Greg Mersol

Greg Mersol

BakerHostetler

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Eleventh Circuit Refuses to Enforce Post-Suit Arbitration Agreements Based upon Employer Misconduct

The British have a phrase “too clever by half” to describe complex schemes that ultimately won’t work. We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration...more

4/7/2014 - Arbitration Arbitration Agreements Employer Liability Issues

Fourth Circuit Affirms Sanctions Against the EEOC In Action Fraught with Delays

Many employers who have dealt with the EEOC in large cases suffer frustration over inexplicable delays combined with at times unreasonable requests for information and/or relief. In a recent case from the Fourth Circuit, that...more

4/7/2014 - Attorney's Fees EEOC Sanctions

Sixth Circuit Holds That Duty To Arbitrate Survives Expiration of Employment Contract, Requires Individual Arbitration

With the Supreme Court having issued a series of decisions overruling many of the roadblocks to the enforcement of arbitration agreements in the class context, we are now seeing more courts fill in the gaps as to whether and...more

3/31/2014 - Arbitration Arbitration Agreements Employment Contract

Supreme Court Accepts Certiorari In Security Screening Case

We’ve written at least twice now on class actions arising out of time spent by employees going through security lines, primarily at the end of their shifts. The question is whether and when such time might be compensable...more

3/21/2014 - Employee Rights SCOTUS Security Wage and Hour

Massachusetts Court Refuses to Certify Case Involving Alleged Independent Contractor Misclassification

The United States District Court for the District of Massachusetts recently issued a case involving the straight-forward application of the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011),...more

3/19/2014 - Class Action Class Certification Commonality Dukes v Wal-Mart Independent Contractors Misclassification

Eleventh Circuit Affirms Dismissal of RICO Claims

Is there a statute with a better acronym than RICO? The Racketeer Influenced and Corrupt Organizations Act, apart from its great acronym, has been both a great success and a tool for misuse. We don’t often see RICO...more

3/18/2014 - Class Action Corruption Dismissals Racketeering RICO Undocumented Immigrants Wages

Ninth Circuit “Chases” Away Another Option for Removing PAGA Actions to Federal Court

In yet another setback for employers seeking to remove California wage and hour cases to federal court, the Ninth Circuit held that the federal Class Action Fairness Act (“CAFA”) provides federal courts with no basis to...more

3/17/2014 - CAFA Class Action Federal Jurisdiction Jurisdiction PAGA Removal

Washington (State) District Court Dismisses Putative ADA Class Action

As we’ve commented before, disability claims are particularly poor fodder for class actions. Unlike other protected traits, there are often threshold questions as to whether an individual is even in a protected class. Even in...more

3/7/2014 - ADA Class Action Disability Dismissals Putative Class Actions

New York District Court Dismisses Putative ERISA Class Alleging Illegal Kickbacks

Sometimes in the rush to meet Rule 23(a) and (b)’s requirements, what gets overlooked is whether there is any underlying claim in the first place. In a refreshing opinion, the Southern District of New York disposed of a...more

3/6/2014 - ERISA Kickbacks Morgan Stanley Putative Class Actions

Incentive Awards, Bounties, and Adequacy of Representation

A common feature of class action settlements, whether in employment actions or otherwise, is the payment of an incentive award to the named plaintiff. Such payments are frequently approved by courts, but have been criticized...more

2/17/2014 - CAFA Class Action Incentives Settlement

The Supreme Court’s Sandifer Decision and Collective Actions

Last week, the Supreme Court decided the case of Sandifer v. United States Steel Corp., Case No. 12-417 (Jan. 27, 2014), addressing donning and doffing claims in the context of a unionized steel mill. That case not only...more

2/5/2014 - Collective Bargaining FLSA Protective Gear Sandifer v U.S. Steel Corp SCOTUS Unions Wage and Hour Workplace Attire

California District Court Disqualifies Class Counsel for Conflict of Interest

Is more of a good thing a better thing? In some contexts, not, as reflected by a recent case from the Northern District of California. In Lou v. Ma Laboratories, Inc., Case No. C 12-05409 WHA (N.D. Cal. Jan. 8, 2014), the...more

1/15/2014 - Class Action Collective Actions Conflicts of Interest Disqualification Putative Class Actions

California Courts Deny Certification In Wage and Hour Cases Based On Claim That Employer “Should Have Known” Of Unpaid Time

Back in October, we reviewed a number of California cases that, for the most part, denied certification in cases in which certification would have largely been a foregone conclusion only a few years ago. The first few days of...more

1/10/2014 - Class Action Rest and Meal Break Unpaid Overtime Wage and Hour Wages

California District Court Rejects FLSA Settlement Due to 78% Fee Award

Without settlements, class action litigation would likely grind the work of our nation’s courts to a halt. One impediment, however, to settlement in many cases is the amount of attorney fees. Particularly in smaller cases, or...more

12/19/2013 - Attorney's Fees Class Action FLSA Settlement

New York District Court Grants Summary Judgment Against FLSA Class of Insurance Claims Adjusters

In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern: file the case, do minimal discovery, move for conditional certification under...more

11/25/2013 - Claims Adjusters Class Action Class Certification FLSA GEICO Summary Judgment

California State and Federal Courts Renew Their Attacks On Arbitration Agreements

In 1991, Sega introduced the video character Sonic the Hedgehog. Sonic became insanely popular, spawning several generations of videogames that are still being designed and sold today, comic books, and even a short-lived...more

11/7/2013 - Arbitration Arbitration Agreements AT&T Mobility v Concepcion SCOTUS

Employers Win Some, Lose Some, in California Cases Started Prior to Dukes

Despite blockbuster cases like Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal. 2012), California remains a hotbed of employment class litigation as a...more

10/31/2013 - Class Action Class Certification CVS Dukes v Wal-Mart FLSA FRCP 23(b)(3) Rest and Meal Break Rule 23

Fourth Circuit Argues With Itself Over Dukes' Application

While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern. That issue is whether the judge...more

10/24/2013 - Class Action Discrimination Dukes v Wal-Mart Gender Discrimination Rule 23

Multiple Courts Criticize EEOC Behavior In Class Cases

Over the last 5 years, the EEOC has become increasingly aggressive in the bringing and pursuit of broad initiatives and, in particular, class litigation. Cynics can debate whether this springs from a desire to make a...more

10/8/2013 - Class Action Discrimination EEOC Good Faith Sanctions Title VII

Indiana District Courts Finds Private Equity Firm Potentially Liable in WARN Class Action

This seems to be the month for class action cases presenting unusual issues in combination. Last week we wrote about a class action disparate impact claim of disability discrimination against the obese in which the court...more

10/1/2013 - Class Action Class Certification Private Equity Subsidiaries WARN Act

Michigan District Court Dismisses Disability Disparate Impact Class Claim

Class action lawsuits alleging disability discrimination are uncommon, and those involving disparate impact claims are less common still. This is due, in part, to the fact that unlike other types of discrimination claims, a...more

9/27/2013 - Class Action Disability Discrimination Discrimination Disparate Impact Hiring & Firing Obesity

Detroit District Court Certifies Antitrust Class of Registered Nurse

What is the right compensation for a particular job? That’s the question virtually every employer must face. Pay too little, and the employer may not be able to fill a position or must settle for less than the best...more

9/23/2013 - Class Action Class Certification Healthcare Healthcare Professionals Hospitals Unions Wages

New York District Court Denies Certification and Conditional Certification of Class of Personal Bankers

One can only imagine the outcome the plaintiffs' attorneys were anticipating: a case against the financial industry, involving non-exempt employees subject to an auto-deduct policy for meal periods, in the Southern District...more

9/11/2013 - Class Action Class Certification Dukes v Wal-Mart FLSA Non-Exempt Employees Rest and Meal Break Wage and Hour

Third Circuit Finds That Putative Class Representatives Could Not Challenge Decertification Of An FLSA Collective Action Once They...

While the now familiar two-step process for determining certification of FLSA collective actions may have been introduced based on valid concerns, it is increasingly vexing for employers in cases where they have either done...more

9/9/2013 - Class Action Class Certification Class Representatives Collective Actions Decertify Dismissals Employer Liability Issues FLSA

Fifth Circuit Applies Fluctuating Work Week in FLSA Misclassification Case

You might want to grab a calculator, or at least some strong coffee, before reading this. If an employee or group of employees have been found to have been misclassified as exempt, are they entitled to time-and-a-half...more

9/1/2013 - FLSA Fluctuating Workweek Misclassification

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