Posts in Litigation.
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On May 14, 2024, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division on Civil Rights (“DCR”) released Guidance on Discrimination and Out-of-State Remote Workers (“the Guidance”), explaining the New Jersey Law Against Discrimination’s (NJLAD) application to remote employees. Noting the rise of telework following the COVID-19 pandemic, the Guidance states that the NJLAD is not limited to protecting only New Jersey-based employees but takes the position that it protects aggrieved employees of New Jersey employers “regardless of their ...

Blogs
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As featured in #WorkforceWednesday:  This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:

Trade secret and non-compete litigation can result in massive damage awards, but those cases can also be unpredictable. Many viable trade secret claims go unexplored due to financial limitations or a lack of willingness to invest in litigation.

Attorney and Spilling Secrets host Erik W. Weibust and three special guests—Epstein Becker Green’s Managing Partner, James P. Flynn; Stephanie Southwick of Omni Bridgeway; and Mary Guzman of Crown Jewel Insurance—discuss the monetization of trade secrets litigation.

Blogs
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Employers with employees in the District of Columbia have until Monday, October 31, 2022, to comply with a specific notice provision contained in the D.C. Non-Compete Clarification Amendment Act of 2022 (B24-0256) (the “Amendment”).

Blogs
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On September 20, 2022, Mayor Eric Adams announced that New York City’s COVID-19 vaccine mandate for private employers is ending.  The City’s mandate for municipal employees, however, will remain in effect.

Blogs
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As featured in #WorkforceWednesday:  This week, we look at the significance of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the impact that the overturning of Roe v. Wade will have on employers.

Blogs
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On June 15, 2022, the U.S. Court of Appeals for the Fifth Circuit held that COVID-19 does not qualify as a “natural disaster” under the federal Workers’ Adjustment and Retraining Notification (“WARN”) Act, effectively foreclosing one important argument used by employers in defense of COVID-19-related WARN lawsuits.  As this is the only appellate court to affirmatively interpret WARN’s “natural disaster” exception, barring a split by other circuits, this case sets an important precedent in ongoing COVID-19-related WARN litigation, as well as WARN suits related to future pandemics.

Blogs
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As featured in #WorkforceWednesday:  This week, we look at two significant court decisions for employers and bring you a practical update on new bereavement leave rules in Illinois.

Blogs
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Recent New York legislation will afford a class of sexual abuse victims the opportunity to sue their abusers, where they previously would have been time-barred. On May 24, 2022, New York Governor Kathy Hochul signed into law the Adult Survivors Act (“ASA”) (S.66A/A.648A), which creates a one-year lookback window for alleged survivors of sexual assault that occurred when they were over the age of 18 to sue their alleged abusers regardless of when the abuse occurred. The one-year window will begin six months from signing – on November 24, 2022 and will close on November 23, 2023. In 2019, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for  certain enumerated sex offenses. However, that legislation only affected new cases and was not retroactive. In contrast, the ASA permits individuals who were over the age of 18 when any alleged abuse occurred to sue for civil damages regardless of the statute of limitations.

Blogs
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Over the past several years, workplace artificial intelligence (“AI”) tools have matured from novel to mainstream.  Whether facilitating attracting, screening, hiring, and onboarding job applicants or charting the career path or promotability of current employees, workplace AI tools will likely become more prevalent.  Legislators and administrative agencies have taken note and are in various stages of examining and regulating these tools, with the primary goal of ensuring that they do not violate federal and state laws prohibiting workplace discrimination.

Blogs
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Where is the impact of alleged employment discrimination? That is the question when evaluating whether a remote worker can assert claims under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), according to a recent decision by U.S. District Judge Edgardo Ramos. Relying on state law, Judge Ramos concluded that the basis for subject matter jurisdiction has not changed during the COVID-19 pandemic and remains grounded in New York’s “Impact Test,” meaning courts will look to where the impact of alleged discriminatory conduct was felt. Thus, regardless of whether an employer is located in New York, the anti-discrimination laws are intended to protect employees who live or work in New York.

Blogs
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Employees who resign from work, sue their employer, and assert “constructive discharge” shoulder a heavy burden to demonstrate that they had no choice but to resign. A recent decision of the Massachusetts Appeals Court, Armato v. Town of Stoneham, shows just how heavy that burden is.

Blogs
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The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq.

On March 31, in Badgerow v. Walters, by an 8-1 majority (opinion written by Justice Kagan, and a lone dissent by Justice Breyer), the Court reversed an order of the Fifth Circuit and held that the federal courts do not have authority to “look through” an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.

Blogs
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Employers in New York State should be aware of recent new laws as well as some pending bills, all of which seek to bolster harassment and discrimination protections for employees.  As detailed below, New York Governor Kathy Hochul recently signed several bills into law that expand harassment and discrimination protections, while the New York Senate recently passed more bills that would further bolster safeguards for employees and independent contractors in the state.

Blogs
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Next month, New Jersey private employers will need to start informing drivers before using GPS tracking devices in the vehicles they operate. A new state law that becomes effective April 18, 2022, requires employers to provide written notice to employees before using “electronic or mechanical devices” that are “designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” The notification requirement applies to both employer-owned or -leased and personal vehicles.

Blogs
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On March 3, 2022, President Biden, as expected, signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”) into law. As we previously explained, the Act amends the Federal Arbitration Act (FAA) to make pre-dispute arbitration agreements for sexual assault and sexual harassment claims invalid and unenforceable. Parties remain free, however, to mutually agree to arbitration after a claim has been asserted. The new law delegates any disputes regarding the Act, including as to the arbitrability of claims, to the courts, and not an arbitrator, to decide.

Blogs
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A bill that will prohibit mandatory arbitration of sexual assault and sexual harassment claims is on its way from the House and Senate to President Biden for his signature.  It appears likely that the President will sign the bill, given that a statement issued by the President’s Office earlier this month states that the “Administration supports” passage of the bill.

Blogs
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The Supreme Court’s January 24, 2022 decision in Hughes v. Northwestern University, has caused alarm in some corners, with panicked predictions of a proliferation of ERISA suits alleging that defined contribution plans provided imprudent investment options.  However, Hughes should be more properly understood as rejecting an attempt by the U.S. Court of Appeals for the Seventh Circuit to impose a novel limit on excessive fee suits.  The Supreme Court instead emphasized the application of its existing precedent in Tibble v. Edison International, 575 U.S. 523 (2015).

The Seventh Circuit had dismissed a class action complaint alleging the trustees of Northwestern Universities’ retirement plans breached their fiduciary duties by including imprudent investments among the investment options offered under the plans.  The trustees offered more than 400 various investment options, several of which the plaintiffs asserted were imprudent and many of which were not.  The Seventh Circuit held that the plaintiffs’ allegations failed as a matter of law (that is, could be dismissed without discovery or trial) because plaintiff’s preferred investment options were available under the plan (albeit alongside the allegedly imprudent options).  Therefore, the Seventh Circuit considered the trustees to be blameless for any fiduciary breaches because the plaintiffs simply could have avoided the allegedly imprudent investments and chosen the prudent ones.

Blogs
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On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”).   Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.

In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”).  Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.

Blogs
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On January 26, 2022, legislation (“Amendments”) amending and significantly expanding the scope of New York’s whistleblower laws will take effect.

As our previous Insight explained in more detail, the Amendments make it much easier for individuals to bring a retaliation claim under New York Labor Law § 740 (“Section 740”) and increase coverage for workers who allege that they have been retaliated against for reporting suspected employer wrongdoing to include former employees and independent contractors.

Blogs
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Earlier this year, the New York State Workers' Compensation Board adopted amendments to the regulations for the New York Paid Family Leave Benefits Law clarifying that when Paid Family Leave (PFL) is taken intermittently, the maximum number of intermittent leave days an employee may take is based on the average number of days the employee works per week.

Blogs
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On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

Blogs
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On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

Blogs
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On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”).  The CMS interim final rule, presently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation, issued a ruling on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

Blogs
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Last week, the Supreme Judicial Court of Massachusetts (“SJC”) unanimously ruled that the state Personnel Records Law, M.G.L. c. 149, § 52C, provides for a public policy exception to employment at will. Writing on behalf of the full panel in Meehan v. Medical Information Technology, Inc., SJC-13117 (Dec. 17, 2021), Justice Kafker held that an employer cannot terminate an at-will employee for exercising his statutory right to file a rebuttal for inclusion in his personnel file, as doing so would constitute wrongful discharge in violation of public policy. This decision ...

Blogs
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November 17, 2021, the Department of Labor (“DOL”), National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) conducted a webinar on Ending Retaliation and Promoting Workers Rights.  The webinar is the first component of a “Joint Initiative” devoted to “vigorous enforcement” of laws against retaliation, through closer inter-agency cooperation.  The webinar was moderated by EEOC Regional Director Robert Canino and involved over 90 minutes of detailed remarks from Solicitor of Labor Seema Nanda, NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows and Acting DOL Wage and Hour Division Director Jessica Looman.

Blogs
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As featured in #WorkforceWednesday:  This week, we focus on what can be learned from the Equal Opportunity Employment Commission’s (EEOC’s) fiscal year (FY) 2021 filings as employers continue to navigate COVID-19 in the months ahead.

EEOC: Back in Enforcement Action

The EEOC increased its FY 2021 filings by 12 percent, signaling to employers that the agency is returning to a more robust enforcement level after a downturn in activity last year amid COVID-19. Attorneys Jim Petrie and Amy Bharj tell us more about what we can learn from the past year’s cases.

Blogs
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Supreme Judicial Court Clarifies Breadth of COVID-19 Tolling Order

During the early days of the COVID-19 pandemic, the Supreme Judicial Court of Massachusetts (“SJC”) entered an order tolling the statutes of limitations applicable to civil claims. Although some practitioners interpreted the order as tolling only those statutes of limitations set to expire while the order was in effect, in Shaw’s Supermarkets, Inc. v. Melendez, SJC-13054 (Sept. 3, 2021), the SJC rejected such a narrow interpretation and held that its order tolled all statutes of limitations, regardless ...

Blogs
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As we wrote in our last Marijuana Legalization Rundown, state legislatures across the country have been busy enacting cannabis legalization laws this year.  Along with those laws has come a number of recent court decisions interpreting the application of cannabis legalization laws.  This post summarizes some of the significant decisions issued this year.

California     

On April 28, 2021, the U.S. District Court for the Central District of California granted summary judgment to the defendant employer on claims brought under the Fair Employment and Housing Act ...

Blogs
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Employers in the First Circuit know that unconscionability challenges to employment arbitration agreements are commonplace. In Trainor v. Primary Residential Mortgage, Inc., the U.S. District Court for the District of Rhode Island recently addressed an employee’s arguments that an agreement’s venue clause requiring a Rhode Island employee to arbitrate her claims in Utah and a provision excluding certain claims from the scope of the arbitration agreement rendered the arbitration agreement unconscionable and unenforceable. The court rejected the first argument based ...

Blogs
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As featured in #WorkforceWednesdayThis week, we recap the U.S. Supreme Court’s term and its impact on employers.

U.S. Supreme Court Employment Law Decisions in Review (see video below)

The Supreme Court’s term ended on July 1, 2021. Attorney Stuart Gerson discusses two main cases from the term with labor and employment implications, Cedar Point Nursery v. Hassid and TransUnion LLC v. Ramirez. He also discusses the Court's interest in ERISA, including a case in which the Court granted certiorari that employers may wish to track in the next term.

Biden Takes Action to Limit ...

Blogs
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The Federal Rules of Civil Procedure are intended to promote the “just, speedy, and inexpensive determination” of lawsuits. For companies defending baseless employment claims, those words may feel like an empty promise. The First Circuit’s recent decision in Alston v. Spiegel sanctioning an attorney for filing frivolous discrimination and retaliation claims, however, reminds employers that there are strategies for deterring such claims

Facts

In late 2015, attorney Brooks Ames filed a complaint on behalf of Gerald Alston, a former firefighter for the Town of Brookline ...

Blogs
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Can an employer be held liable under the False Claims Act (“FCA”) for retaliation if it takes some adverse action against a former employee? Until recently, only one federal appellate court had addressed the issue, holding that the FCA does not cover post-employment retaliation.[1] However, on April 1, 2021, the Sixth Circuit reached the opposite conclusion in United States ex rel. Felten v. William Beaumont Hospital, creating a circuit split and different rules for employers in different jurisdictions.

Background

In 2010, David Felten filed an action on behalf of the United ...

Blogs
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As featured in #WorkforceWednesday:  This week, we look at leadership changes and new religious guidance from the Equal Employment Opportunity Commission.

Video: YouTubeVimeoInstagram.

Blogs
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On December 2, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced a new interactive data search and mapping tool, named “EEOC Explore,” which permits users to access “the most current, granular, and privacy protected aggregate EEO-1 data publicly available,” covering over 56 million employees and 73,000 employers across the United States. According to the agency, EEOC Explore “enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the ...

Blogs
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The first legal challenge to Executive Order 13950 (the “Order”) has been made. On October 29, 2020, the NAACP, representing the National Urban League, and the National Fair Housing Alliance, filed a civil rights class action lawsuit in the United States District Court for the District of Columbia (Case No. 1:20-cv-03121), requesting injunctive and declaratory relief against the President of the United States, the U.S. Secretary of Labor and the U.S. Department of Labor. Specifically, the lawsuit seeks for the Court to strike down the Order, declaring it unlawful and invalid ...

Blogs
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In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorneys Lauri F. Rasnick and Frank C. Morris, Jr. address potential discrimination class actions related to office reopenings, the changing way in which we work, and the impact that the pandemic has had on individuals in protected classes.

As many employers think about reopening their offices and other workspaces, they should consider how they do so very carefully in order to avoid decisions that may adversely impact certain protected groups or lead to disparate decision making.

Blogs
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As featured in #WorkforceWednesday:  While some might expect U.S. Supreme Court nominee Amy Coney Barrett to be a pro-employer judge, her record on labor and employment decisions could tell a different story. Attorney David Garland discusses Judge Barrett’s record and what it could mean for employers should she be confirmed to the High Court. Read more about Judge Barrett’s record (subscription required).

Video: YouTubeVimeoMP4Instagram.

Blogs
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As featured on #WorkforceWednesday:  Like many of you, this week, we are honoring Justice Ruth Bader Ginsburg and reflecting on her employment law legacy. See the video below.

Video: YouTubeVimeoMP4Instagram.

Blogs
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Featured in #WorkforceWednesday:  As employers plan for workers to return to work, utilizing COVID-19 liability waivers is one idea that businesses are thoroughly considering. Attorney Jimmy Oh discusses the risks and effectiveness of these waivers.

Video: YouTubeVimeoMP4Instagram.

 

Blogs
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On June 3, 2020, the Ninth Circuit dismissed a wage and hour class action on the grounds that once the class representative plaintiff settled his individual claims and no longer had any financial stake in the litigation’s outcome, the entire litigation was moot.

In Brady v. AutoZone Stores, Inc. and Autozoners, LLC, Plaintiff Michael Brady brought a class action suit against AutoZone Stores, Inc. and Autozoners LLC for allegedly failing to provide its nonexempt employees with meal breaks in accordance with Washington state law.  After several years of litigation, Brady settled ...

Blogs
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In a recent 5-4 decision, the Supreme Court, in Thole v. U.S. Bank N.A., 590 U.S. __ (2020), held that participants in defined benefit pension plans lack standing to sue plan fiduciaries for allegedly imprudent plan investments where the participants continue to receive their full benefits and no imminent risk that they will cease receiving their full benefits appears.

Defined benefit plans—once the staple of employer-sponsored retirement plans but now a diminishing share of that group—guarantee a monthly payment in retirement using a formula based on years of service and ...

Blogs
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Much ink has been spilled in recent weeks about how some recipients of Paycheck Protection Program (“PPP”) relief obtained their loans through mistakes or false pretenses. Now banks are coming under fire for their lending practices in connection with this hastily prepared and implemented program, which left them grappling with how to properly issue loans in the face of procedural and substantive gaps in the law. Many lenders tried to fill these gaps by supplementing the PPP application to address practical concerns not covered in the law. Two recent cases, however, demonstrate ...

Blogs
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On April 7, 2020, the California Court of Appeals (the “Court”) upheld summary judgment for two professional employer organizations (referred to in the decision as a “staffing agencies”) accused of harassment and discrimination by one of its “leased” employees. In Ducksworth v. Tri-Modal Distribution Services, the Court found that joint employers—and more specifically staffing agencies—cannot be held liable for harassment and discrimination claims absent a showing that they participated in or were involved in the alleged wrongful conduct.

Plaintiffs ...

Blogs
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On April 30, 2020, the California Supreme Court (“Court”) ruled that claims brought pursuant to California’s Unfair Competition Law (“UCL”) and the False Advertising Law (“FAL”) are not entitled to a jury trial.

In Nationwide Biweekly Administration, Inc. et al., v. The Superior Court of Alameda County, the federal Consumer Financial Protection Bureau (“CFPB”) brought an action against Nationwide Biweekly Administration, Inc. (“Nationwide”) and others, alleging that Nationwide and the other defendants falsely advertised their services and as a ...

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