Greg Mersol

Greg Mersol

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Merits Trump Certification Issues in Two Southern District of New York Cases

Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate,...more

9/25/2014 - Class Action Class Certification Dukes v Wal-Mart Putative Class Actions SCOTUS

Minnesota District Court Rejects Nationwide Scope and Conditionally Certifies Class of One Chipotle Store

Employees win most motions for conditional certification under the FLSA, with many courts declining to perform a probing analysis at that stage. A recent case from the District of Minnesota, in which the court still applied a...more

9/19/2014 - Chipotle Grill Class Action Class Certification Employer Liability Issues Unpaid Overtime Wage and Hour

District Court Refuses to Certify Class of “Non-Liturgical” Protestant Navy Chaplains

Given the rich diversity and array of religions, and the First Amendment prohibitions both on the establishment of religion and impeding the free exercise of religion, the appointment and promotion of chaplains in the...more

9/9/2014 - Class Action Class Certification First Amendment Religion U.S. Navy

Eighth Circuit Affirms Summary Judgment On Overtime Claims For Class of Tax Professionals

Relatively few FLSA cases are certified and then reach a court of appeals on the merits, but that recently happened before the Eight Circuit. In Petroski v. H&R Block Enterprises, LLC, Case No. 13-2076 (8th Cir. May 2, 2014),...more

5/23/2014 - Class Action Class Certification Employee Definition FLSA H&R Block Hiring & Firing Tax Preparers Training Wage and Hour

Ninth Circuit Reverses District Court’s Refusal To Certify Age Discrimination Class

The most famous, if fictional, San Francisco police Inspector was, of course, Inspector Harry Callahan of the Dirty Harry succession of Clint Eastwood films. The first Dirty Harry movie came out in 1971when its star, known...more

5/8/2014 - ADEA Age Discrimination Class Action Class Certification Discrimination

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

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

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

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

Virginia District Court Denies Conditional Certification of FLSA Case

A Virginia District Court has denied conditional certification of a class of chauffeurs in claims for unpaid overtime and has also recognized the application of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), to the...more

8/15/2013 - Class Certification Damages Dukes v Wal-Mart FLSA Unpaid Overtime

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

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

Missouri Court Denies Conditional Certification Of Off-The-Clock Case

In some respects, one of the most difficult types of wage and hours lawsuits are so-called “off-the-clock” cases in which the employer has promulgated lawful time-keeping and compensation policies, but the plaintiffs contend...more

2/25/2013 - Class Action Class Certification FLSA General Electric Off-The-Clock Over-Time Wage and Hour

Ohio District Court Denies Conditional Certification In FLSA Case

We’ve commented before that while most courts apply a fairly lenient standard at the “conditional certification” phase of Fair Labor Standards Act collective action litigation, plaintiffs tend to have a harder time in...more

2/18/2013 - Class Action Class Certification Conditional Certification FLSA Off-The-Clock Unpaid Overtime Wage and Hour

Domino's Pizza Drivers Fail to Deliver Common Circumstances to the Eighth Circuit

Despite their work uniforms and company cars, pizza delivery drivers do not have much in common (at least according to the Eighth Circuit). Recently, in Luiken v. Domino’s Pizza, LLC, No. 12-1216, 2013 WL 399248 (8th...more

2/18/2013 - Class Action Class Certification Commonality Delivery Drivers Dominos

Ohio District Court Decertifies Class of Health Care Workers in Meal Break Case

We’ve commented several times in the past on the importance of the second phase of the two-step procedure now commonly employed by district courts in Fair Labor Standards Act cases. Under that procedure, courts will...more

2/12/2013 - Auto-Deduct Policy Class Action Class Certification Decertify FLSA Healthcare Professionals Rest and Meal Break

Tenth Circuit Affirms Refusal To Certify Sex Discrimination Class

Hilti, Inc. sells power equipment for use in construction sites. A quick trip through its website reveals tools most people wouldn’t have in their home workshops, such as 1100-watt demolition hammers, gas-powered fasteners,...more

1/24/2013 - Class Action Class Certification Disparate Impact EEOC Sex Discrimination Summary Judgment Title VII

Court Denies Conditional Certification of Class of Debt Collectors

If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more...more

12/17/2012 - Class Action Class Certification Debt Collectors FLSA Off-The-Clock

Court of Appeal Turns Volume Down on Plaintiff in Meal Period Class Action Against RadioShack

The California Court of Appeal has maintained the recent post-Brinker trend of refusing to certify cases involving meal and rest period claims where an employer has a compliant break policy....more

12/10/2012 - Brinker Class Certification Rest and Meal Break

Court Denies Conditional Certification of Proposed Class of Retail Representatives

We’ve written several times in the past about the two-step procedure now in vogue for the handling certification of collective actions under section 16(b) of the FLSA....more

12/1/2012 - Class Action Class Certification FLSA Retail Market

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