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Articles by Greg Mersol
Supreme Court Holds That a Case Should Be Stayed Automatically When a Party Appeals a Decision Not To Arbitrate It
While several recent Supreme Court decisions have garnered significant headlines, the Court’s late June ruling in Coinbase, Inc. v. Bielski, (Case No. 22-15), likely flew under the radar for the national media outlets. For practitioners who frequently deal with motions to compel arbitration, however, the justices’ 5-4 decision resolves a circuit split and follows the majority of courts by mandating an automatic stay when a party seeks an appeal on a right to arbitrate.
Supreme Court Holds That a Case Should Be Stayed Automatically When a Party Appeals a Decision Not To Arbitrate It
While several recent Supreme Court decisions have garnered significant headlines, the Court’s late June ruling in Coinbase, Inc. v. Bielski, (Case No. 22-15), likely flew under the radar for the national media outlets. For practitioners who frequently deal with motions to compel arbitration, however, the justices’ 5-4 decision resolves a circuit split and follows the majority of courts by mandating an automatic stay when a party seeks an appeal on a right to arbitrate.
Coinbase Inc. v. Bielski - Supreme Court Holds Oral Argument on the Issue of Whether an Interlocutory Appeal of the Denial of a Motion To Compel Arbitration Stays the Case - LexBlog
The Coinbase case involves a joint petition for writ of certiorari that could have a major impact on motions to compel arbitration under the Federal Arbitration Act (FAA). Coinbase, Inc. v. Bielski, Case No. 22-105 (oral argument Mar. 21, 2023, in the Supreme Court of the United States). It raises an important issue – must a party seeking the right to arbitrate on appeal continue to defend trial proceedings in district court, no matter the impact?
Supreme Court Adopts Strict Construction of Salaried Test, Even for Highly Paid Exempt Employees
One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply for “fair” employment policies or high wages but for adherence to the specific tests for exempt employees. In Helix Energy Solutions Group, Inc. v. Hewitt, Case No. 21-984 (U.S. Sup. Ct. Feb. 22, 2023), the plaintiff was a supervisor working on an oil rig for the defendant.
Illinois District Court Refuses to Certify Class Based on Anti-harassment Policy
Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense described in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But what happens when employees are dissatisfied with the results of the investigations undertaken pursuant to those policies?
Third Circuit Reverses Certification of ADA Accommodations Class Based on Retail Store Access
Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the question of whether an individual is disabled can be more complex. Further, questions may arise regarding the extent of a disability, whether it requires accommodation, the appropriate type of accommodation and how the claimed conduct relates to the disability.
Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate - But Does Little Else
In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related issues raised by the parties. Thus, the opinion will likely make it easier to assert waiver, but many questions remain unanswered.
Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds
Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the form of a mass tort action in California state court. After analyzing the claims, the Supreme Court dismissed the non-California claimants for lack of subject matter jurisdiction.
District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class
Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit? That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, 2021). In that case, the employer, which operated convenience stores, was the victim of a data breach.
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 these questions when deciding whether to certify a class but must actually resolve them when completing the requisite “rigorous” analysis.
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. The Seventh Circuit recently addressed the issue of harassment by prisoners in Howard v.
Florida Court Denies Conditional Certification in Tip Credit Case | JD Supra
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.
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.
Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement | JD Supra
As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule 23(a)’s numerosity requirement in the right circumstances. In Anderson v. Weinert Industries, Inc., Case No. 20-1010 (7th Cir. Jan.
Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement
As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule 23(a)’s numerosity requirement in the right circumstances. In Anderson v. Weinert Industries, Inc., Case No. 20-1010 (7th Cir. Jan.
The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions in Favor of a One-Step Rigorous Scrutiny Approach. | BakerHostetler - JDSupra
On Jan. 12, 2021, the Fifth Circuit Court of Appeals significantly altered the process for certification of collective actions in wage and hour cases under the Fair Labor Standards Act (“FLSA”). In Swales v.
The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions in Favor of a One-Step Rigorous Scrutiny Approach.
On Jan. 12, 2021, the Fifth Circuit Court of Appeals significantly altered the process for certification of collective actions in wage and hour cases under the Fair Labor Standards Act (“FLSA”). In Swales v.
Eleventh Circuit Upholds Small Fee Award in FLSA Case | JD Supra
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, a strong card, it can be overplayed, as a recent case demonstrates. In Vasconcelo v. Miami Auto Max, Inc., Case No. 19-10679 (11th Cir. Nov.
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, a strong card, it can be overplayed, as a recent case demonstrates. In Vasconcelo v. Miami Auto Max, Inc., Case No. 19-10679 (11th Cir. Nov.
North Carolina Court Rejects Collective Action Based on Regular Rate Issues | JD Supra
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 questions. In Alminiana v. Lowe’s Home Centers, LLC, Case No. 5:20-cv-00010 (W.D. N.C., Sept.
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 questions. In Alminiana v. Lowe’s Home Centers, LLC, Case No. 5:20-cv-00010 (W.D. N.C., Sept.
Eleventh Circuit Invalidates Class Action Individual Incentive Awards | JD Supra
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 giving of such awards has become commonplace or even routine. But is it lawful? Apparently not. In Johnson v.
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 giving of such awards has become commonplace or even routine. But is it lawful? Apparently not. In Johnson v.
DOL Issues New Guidance on Several FFCRA Issues | JD Supra
Introduction The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave rights for many employees of employers with fewer than 500 employees for absences caused by the virus and its aftermath.
Missouri District Court Rules on Employment Class Action Procedural Quagmire | JD Supra
Res judicata helps cut the Gordian knot Rule 23 and FLSA Section 16(b) can provide myriad benefits to the plaintiffs in class actions, but in some instances the attorneys may resort to procedural runarounds to try to leverage those benefits even further. Courts have been less than receptive to these efforts, as a recent opinion from the Eastern District of Missouri demonstrates. Buchta v. Air Evac EMS, Inc., Case No. 4:19-cv-00976 (E.D. Mo. Aug. 10, 2020).
Missouri District Court Rules on Employment Class Action Procedural Quagmire
Res judicata helps cut the Gordian knot Rule 23 and FLSA Section 16(b) can provide myriad benefits to the plaintiffs in class actions, but in some instances the attorneys may resort to procedural runarounds to try to leverage those benefits even further. Courts have been less than receptive to these efforts, as a recent opinion from the Eastern District of Missouri demonstrates. Buchta v. Air Evac EMS, Inc., Case No. 4:19-cv-00976 (E.D. Mo. Aug. 10, 2020).
Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case | JD Supra
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 tipped work and what the test is for the amount of side work permitted to take advantage of the tip credit.
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 tipped work and what the test is for the amount of side work permitted to take advantage of the tip credit.
Sixth Circuit Sets Out Guidelines for Lodestar Fee Awards in Class Actions | JD Supra
Attorney fee awards are a major driver of class action litigation – both in the employment and other contexts. How they are awarded, and what is “reasonable” has been an ongoing source of contention in many cases. A recent opinion from the Sixth Circuit provides some guidance and also places limits on methodology used by some courts to support generous, even lavish, fee awards. The decision in Linneman v. Vita-Mix Corp., Case Nos. 19-3993/4249 (6th Cir., Aug.
Sixth Circuit Sets Out Guidelines for Lodestar Fee Awards in Class Actions
Attorney fee awards are a major driver of class action litigation – both in the employment and other contexts. How they are awarded, and what is “reasonable” has been an ongoing source of contention in many cases. A recent opinion from the Sixth Circuit provides some guidance and also places limits on methodology used by some courts to support generous, even lavish, fee awards. The decision in Linneman v. Vita-Mix Corp., Case Nos. 19-3993/4249 (6th Cir., Aug.
D.C. District Court Refuses to Issue Preliminary Injunction Against Alleged Retaliation in Sex Discrimination Class Action | JD Supra
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 and director. But not every trainee paints the same exciting picture of life as a female FBI agent in training. In Bird v.
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 and director. But not every trainee paints the same exciting picture of life as a female FBI agent in training. In Bird v.
Ninth Circuit Finds No Right of Contribution or Indemnity Under the FLSA | JD Supra
Joint or single employer liability has gotten a lot of attention in recent years, where a company is held responsible for the employment obligations of a sufficiently interrelated contractor or corporate entity. Our sister blog, the Employment Law Spotlight, has reviewed many of these issues in detail. See, e.g., our January 13, 2020 blog. But what happens after an entity is found liable for the wage and hour violations of a different employer?
Sixth Circuit Addresses RICO and FLSA Claims | JD Supra
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 of cases arising out of a small local pizza chain in western Michigan. In Torres v. Vitale, Case No. 19-1515 (6th Cir. March 31, 2020), and in Collier v. Logiudice, Case No. 19-1829 (6th Cir.
Ninth Circuit Finds No Right of Contribution or Indemnity Under the FLSA
Joint or single employer liability has gotten a lot of attention in recent years, where a company is held responsible for the employment obligations of a sufficiently interrelated contractor or corporate entity. Our sister blog, the Employment Law Spotlight, has reviewed many of these issues in detail. See, e.g., our January 13, 2020 blog. But what happens after an entity is found liable for the wage and hour violations of a different employer?
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 of cases arising out of a small local pizza chain in western Michigan. In Torres v. Vitale, Case No. 19-1515 (6th Cir. March 31, 2020), and in Collier v. Logiudice, Case No. 19-1829 (6th Cir.
Illinois District Court Decertifies FLSA Collective With 1,600 Opt-Ins | JD Supra
Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the decision as to whether an off-the-clock case that has been conditionally certified should be permitted to remain as a collective action. In Meadows v. NCR Corporation, Case No. 16 CV 6221 (N.D. Ill.
Illinois District Court Decertifies FLSA Collective With 1,600 Opt-Ins
Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the decision as to whether an off-the-clock case that has been conditionally certified should be permitted to remain as a collective action. In Meadows v. NCR Corporation, Case No. 16 CV 6221 (N.D. Ill.
Court Vacates Jury Award Due to Problems With Plaintiffs’ Expert Reports | JD Supra
Few collective actions are tried, and even when they are, unexpected problems can easily arise. Those problems in a recent case led to the court vacating a jury verdict for the plaintiffs due to what might be characterized as an untimely expert report. But the case really came down to an initial expert report that used incorrect methodology to exaggerate damages, an approach that backfired badly for the plaintiffs. The case of Petrone v. Werner Enterprises, Inc., Case No. 8:11CV401 (D. Neb.
Second Circuit Upholds Fluctuating Work Week Despite Potential Payroll Issues | JD Supra
More than 75 years ago, just four years after the passage of the Fair Labor Standards Act (FLSA), the United States Supreme Court recognized what has now become known as the fluctuating work week (or “FWW”) as an alternative to the strict payment of overtime at time and a half. Overnight Motor Transportation Co. v. Missel, 316 U.S. 572 (1942).
Second Circuit Upholds Fluctuating Work Week Despite Potential Payroll Issues
More than 75 years ago, just four years after the passage of the Fair Labor Standards Act (FLSA), the United States Supreme Court recognized what has now become known as the fluctuating work week (or “FWW”) as an alternative to the strict payment of overtime at time and a half. Overnight Motor Transportation Co. v. Missel, 316 U.S. 572 (1942).
Arkansas District Court Reduces Attorney Fees in FLSA Collective Action to $1 | JD Supra
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.
Illinois District Court Denies Certification of Discrimination Action Due to Problematic Class Representatives | JD Supra
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.
Ninth Circuit Finds That Settlement of Individual Claims Moots Class Allegations | JD Supra
Why, no, a plaintiff can’t eat his cake and have it, too It is often the case that plaintiffs who cannot proceed as a class will settle their individual claims. But what if they really want an incentive award, or their attorneys really want a class-size fee award? Can they settle the individual claim and then continue to chase the class allegations? Nope. At least that’s what the Ninth Circuit just held in Brady v. AutoZone Stores, Inc., Case No. 19-35122 (9th Cir., June 3, 2020).
Ninth Circuit Finds That Settlement of Individual Claims Moots Class Allegations
Why, no, a plaintiff can’t eat his cake and have it, too It is often the case that plaintiffs who cannot proceed as a class will settle their individual claims. But what if they really want an incentive award, or their attorneys really want a class-size fee award? Can they settle the individual claim and then continue to chase the class allegations? Nope. At least that’s what the Ninth Circuit just held in Brady v. AutoZone Stores, Inc., Case No. 19-35122 (9th Cir., June 3, 2020).
A Lawful Job Description Doesn’t Support Conditional Certification | JD Supra
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 the case of Elliott v. Barbecued Integrated, Inc., Case No. 19-62426-CIV-Singhal (S.D. Fla. May 29, 2020).
District Court Dismisses Majority of Claims in Women’s Soccer Equal Pay Dispute | JD Supra
The U.S. Women’s Soccer team has won four FIFA World Cup titles and four Olympic gold medals. The U.S. Men’s Soccer team has not, and did not even qualify for the most recent men’s World Cup. In the wake of the successes of the women’s team, particularly in comparison to the record of the men’s team, media attention was drawn to arguments that women players were paid less than male players.
District Court Dismisses Majority of Claims in Women's Soccer Equal Pay Dispute
The U.S. Women’s Soccer team has won four FIFA World Cup titles and four Olympic gold medals. The U.S. Men’s Soccer team has not, and did not even qualify for the most recent men’s World Cup. In the wake of the successes of the women’s team, particularly in comparison to the record of the men’s team, media attention was drawn to arguments that women players were paid less than male players.
Maryland District Court Grants Summary Judgment Against Collective Class in Claimed Misclassification Case | JD Supra
Updated: May 25, 2018: JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.
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 settle. But it doesn’t always work out that way, as a recent case demonstrates. In Blake v. Broadway Services, Inc., Civil Case No. SAG-18-0086 (D.
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