Greg Mersol

Greg Mersol

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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

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

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

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

Choice of Law/Statute of Limitations Thwarts Class

Differences among putative class members are frequently the heart of the employer’s defense to a class action lawsuit. Such differences implicate the elements of commonality and typicality and possibly even adequacy of...more

7/31/2013 - Choice-of-Law Class Action Statute of Limitations

California District Court Compels Arbitration of Class and Collective Wage and Hour Claims

Dorothy Gale famously remarked upon finding herself in Oz “Toto, I’ve got a feeling we’re not in Kansas anymore.” Class action wage and hour plaintiffs on the west coast are now awakening to the fact that while they may still...more

7/12/2013 - American Express American Express v Italian Colors Restaurant Arbitration AT&T Mobility v Concepcion Class Action Collective Actions Collective Bargaining Employer Liability Issues Ernst & Young FLSA NLRB SCOTUS Wage and Hour

Southern District of New York Denies Conditional Certification in Misclassification Case

Despite its significant rulings in other areas, we don’t have any blockbuster Supreme Court opinions to discuss this week as it has already decided all of class action before it. Since we don’t have a Dukes, Concepcion,...more

6/26/2013 - Class Action Class Certification FLSA Misclassification

Pennsylvania District Court Denies Certification Of Off-The-Clock Case (Again)

“If at first you don’t succeed, try, try, again,” or so the adage goes. A recent case suggests that may not always be the right strategy or, more apropos to this blog, that off-the-clock cases make poor fodder for class...more

6/7/2013 - Class Action Class Certification Off-The-Clock Rest and Meal Break Wage and Hour

Sixth Circuit Affirms Refusal to Certify Disparate Impact Sex Discrimination Case

On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but...more

6/1/2013 - Class Action Commonality Discrimination Disparate Impact Dukes v Wal-Mart EEOC Hiring & Firing Predominance Requirement Rule 23(b)(2) Sex Discrimination Summary Judgment Title VII

California Courts Issue Multiple Decisions for Employers in Class Cases

Just two years ago, a California case declining certification of an action would have been cause for comment. But since then, in 2011 the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541...more

5/17/2013 - Class Action Class Certification Rule 23

Pennsylvania Court Denies Certification Of Disability Discrimination Claims

In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female;...more

4/30/2013 - ADA ADAAA Class Action Class Certification Disability Disability Discrimination

Ninth Circuit Finds Rule 23 Class Actions and FLSA Collective Actions Compatible

As we’ve noted before, circuit court authority on collective action issues is relatively sparse. Although we like to comment on such cases, the most recent such opinion is in many respects a nonevent. ...more

4/19/2013 - Class Action Collective Actions FLSA Rule 23

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