What’s new, what to expect in Class-action

Posted: January 25, 2018

What do fashion, the Supreme Court, and GMOs have in common? Class-action litigation. Here are some recent noteworthy developments in the category with implications for 2018.

Workplace Class-actions are getting pricey.
The monetary value of the top 10 workplace class-action settlements rose from $1.75 billion in 2016 to $2.72 billion in 2017, an increase of nearly $1 billion, according to Seyfarth Shaw LLP’s Workplace class-action Litigation Report.

But employers are gaining leverage. 
Employers are doing better in wage-and-hour decertification, the report says, winning 63 percent of decertification rulings in 2017, up from only 45 percent in 2016.

Or are they?
Many eyes are on the U.S. Supreme Court, which is soon expected to decide whether employment arbitration agreements preclude class-action relief for employees.

Unpaid internships looking good…
…at least for employers. Some of the fashion industry’s biggest brands have faced class actions by interns claiming they should have been paid and awarded academic credit. In a victory for employers, the U.S. Circuit Court of Appeals for the Second Circuit, however, recently rejected claims that Hearst Corp. systematically exploited young students, according to The Fashion Law.

U.S. Supreme Court Justice Neil Gorsuch
His appointment by President Trump was one of the top 10 class-action developments of last year, according to BakerHostetler’s Paul Karlsgodt. Gorsuch, as you’ll recall, replaced late Justice Antonin Scalia, who was wary of class actions. As a “fellow texutalist and avowed admirer of Scalia,” Gorsuch isn’t expected to radically change course, says Karlsgodt: “But history has shown time and time again that each new member of the Court develops his or her own voice, and it remains to be seen whether Gorsuch will carry Scalia’s torch as the Court’s most outspoken class-action skeptic.”

The other judge.
Karlsgodt also flags the retirement of Seventh Circuit Court of Appeals Judge Richard Posner as a top 10 class-action development. In 40 years on the federal bench, Karlsgodt writes, Posner “may have had the most impact on class-action practice of any jurist not sitting on the Supreme Court.”

What is ‘natural’ food?
” ‘Natural’ is, by a healthy margin, the most contested single word in food and personal care products class-action litigation,” writes August T. Horvath in Ad Law Access. He counted 11 class actions in 2017 alleging a product wasn’t natural or all-natural as claimed in its advertising or labeling. Why the disputes? Writes Horvath:

  1. Natural doesn’t mean much. There’s no official FDA definition.
  2. Consumers’ beliefs carry weight with the courts. Many consumers don’t want GMOs in natural products even though “this is not part of the definition of ‘natural,’ which focuses on the ingredients and process of the product and not its origin or production process.”
  3. Advertisers know the word natural has value, and they end up “charting a treacherous course through ambiguous government pronouncements and unknown, but probably exaggerated, consumer expectations.”

Finally, many bites at the Apple. 
Perhaps the mother of all class-action issues is the alleged “throttling” of iPhones related to degraded battery performance. Forty-five class actions had been filed as of Jan. 24. Even though Apple’s CEO says users will soon be able to turn off the so-called dynamic power management feature, “the lawsuits keep coming,” says Fast Company.

These are some of the recent highlights in class-action litigation. Stay tuned for surprises and a very busy year.

Mark Rossi

Mark has spent a quarter century helping clients in law, finance and business solve complex business problems through advanced information solutions. He is adept and fostering enduring client relationships, creating new brands for unmet needs, and bringing the best out of talented people