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Posts Tagged ‘Ninth Circuit’

Press Quotes About Analysis of Ninth Circuit’s Kilgore v. KeyBank, N.A. Case

In Arbitration, Injunctive Relief, Press Quotes, Public Claims on April 15, 2013 at 9:15 am
ProfWhiteboard_Injunctions

ProfWhiteboard_Injunctions (Photo credit: cali.org)

Abigail Rubenstein of Law360 published an article Friday quoting the blog author’s analysis of the Ninth Circuit’s recent en banc ruling in Kilgore v. KeyBank, N.A.  Kilgore v. Keybank, N.A., No. 09-16703, __ F.3d __ (9th Cir. Apr. 11, 2013) (en banc):

Employers who were hoping that the full court would adopt the original appellate panel in the case’s flat-out rejection of the Broughton-Cruz rule may be disappointed, but the narrower en banc decision will still likely prove useful to businesses trying to enforce their arbitration agreements in employment disputes, lawyers told Law360.

“The decision left open the question of the viability of the Broughton-Cruz rule, but the reasoning of the court at the end of the day might please the defense bar more than the plaintiffs bar because although the Ninth Circuit sidestepped the continued viability of the rule, what it did say was that to extent that an exception [to the FAA] for public injunctive relief exists, it is quite a narrow one,” Charles Jung of Nassiri & Jung LLP said.

And employers facing Private Attorney General Act claims, which plaintiffs often argue fit into that exception, can seize on the appeals court’s narrow construction to make the case that the claims should be sent to an arbitrator, employment defense lawyers said.

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Ninth Circuit Holds That FLSA Collective Action and State Law Class Action Are Not Inherently Incompatible

In Class Notice, Collective Action, FLSA, Opt-in, Opt-out on April 12, 2013 at 5:17 pm
Threatened Class Action Against Second Life Br...

Threatened Class Action Against Second Life Brautigan & Tuck Holdings (Photo credit: TaranRampersad)

In a wage and hour class action, Bush v. Integrity Staffing Solutions, Inc., No. 11-16892, __ F.3d __ (9th Cir. Apr. 12, 2013), a Ninth Circuit panel today affirmed in part and reversed in part the district court’s dismissal of warehouse workers’ claims for unpaid wages under the Fair Labor Standards Act and Nevada state law.  The court reversed the dismissal of state law claims on the basis that they would be certified using different class certification procedures than the federal wage-and-hour claims.  Agreeing with other circuits, the panel held that a FLSA collective action and a state law class action are not inherently incompatible as a matter of law even though plaintiffs must opt into a collective action under the FLSA but must opt out of a class action under Federal Rule of Civil Procedure 23.

Our sister circuits have correctly reasoned that FLSA’s plain text does not suggest that a district court must dismiss a state law claim that would be certified using an opt-out procedure. Its opt-in requirement extends only to “any such action” – that is, a FLSA claim. . . . Nor does the legislative history of Section 216(b) support the view of some district courts that allowing both actions to proceed simultaneously “would essentially nullify Congress’s intent in crafting Section 216(b) and eviscerate the purpose of Section 216(b)’s opt-in requirement.”

Judges

Before: Jerome Farris, Sidney R. Thomas, and N. Randy Smith, Circuit Judges. Opinion by Judge Thomas.

The case was argued and submitted at Stanford Law School.

Attorneys

Mark R. Thierman, Jason J. Kuller, Joshua D. Buck (argued), Thierman Law Firm, P.C., Reno, Nevada, for Plaintiffs- Appellants.

Rick D. Roskelley (argued), Roger L. Grandgenett II, Cory Glen Walker, Littler Mendelson, P.C., Las Vegas, Nevada, for Defendant-Appellee.

By CHARLES H. JUNG

Ninth Circuit Holds That Newspaper Reporters Not Exempt

In 23(b)(2) Class, Class Actions, Class Notice, Collective Action, Exemptions, FLSA, Jury, Meal and Rest Breaks, Opt-in, Opt-out, Overtime, Preemption, Professional, Trial, Unfair Competition Law on September 30, 2010 at 12:14 am
New York, New York. Newsroom of the New York T...
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On Monday, the U.S. Court of Appeals for the Ninth Circuit affirmed in “all respects” the trial court’s grant of partial summary judgment to plaintiffs, a judgment after jury and bench trials, and an award of attorney’s fees to plaintiffs.  Wang v. Chinese Daily News, Inc., Nos. 08-55483, 08-56740, — F.3d —-, 2010 WL 3733568 (9th Cir. Sept. 27, 2010).  Among other things, the Ninth Circuit held that plaintiff newspaper reporters were non-exempt.  (Thank you to Randy Renick for bringing this case to my attention.)

Background

Employees of Chinese Daily News, Inc. (“CDN”), a Chinese-language newspaper, filed suit against CDN on behalf of current, former, and future CDN employees based in CDN’s San Francisco and Monterey Park (Los Angeles), California locations.  Id. *1.  Plaintiffs claimed violations of the FLSA, California’s Labor Code, and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, alleging that employees were made to work in excess of eight hours per day and forty hours per week. Id. Read the rest of this entry »