A Ground Floor Opportunity? Litigation Finance

I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients.  Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.

However, this article describing the types of folks and money being put in litigation financing makes it clear to me that this is a phenomenon that will be with us at least until the money guys feel like they have given it a fair shot to see if it provides the returns they hope. Litigation Finance: The Next Hot Trend?

I have yet to see it in single plaintiff type employment cases, and except for the few large whistleblowing or qui tam cases, don't see it as likely. But large scale class and collective actions? That I see as a realistic likely place for the world of workplace law and third party litigation financing to intersect.

Talking Money at Work

Today's Wall Street Journal discusses workers willingness to talk with their peers about what they are being paid as a generational change. Workers Share Their Salary Secrets. But as the article notes, in the past many employers prohibited such talk.

Even though such rules may have gone unchallenged, that is one practice that the NLRB has long held infringes an employee's rights under the NLRA. Given that many employers don't think about the NLRB or the NLRA because they don't have a union, my guess is quite a few Journal readers today are saying to themselves, "Wow, I didn't know we couldn't do that."

Before the latest procedural tangle that has ensnared the Board, was making a much greater effort to assert its role in the lives of non-union employers, and I don't see that effort subsiding in the future. Once (if?) we have a duly constituted Board, I am afraid that many non-union employers may be making similar statements more frequently.

Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?

I had hoped, although without any real basis, that when the Supreme Court dealt with a collective action case this term, by deciding whether or not an offer that would completely resolve an individual plaintiff's claim prevented a collective action from going forward,  that they might somehow wander into what seems to be an issue never subject to review, what is the standard for conditional certification of a collective action under 29 U.S.C. 216(b).

Instead, what we got, at least according to Justice Kagan's dissent, which had the odd character of being both casual and derisive of the reasoning of both the majority and the 3rd Circuit, was a decision that can be "relegated ... to the furthest reaches of your mind: The situation it addresses should never again arise."  Genesis Healthcare Corp. v. Symczyk  (U.S. 4/16/13).

That holding was assuming, as it said the employee had conceded, the offer made her by the company, did moot her claim, then she had no right to proceed with her collective action on the part of others. Justice Kagan said making that concession was a mistake made by both the plaintiff and the 3rd Circuit, and was in fact something that should never happen again.

What would have made this a precedential case was addressed by Justice Thomas this way:

While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.

Given that, I think Justice Kagan is close to correct, this is a case that is the "most one-off of one-offs." And she makes a fairly decent argument, joined by the other three members of the liberal wing of the Court, that the answer to the question left open above would be, no.

One wild guess would be that Justice Kennedy was undecided on that issue, and so this was a way for the Court to punt, until he makes up his mind.

In the 5th Circuit, it does undermine the validity of  Sandoz v. Cingular Wireless, LLC (5th Cir. 2008), which had undermined the defense strategy in this circuit. So it presents the opportunity to try it again, and see how the 5th Circuit comes out on the question left unanswered by today's decision.

But ultimately, we really are talking about a relatively small number of cases, when the big question is the standard to apply in conditional certification Is the "lenient standard" really the correct one?

It seems so wrong, that with little substance, plaintiffs can invoke the powers of the court to help them summon a group of fellow would be plaintiffs, who would never have brought a claim on their own. Then there is either a settlement or a costly course of discovery, after which if there is no settlement,  often the court decertifies the class that it conditionally certified.

There was really no basis for the Supreme Court to have addressed that today, but the question remains.

Quorum, Heck a Fully Appointed NLRB?

Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of  the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce.  President Obama Announces More Key Administration Posts.


Chairman Pearce is currently the only Board member who has been confirmed by the Senate. The two members of the Board serving under challenged recess appointments, Sharon Block and Richard Griffin, were earlier re-submitted to the Senate for confirmation.

It will be interesting to see how this plays out as the longer the Board continues without a confirmed quorum, the more uncertainty in labor relations is being sown.

And lawyers wonder why ...

Clients might wonder about our priorities.

Mobile devices such as iPads are becoming an essential part of the job for many attorneys. "The fact that you can do so much work today on a small iPad that used to require a heavy, bulky laptop a few years ago is a tremendous leap forward in productivity," said Brett Burney of Burney Consultants. Mobile devices can help attorneys in several ways, such as by allowing them to track billable hours, work while traveling and stay in touch with clients.  (emphasis added)

Actually, this is not really something that can be blamed on lawyers, as this is the PLI Smart Brief synopsis of a story, The Mobile Lawyer, in the ABA Journal.

But, perhaps the fact that someone summarizing what they thought would be most important to lawyers who might be reading it, chose to put tracking billable hours first, tells us something as well.

Bullying and My Predictive Abilities — New York at Risk

If there is anyone who started with me when I made my first post in July, 2002 you will know that one topic that has come up repeatedly is my watch on the movement to have some state enact an anti-bullying law. It is much easier now than in the early days, because of  Professor David Yamada's Minding the Workplace Blog, which covers those developments regularly.

In addition to being a tenured professor and Director of the New Workplace Institute at Suffolk University School of Law in Boston, he is also the author of the model Healthy Workplace Act, which has been the basis for most of the bills which have been introduced in various legislatures (23 states according to the Healthy Workplace Campaign website).

The first was just 10 years ago.  Already in 2013, there have been eight states where some version has been introduced. Professor Yamada has an update in this post, Healthy Workplace Bill: March 2013 update.

In that article David notes that he and I have had a cordial disagreement over the years over the need for this legislation, as he also notes my recent sigh that I was becoming resigned to some state adopting such a cause of action much quicker than I would have ever thought when I first posted on the topic in January 2003.

Hopefully, that prediction will turn out as accurate as my March Madness brackets do, the latest versions of which are less than 72 hours from demolishment.

But, if I were to go even further out on a limb and predict which state, New York would not be a bad prediction. Why? Well because on May 12, 2010, the New York Senate became the first house of any state legislative body to pass anti-bullying legislation which would create a private cause of action. Anti-Bullying Legislation Passes NY Senate. The bill did not pass the Assembly and so died at the end of the legislative session.

However, new legislative session and in the 150 member Assembly, AB 4965 was introduced on February 13th, with 74 sponsors. (Do the math, it is not pretty for opponents.) The companion bill S3863 was introduced in the Senate on February 25.

If you happen to live or do business in New York, you might check out some of the reasons why I think this legislation is so dangerous, see Bullying As a Cause of Action — One Large Step Closer.

And if you agree, please send a copy to your Senator or Assemblyman.

Quickly.

Stipulating Your Way Out of Federal Court

In certain parts of Texas, it is not uncommon for plaintiffs to stipulate that they will not demand or accept an amount in excess of $74,999.99 in order to avoid the amount in controversy requirement when the grounds for removal is diversity.

It works, and yesterday was explicitly sanctioned by the U.S. Supreme Court in The Standard Fire Insurance Co. Knowles (3/20/13):

Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so.  ... But the key characteristic about those stipulations is that they are legally binding on all plaintiffs.

But that was really not the point of the holding, just an explanation along the way to the real holding of the Court in Knowles: a plaintiff filing a Rule 23 class action, can not avoid federal jurisdiction by stipulating to an amount in controversy less than the $5 million threshold for removal under the Class Action Fairness Act of 2005,  CAFA for short.

In a straight forward and unaminous decision, Justice Breyer makes a simple point. In order to avoid federal court the stipulation must be binding and no one has the power to bind future members of a class at the time of filing.