01
Apr

Before 2003, Rule 23 of the Federal Rules of Civil Procedure provided that “[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”  This ambiguous language created  a circuit split regarding whether court approval was required for settlement and dismissal of a putative class action prior to class certification. In 2003, the ...

01
Dec

PART 2 In an earlier post, I explained that in Washington the attorney-client privilege held by corporations protects communications between corporate counsel and lower-level corporate employees, with some exceptions.  Does this also rule protect communications between counsel for government agencies and lower-level government employees?  Although there does not appear to be a published Washington case on point, the answer is very likely yes. Washington law is clear that the attorney-client privilege, codified at RCW 5.60.060(2), protects communications between the legal advisors ...

25
Nov

PART 1 In Upjohn Co. v. United States, the United States Supreme Court held that the attorney-client privilege protected communications between counsel for Upjohn – who were investigating possible illegal activities by the company – and lower-level company employees.[1]  The Supreme Court rejected the Sixth Circuit Court of Appeals’ holding that under the so-called “control group” test, the privilege only covered communications between counsel and “officers and agents … responsible for directing Upjohn’s actions in response to legal advice.”

04
Nov

Last September, the Washington Court of Appeals held that the “economic reality” test is the proper method to determine whether an entity is a joint employer for purposes of imposing liability under Washington’s Minimum Wage Act (“MWA”).[1]   The Washington Supreme Court has now affirmed.  An earlier blog post about the Court of Appeals decision, Becerra v. Expert Janitorial, is available here.  Becerra involved allegations by a group of janitors that they were underpaid in violation of the ...

15
Apr

Recently, the Washington Court of Appeals was asked to decide whether the collective-bargaining statute for Washington State employees protects employees’ “concerted activities” from employer interference, restraint, or coercion.[1]  “Concerted activities” are those jointly undertaken by employees in an attempt to improve their working conditions.[2]  In this case of first impression, the court held that the concerted activities of Washington’s public employees are not protected. The case involved two emails sent by Department of Corrections officer Phyllis Cherry ...

10
Dec

Many employers rely on non-competition and non-solicitation Agreements with employees (collectively, “noncompetes”) to protect confidential or proprietary information and business relationships when the employee leaves.  Properly used, noncompetes can serve a valuable purpose—but only if they are enforceable.  In litigation over noncompetes, the first and potentially decisive battle concerns this legal issue. The enforceability of noncompetes is decided by state law, and while nearly all states agree that noncompetes are a disfavored restraint on trade, just how disfavored can vary greatly.  ...

13
Nov

In the past, some defendants in class actions under Federal Rule of Civil Procedure 23 have attempted to deprive courts of subject matter jurisdiction by making a pre-class certification offer of judgment to the class representative in full satisfaction of his claims.  This was done on the theory that a defendant could moot the class representative’s claims by giving him everything he was demanding and thereby get rid of the entire class action since no class had yet been certified. The ...

10
Oct

Addressing a question of first impression, the Washington Court of Appeals held last month that the “economic reality” test is the proper method to determine if an entity is a joint employer for purposes of imposing liability under Washington’s Minimum Wage Act (“MWA”).[1]  The case involved Fred Meyer’s use of a contractor for janitorial work at its retail stores.  Fred Meyer contracted with Expert Janitorial, who in turn contracted with All Janitorial, to provide janitors.  A number of ...

10
Sep

Federal Rule of Civil Procedure 68 is a risk-shifting tool designed to encourage settlements in civil litigation—in essence, it serves to penalize a plaintiff who refuses to accept a reasonable settlement offer by making him responsible for all “costs” incurred after the date on which the offer was made.  It is triggered where the plaintiff offeree refuses to settle, and then fails to obtain a judgment that is more favorable than the settlement offer.  Because an offer of judgment shifts ...

29
Aug

On June 24 the U.S. Supreme Court announced its decision in University of Texas Southwestern Medical Center v. Nassar.  Though it did not garner the attention of the Proposition 8 and DOMA cases, the Nassar decision will have substantial impact on employees bringing claims for retaliation under Title VII. In Nassar, the issue before the Court was what standard of causation to apply for claims of employment retaliation brought under 42 U.S.C. § 2000e-(3)(a).  The Plaintiff/Respondent argued ...