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Employment Class and Collective Actions

Employment Class and Collective Actions Proceedings of the New York University 56th Annual Conference on Labor

Author: David Sherwyn; Samuel Estreicher
Publisher: Kluwer Law International
ISBN: 9789041125057
Published In: January 2009
Format: Hardback , 1188 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Long regarded as a powerful means to seek individual damages against a corporate defendant, class actions have become a staple of the U.S. litigation system. In recent years, however, several highly significant Supreme Court decisions have weakened the commonality claims of defendants, particularly in workplace discrimination actions. In light of this background, the trends and prospects of employment class actions were the theme of the 56th annual proceedings of the prestigious New York University Conference on Labor, held in May 2003. This important volume reprints the papers presented at that conference, as well as some additional contributions.

Among the considerable expertise brought to bear on this controversial subject, readers will find insightful analysis of such issues as the following:

Effect of class actions on losing companies;
Importance of class actions to Title VII enforcement;
Obstacles to class litigation;
Compliance and internal enforcement challenges for large employers;
Opt-in vs. opt-out alternatives for class members;
Value and effectiveness of pattern or practice test cases;
Legal limits of group identity;
Shifting of the burden of proof;
Authority of arbitrators to proceed on a classwide basis; and
Countering statistical claims of expert witnesses.

Because class actions are based on tension – that between commonality and individuation – they tend to accumulate precedent along a spectrum from disconnected disparity to meaningful resolution. In this deeply informed and thought-provoking book, lawyers and academics concerned with both the interests of employers and of employees will proceed with increased awareness as they work on reconciling the practical and theoretical constraints of class litigation.

Preface. 1. The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and its Effects; M. Selmi.
2. Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment; S. Estreicher, K. Yost.
3. Class and Representative Actions; R.T. Seymour, J.F. Aslin.
4. Fighting to Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo’s Predomination Requirement Threatens to Undermine Title VII Enforcement; S.M. Malveaux.
5. The Uncertain Future of Title VII Class Actions after the Civil Rights Act of 1991; D.F. Piar.

6. A Classless Act: The Ninth Circuit’s Erroneous Class Certification in Dukes v. Wal-Mart, Inc.; A.B. Lauchheimer.
7. Too Many Riches? Dukes v. Wal-Mart and the Efficacy of Monolithic Class Actions; R. Tallon Pickens.
8. The Possibility of Avoiding Discrimination: Considering Compliance and Liability; M. Hart.
9. Preclusion in Class Action Litigation; T.B. Wolff.
10. Opt-In Class Actions: Collective Litigation under the FLSA, ADEA and EPA; M.S. Dichter.

11. Not Without Class: Test Cases in Lieu of Class Certification as a Paradigm for Litigating Multi-Plaintiff Harassment Cases; S. Arenson, C.J. Ackermann.
12. ‘Pattern or Practice’ Discrimination Litigation; M. Delikat.
13. Disability, Disparate Impact, and Class Actions; M.A. Stein, M.E. Waterstone.
14. Collective and Class Action Issues under the Fair Labor Standards Act and State-Based Wages Statutes; A.T. Klein, N. Ruan, S. Farhang.
15. Working with the Equal Employment Opportunity Commission; W.N. Outten, P. Hoffman.

16. Green Tree v. Bazzle in the Supreme Court: ‘How to Succeed in Blocking Class Actions in Arbitration Without Really Saying So’; D.B. Edelman.
17. Arbitration Agreements, Unconscionability, and Bans on Class Actions: Dueling Magic Wands? The California Experience; H.D. Lederman.
18. When Is Cost an Unlawful Barrier to Alternative Dispute Resolution? The Ever Green Tree of Mandatory Employment Arbitration; M.H. LeRoy, P. Feuille.
19. Arbitration and the Individuation Critique; W.M.C. Weidemaier.
20. Building an Internal Defense against Class Action Lawsuits: HR Practices Audits; G.R. King, J.D. Winchester, L.A. Clary, K.J. Potter.

21. ‘Statistical Dueling’ with Unconventional Weapons: What Courts Should Know about Experts in Employment Discrimination Class Actions; W.T. Bielby, P. Coukos.
22. Symposium: Emerging Issues in Class Action Law: Backdoor Federalization; S. Issacharoff, C.M. Sharkey.
23. From ‘Predominance’ to ‘Resolvability’: A New Approach to Regulating Class Actions; A. Erbsen.