An article in the July 31, 2017, Bloomberg BNA Daily Labor Report notes that William Emanuel, a lawyer with Littler Mendelson PC and one of President Donald Trump’s two current nominees to the National Labor Relations Board, “signed an ethics agreement pledging to recuse himself for a two-year period from board cases involving any of his former clients as well as parties represented by Littler Mendelson.” The article further reports that Senator Elizabeth Warren (D-Mass.) has suggested that Emanuel should “also sit out any case involving the hotly contested question of whether employers can force their workers to sign class action waivers,” because he “has represented parties on the class action waiver issue in a case before the board, . . . his firm is counsel in a number of others[, and h]e has also co-written briefs in U.S. Supreme Court cases arguing that the agreements aren't unlawful restraints on employees’ right to engage in collective activity.” (Emphasis added.)
However, unless the standards for recusal are more stringent for nominees of President Trump than they were for nominees of President Barack Obama, Emanuel can ethically ignore Senator Warren’s suggestion and need not recuse himself in all class-action waiver cases, even though that is a “hotly contested” issue.
A recent article in the Wall Street Journal (paywall) points out a legal issue that judges are increasingly facing as they consider class action lawsuits brought against companies that become victims of criminal hacking:
Data breaches have forced judges to wrestle with a new notions of what it means to suffer an injury. Though cyberattacks against companies can cause widespread damage, any harm to customers is often hard to quantify and tough to trace, making it difficult for them to pursue redress in the courts.
In most cases, the economic damage falls on the primary victim of the hacking, i.e., the company whose systems are breached. In addition to any embarassment, the victim must also spend resources to investigate the hacker's entry point, identify the scope of the compromise, and purge the intruder from its systems.
If the hacker actually obtains data about individuals from the victim company, the victim company may also become a target for legal action from a variety of sources, including state attorneys general, the Federal Trade Commission, and class action lawsuits brought by private parties. As the article explains, plaintiffs bringing private cases often have a hard time showing standing and damage. That's because most of the time, there's no clear indication that the hacker used any particular person's information in a way that caused actual damage.
Many of us expected the Supreme Court to clarify whether these kinds of suits can survive in Spokeo, Inc. v. Robinsthis year, but the Court dodged. So there's a good chance that the issue will be coming back up to the high court eventually.
On November 10, the Supreme Court will hear oral arguments in the case of Tyson v. Bouaphakeo. In this case, Tyson Foods was ordered to pay $5.8 million in damages in a class action lawsuit brought by employees alleging violations of various federal and state labor laws. A class of 3,344 employees alleged that Tyson failed to properly compensate them for time they spent donning and doffing protective clothing and equipment and washing equipment and used statistical sampling to determine damage awards. [Read More]
Writing for State Court Docket Watch, Chad Readler and Benjamin Flowers offered their perspective on a recent Ohio Supreme Court decision dealing with class action litigation:
When the Ohio Supreme Court interprets state class-action law, it often relies on decisions from the Supreme Court of the United States interpreting federal class-action law. But in Felix v. Ganley Chevrolet, Inc., the Ohio Supreme Court reached an issue the nation’s high court has yet to, but might soon, resolve: May courts certify classes that include members who have not “suffered [an] injury as a result of the conduct challenged in the suit?” Felix held they may not, at least not in cases alleging violations of the Ohio Consumer Sales Practices Act.