Maintain — continued from Page 22
The venue decision: federal versus state court
Plaintiffs and defendants typically
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have conflicting views on whether a case should proceed in state court or federal court, particularly in the class-action con- text. Indeed, there are wide discrepancies between state and federal courts, both procedurally and substantively. For exam- ple, federal courts typically have stricter pleading requirements than state courts, as well as an expedited discovery sched- ule under Rule 26 of the Federal Rules of Civil Procedure. In fact, federal judges have reporting requirements which tend to move their cases faster, on the average, than many state courts. Accordingly, fed- eral courts are often understandably dis- inclined to grant continuances if the delay would unduly hamper the court in keeping to its strict trial schedule. (See e.g., Real v. Hogan (1st Cir. 1987) 828 F.2d 58, 63-64 [need for completion of long- anticipated physical exam lower priority than need to keep on trial schedule].) This expedited pace in federal court
can pose a challenge for plaintiffs seeking class certification as the court must make its certification decision “at an early prac- ticable time” after the action is filed. (Fed. Rules Civ. Proc., rule 23(c)(1)(A).) In light of the fast-tracked discovery schedule, plaintiffs must assure that they have completed all necessary class-related discovery well in advance of their dead- line to file their motion for class certifica- tion. Additionally, federal courts tend to have more stringent class-certification standards. In fact, the Ninth Circuit (and other federal appellate courts) have held that courts must conduct a “rigorous analysis” into determining whether all the prerequisites of Rule 23(a) and (b) have been met before certifying the suit as a class action or denying certification. (See e.g., Zinser v. Accufix Research Inst., Inc., (9th Cir. 2001) 253 F.3d 1180, 1186 [court must conduct rigorous analysis before certifying]; In re Hydrogen Peroxide Antitrust Litig. (3d Cir. 2008) 552 F.3d 305, 309-310 [class certification is proper only after “rigorous analysis” of prerequi- sites; court must conduct thorough
24— The Advocate Magazine APRIL 2011
examination of factual and legal allega- tions and find that each Fed. R. Civ. P. 23 requirement is met].) Indeed, in the 1990’s, a series of federal circuit courts repeatedly rejected class certification, facilitating the perception that federal courts are tougher forums for class certi- fication. (See e.g., Castano v. Am. Tobacco Co. (5th Cir. 1996) 84 F.3d 734; In re Am. Med. Sys. (6th Cir. 1996) 75 F.3d 1069; In re Rohne-Poulenc Rorer, Inc. (7th Cir. 1995) 51 F.3d 1293; In re Gen. Motors Corp. Pick- up Truck Fuel Tank Prods. Liab. Litig. (3rd Cir. 1995) 55 F.3d 768.)
The advantages of pursuing a wage- and-hour class action in state court
In the wage-and-hour context, the
procedures governing federal collective actions can also pose challenges for plain- tiffs. For example, state law wage-and- hour class actions are usually “opt out,” meaning that when potential class mem- bers are sent notice about class actions they must opt out to be excluded from the class. Most putative class members do not exercise the option of opting out, so state wage-and-hour class actions tend to be larger than federal FLSA wage-and- hour collective actions, which are “opt in.” In addition to the opt-in require- ment, claims brought under the FLSA are subject to more stringent damages formu- las and a broader definition of employees who are exempt from overtime. It bene- fits plaintiffs to resist employers’ attempts to remove state claims to federal court on diversity grounds, as well, since attorneys’ fees are more limited and federal verdicts require a unanimous jury. In California, state labor law has
more restrictive definitions for the cate- gories of workers that qualify as exempt from overtime pay requirements (see Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 [85 Cal.Rptr.2d 844]). Additionally, California courts can impose the remedy of disgorgement of profits into a fluid recovery fund for Labor Code violations established in a class action. Moreover, the statute of limi- tations under the FLSA is two years and
See Maintain, Page 26
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