On July 25, 2014, a three-judge panel of the Fourth Circuit refused to accept a Rule 23(f) interlocutory appeal in a case where an employer had asked the district court to decertify a hostile work environment class in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
California is bringing Comcast home—last week, California employers were the beneficiary of some down-home wisdom coming out of San Francisco.
In Comcast Corp. v Behrend, 133 S.Ct. 1426 (March 27, 2013), the Supreme Court held that thelower court erred in failing to consider flaws in plaintiffs’ damages model merely because the damages model would be pertinent on merits issues…..thus, “running afoul of our precedents requiring precisely that inquiry”.
In the wake of Comcast Corp. v. Behrend, a number of different courts have weighed in on the question of whether variations in damages should preclude certification of a litigation class.
On September 30, 2013, Judge George B. Daniels of the U.S. District Court for the Southern District of New York in Johnson, et al v. Nextel Communications, Inc., et. al., 2013 U.S. Dist. LEXIS 141445 (S.D.N.Y. Sept. 30, 2013) certified a class action – pursuant to Rule 23(c)(4) – of 587 employees of Nextel Communications, Inc. (“Nextel”) who allege that Nextel, and the former plaintiffs’ law firm representing these employees, engaged in various illegal acts against them by entering into a Dispute Resolution Settlement Agreement (“DSRA”) to resolve their employment discrimination claims.