Kristina Yost

Bio: Kristina Yost is an academic researcher from Jones Day. The author has contributed to research in topics: Arbitration & Value (ethics). The author has an hindex of 2, co-authored 4 publications receiving 5 citations.

Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment

Abstract: This article represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are likely to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of certain “off the clock” wage-hour and ERISA claims, the average individual potential recovery found was not an insignificant amount, and though still generally smaller than the average employment arbitration awards, calls into question the “negative value” justification for the claimed superiority of class action litigation. Much work needs to be done to determine if these potential recoveries would be obtainable in individual litigation or arbitration, or whether there is something special about the class or collective action vehicle that makes possible such potential recoveries. We would also need to account for a selection bias in class action cases—that plaintiffs’ lawyers may underreport less favorable settlements and are highly selective in picking cases for class action treatment. If so, the characteristics of individual and class claims may differ in systematic ways. In the interim, our data show that potential individual recoveries for many types of employment disputes are valuable enough to place in question the arguments that these are “negative value” cases that will be brought forward, if at all, only through the class or collective action vehicle.

Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment

Abstract: This paper represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue them on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are slated to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of certain off the clock wage-hour and ERISA claims, the average individual potential recovery found was not an insignificant amount, though still generally smaller than the average employment arbitration awards. This result calls into question the negative value justification for the claimed superiority of class action litigation. Much work needs to be done to determine if these potential recoveries would be obtainable in individual litigation or arbitration, or whether there is something special about the class action vehicle that makes possible such potential recoveries. We would also need to account for a selection bias in class action cases - that plaintiff lawyers may under-report less favorable settlements and are highly selective in picking cases for class action treatment. If so, the characteristics of individual and class claims may differ in systematic ways. In the interim, our data shows that potential individual recoveries for many types of employment disputes are valuable enough to place in question the arguments that these are negative value cases that will be brought forward, if at all, only through the class action vehicle.

University IP: The University as Coordinator of the Team Production Process

Abstract: This paper focuses on intellectual property (“IP”) issues in the university setting. Often, universities require faculty who have been hired in whole or in part to invent to assign inventions created within the scope of their employment to the university. In addition, the most effective way to secure compliance with the Bayh-Dole Act, which deals with ownership of inventions involving federally funded research, is for the university to take title to such inventions. Failure to specify who has title can result in title passing to the government. The university then decides whether to process a patent application, and if it does, whether to pursue options for commercialization, frequently including licensing the invention to industry.A number of academics and other commentators have contended that it would be more efficient and fair to allow faculty to own the rights to their own inventions, even if they have been hired in part to invent and the inventions are created within the scope of employment. The debate, it should be noted, is only over the appropriate default rule. Not even critics of the current institutional default rule would object to faculty assignment of ownership rights to the university. Since faculty are not generally in a good position to pursue commercialization on their own, the question for public policy is what are the benefits and costs of allowing faculty, in the first instance, to decide whether the university or some other entity should manage the commercialization process. This paper evaluates the case for changing the ownership default rule. First, we provide background on patent rights in the employment setting and how patent rights are applied in a university environment. Second, we explain how most universities handle faculty inventions and technology transfer. Third, we lay out and challenge some of the key arguments critics have offered in support of faculty control of patent rights. Finally, we suggest that faculty inventions which use other university resources, including personnel such as graduate and post-doctoral students, are best viewed as a product of a team production process rather than solely the invention of the faculty member; and the university generally is the more efficient manager of the commercialization effort.

University IP: The University as Coordinator of the Team Production Process

Abstract: This paper focuses on intellectual property (“IP”) issues in the university setting. Often, universities require faculty who have been hired in whole or in part to invent to assign inventions created within the scope of their employment to the university. In addition, the most effective way to secure compliance with the Bayh-Dole Act, which deals with ownership of inventions involving federally funded research, is for the university to take title to such inventions. Failure to specify who has title can result in title passing to the government. The university then decides whether to process a patent application, and if it does, whether to pursue options for commercialization, frequently including licensing the invention to industry.A number of academics and other commentators have contended that it would be more efficient and fair to allow faculty to own the rights to their own inventions, even if they have been hired in part to invent and the inventions are created within the scope of employment. The debate, it should be noted, is only over the appropriate default rule. Not even critics of the current institutional default rule would object to faculty assignment of ownership rights to the university. Since faculty are not generally in a good position to pursue commercialization on their own, the question for public policy is what are the benefits and costs of allowing faculty, in the first instance, to decide whether the university or some other entity should manage the commercialization process. This paper evaluates the case for changing the ownership default rule. First, we provide background on patent rights in the employment setting and how patent rights are applied in a university environment. Second, we explain how most universities handle faculty inventions and technology transfer. Third, we lay out and challenge some of the key arguments critics have offered in support of faculty control of patent rights. Finally, we suggest that faculty inventions which use other university resources, including personnel such as graduate and post-doctoral students, are best viewed as a product of a team production process rather than solely the invention of the faculty member; and the university generally is the more efficient manager of the commercialization effort.

Institutional ownership and workplace misconduct: Evidence from federal labor law violations

Abstract: We examine shareholder influence over workplace misconduct. We find that institutional ownership is negatively associated with portfolio firms’ likelihood to violate federal labor laws. Additional tests using an instrumental variables approach suggests a causal relation. We document evidence consistent with institutional investors’ aversion to poor employment practices being financially motivated: labor law violations are associated with negative stock returns and a higher likelihood of lost or settled employee lawsuits in subsequent years. Moreover, the effect of institutional ownership on workplace misconduct is stronger in portfolio firms with greater reputational concerns. We find results consistent with shareholder monitoring and voice as channels of investor influence. Institutional investors improve portfolio firms’ employment practices via decreased employee workload and increased workforce investments.

Labor Standards Violations and Employment Arbitration: An Empirical Assessment

Abstract: With the rise of employer-promulgated mandatory employment arbitration, scholars have become concerned that these policies may reduce the economic viability of lower value employment claims. Of particular worry are claims made under the Fair Labor Standards Act since the FLSA does not include punitive damages. This study empirically tests the relationship between 368 Fortune 1000 companies’ employment arbitration policies and their wage and hour violations discovered during the Department of Labor inspections. Surprisingly, firms that used arbitration were found to have fewer violations and lower back wages for those violation compared to firms that did not use arbitration. This suggests that viewing arbitration merely as a cost-reduction tool may cast the practice too narrowly and instead it may be part of a larger conflict management system that seeks to address conflict at the earliest possible stage.

Perfil de líderes en oficinas de transferencia tecnológica en instituciones de educación superior mexicanas

Abstract: A pesar de existir investigaciones sobre transferencia tecnológica (TT), son contados los que analizan las habilidades gerenciales o técnicas de los líderes y nulos en latitudes de países emergentes. Es por ello que, particularmente, se estudia el caso de México. Este artículo analiza cuáles habilidades son las que predominan en el perfil del agente de oficinas de transferencia tecnológica universitarias en México. Por medio de un análisis estadístico multifactorial, se identificaron ocho componentes que contienen, en un 79,4 %, ocho constructos. Como resultado, se muestra la identificación del perfil de agente de transferencia.

Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in Internal Union Review Tribunals and the Forgotten Remedy of Re-Arbitration

Abstract: One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets." This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be "tweaked" to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.