions that are susceptible to common answers in cases where plaintiffs are seeking class certification. Most recently, the Court clarified that this requirement, which has now been considered in both antitrust and employment cases, applies with respect to both merits and damages issues. As discussed below, this clarification presents employers with a potent new tool in the defense of class action wage-and-hour cases.

On March 27, 2013, the Court issued its decision in Comcast Corporation v. Behrend, a putative antitrust class action brought on behalf of 2 million cable subscribers in 649 franchise areas alleging overcharging through an alleged attempted monopoly. In considering whether the class should be certified, the Court held that the need for individualized inquiries with respect to damages issues precluded class certification. (Opinion available here.) Moreover, the Court stressed that lower courts must perform a probing analysis when deciding whether to certify a class in order to ensure the existence of common answers to common questions.

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. ___, 132 S. Ct. 680 (2012)

Cheryl Perich was a “called” teacher for the church and also had the formal title of “Minister of Religion, Commissioned.” After Perich developed narcolepsy, the church replaced her with a lay teacher and eventually terminated her employment for “insubordination and disruptive behavior.” Perich filed a claim with the…

Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. ___, 131 S. Ct. 1885 (2011)

Daniel Kirk, a former employee of Schindler Elevator Corporation, filed this lawsuit under the False Claims Act (“FCA”), alleging Schindler had submitted false or fraudulent claims for payment to the United States. Kirk alleged the company had falsely certified its compliance with the Vietnam Era Veterans’ Readjustment…

Chamber of Commerce v. Whiting, 563 U.S. ___, 131 S. Ct. 1968 (2011)

In 1996, Congress created E-Verify, which is “an internet-based system that allows an employer to verify an employee’s work-authorization status.” In 2007, Arizona enacted the Legal Arizona Workers Act, which allows Arizona to suspend or revoke the licenses necessary to do business in the state if an employer knowingly or intentionally…

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)

The United States Supreme Court held that this class of as many as 1.5 million current and former female Wal-Mart employees was improperly certified by the lower court. The three lead plaintiffs claimed they were discriminated against on the basis of their gender and that Wal-Mart’s policy of providing deference to local managers’ subjective…

In Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (U.S. June 20, 2011), the Supreme Court vacated class certification of a gender discrimination lawsuit brought by 1.5 million current and former Wal-Mart employees because the plaintiffs failed to identify a specific, company-wide policy or practice of discrimination. Additionally, the Court held unanimously that the employees’ backpay claims could not be certified as a class action because Wal-Mart was entitled to individual proceedings so that it could present defenses as to each claim.

On Wednesday, June 22, from 12:00 to 1:00 p.m., Anthony Oncidi of Proskauer and plaintiff-side attorney, Andrew Friedman of Helmer Friedman LLP, will summarize the latest developments and discuss the practical implications of this year’s most significant employment decisions. Among other developments, attendees will hear about the new U.S. Supreme Court rulings regarding the “cat’s paw” liability theory (Staub v. Proctor Hosp., 131…

AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011)

In this landmark new opinion, the United States Supreme Court held that the Federal Arbitration Act (“FAA”) prohibits states from conditioning the enforceability of an arbitration agreement on the availability of class action arbitration procedures. Although this case arose in the consumer context (it involved AT&T’s charging sales tax for “free phones”), it has far-reaching…

Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. ___, 131 S. Ct. 1325 (2011)

Kevin Kasten alleged that his former employer, Saint-Gobain, terminated his employment because he orally complained to Saint-Gobain about the location of its time clocks, which prevented workers from receiving credit for the time they spent putting on and taking off their work clothes (in violation of the Fair Labor Standards…

In a ruling that has garnered significant interest among employers, the U.S. Supreme Court held on Wednesday that the Federal Arbitration Act (FAA) preempts the California Supreme Court’s efforts to impose heightened unconscionability standards on class action waivers in consumer arbitration agreements. This decision may also sound the death knell for similar restrictions imposed by California and other states on arbitration agreements in the employment setting.