Greg Mersol

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Ninth Circuit Holds That District Court Must Weigh Evidence to Determine Rule 23(b) Predominance

While statistical evidence has long been held to be probative on the issue of potential discrimination, it can also be tricky. Questions often abound regarding the collection of data used for statistical comparisons, the methodology used and the treatment of results. A recent decision from the Ninth Circuit holds that a district court cannot ignore … Continue Reading

Seventh Circuit Decertifies Sexual Harassment Class That Relied on Novel Theory

Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are not employees and are already incarcerated, so they require very different remedies than those generally used in the workplace. … Continue Reading

Florida Court Denies Conditional Certification in Tip Credit Case

Court also rejects ‘fail-safe class’ allegations The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims against it. A recent case, however, has rejected two fairly common problems inherent in these kinds of cases. In Balassiano v. Fogo De … Continue Reading

The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions

Court directs application of a more rigorous and more sensible standard. Much of the current tsunami of wage and hour litigation across the country has been fueled by the use of a two-step procedure in Fair Labor Standards Act (“FLSA”) collective actions that simultaneously facilitates the bringing of such claims and puts unreasonable pressure on … Continue Reading

Eleventh Circuit Upholds Small Fee Award in FLSA Case

When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act) is their ability to recover attorney fees should they prevail. While that is, indeed, … Continue Reading

North Carolina Court Rejects Collective Action Based on Regular Rate Issues

In some instances, it’s hard to see what benefit there is to a class action other than for the lawyers. This is particularly true in so-called “regular rate” cases challenging employer perks such as free meals, various kinds of bonuses, or other employee benefits. We’ve commented on these cases previously. A recent case raises these same … Continue Reading

Eleventh Circuit Invalidates Class Action Individual Incentive Awards

Yes, you read that right. Class action litigation is fueled largely by the availability of often large attorney fee awards. To get a class action case in the first place, however, attorneys bringing them often entice a potential individual plaintiff into the role of class representative with the prospect of a monetary “incentive award,” usually in the thousands of dollars. Indeed, the … Continue Reading

Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case

Tip credit issues are inherently difficult. Section 3(m) of the Fair Labor Standards Act permits an employer to count tips toward a portion of a tipped employee’s wages to meet the minimum wage (and in some instances overtime) requirements of the Act. The Department of Labor, however,  has gone back and forth over the requirements for … Continue Reading

D.C. District Court Refuses to Issue Preliminary Injunction Against Alleged Retaliation in Sex Discrimination Class Action

In the 1991 movie “Silence of the Lambs” and the book on which it was based, FBI trainee Clarice Starling is tasked with working with the now-infamous Hannibal Lector to find a serial killer. That movie won a Best Actress Oscar for Jodie Foster as well as Oscars for Anthony Hopkins and the movie’s scriptwriters … Continue Reading

Sixth Circuit Addresses RICO and FLSA Claims

Successful FLSA plaintiffs will likely receive not only the claimed unpaid overtime or minimum wage, but also liquidated (double) damages and payment of their attorney fees. But what if they want . . . more? Will a RICO claim get them additional funds? That was the question the Sixth Circuit has answered in a pair … Continue Reading

Arkansas District Court Reduces Attorney Fees in FLSA Collective Action to $1

It’s hard not to express cynicism when discussing attorney fee awards in overtime class and collective actions. Courts have adopted wildly different tests and benchmarks, and different jurisdictions apply very different levels of scrutiny. The availability of fees has fueled the epic growth in Fair Labor Standards Act (FLSA) class and collective litigation. Many of … Continue Reading

Illinois District Court Denies Certification of Discrimination Action Due to Problematic Class Representatives

A key premise of a class action is that a court can, in essence, review the merits of the class representative’s claims and apply the result of that review across the class as a whole. This concept is most readily found in Rule 23(a)(2) (commonality), (a)(3)(typicality) and (a)(4)(adequacy of representation), but it also finds its way into … Continue Reading

A Lawful Job Description Doesn’t Support Conditional Certification

Virtually every brief seeking conditional certification will point to an employer policy that allegedly ties the collective or class together. But as a growing number of courts are recognizing, a uniform policy is not sufficient; rather, the plaintiffs must point to some classwide policy or practice that is actually illegal. That was the issue in … Continue Reading

Maryland District Court Grants Summary Judgment Against Collective Class in Claimed Misclassification Case

Misclassification cases are grist for the mill in wage and hour litigation. As we have pointed out previously, the typical pattern is for the plaintiff to assert claims for unpaid overtime on the grounds that the position involved allegedly did not entail exempt work, to obtain conditional certification under the lower “stage one” procedure and then … Continue Reading

Maryland District Court Refuses Conditional Certification of Proposed Class of Grocery Store Managers

Grocery stores have taken on special prominence as being on the front lines of the current coronavirus pandemic. Just as that role was becoming apparent, the federal district court in Maryland issued a strong opinion not only denying conditional certification for a class of grocery store managers, but also dismissing many of their claims. In … Continue Reading
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