Selected Litigation Matters
(Note: Not all matters are shown, past results do not guarantee future outcomes, and listed matters include work performed at a prior law firm.)
- Persuaded the Ninth Circuit, in nine consolidated appeals, to reject U.S. Department of Labor subregulatory “dual jobs” guidance purporting to limit the amount of side work that tipped employees may perform at a tip credit rate. Marsh v. J. Alexander’s LLC, _ F.3d. _ , 2017 U.S. App. LEXIS 17199 (9th Cir. Sept. 6, 2017).
- Obtained affirmance of dismissal of 30 NCAA Division I universities in a putative nationwide collective action by former student-athletes seeking minimum wage for time spent engaged in interscholastic athletics. Berger v. NCAA, 843 F.3d 285 (7th Cir. 2016).
- In a declaratory relief action against the U.S. Department of Labor, obtained summary judgment striking as invalid all challenged portions of the agency’s 2011 FLSA regulations involving tips and the tip credit. Oregon Restaurant & Lodging Ass’n v. Solis, 948 F. Supp. 2d 1217 (D. Or. 2013), rev’d sub nom. Oregon Restaurant & Lodging Ass’n v. Perez, 816 F.3d 1080 (9th Cir.), reh’g denied, 843 F.3d 355 (9th Cir.), petitions for cert. filed, (U.S. Aug. 1, 2016) (No. 16-163), (U.S. Jan. 19, 2017) (No. 16-920).
- Defeated plaintiffs’ motion to conditionally certify an opt-in class of restaurant employees challenging the use of a tip credit wage for time spent performing side work. Langlands v. JK & T Wings, Inc., 2016 U.S. Dist. LEXIS 100126 (E.D. Mich. Aug. 1, 2016).
- Persuaded plaintiff’s counsel to voluntarily dismiss a putative class action alleging failure to pay overtime to retail store department managers, and without any payment by the defendants. Shryock v. Bed Bath & Beyond, Inc., No. 1:15-cv-03610-JKB (D. Md. 2016).
- Persuaded plaintiff’s counsel to voluntarily dismiss a putative collective action alleging failure to pay overtime to delivery drivers, and without any payment by the defendants. Blazonis v. FedEx Ground Package System, Inc., No. 1:15-cv-02144-WMN (D. Md. 2015).
- Obtained summary judgment in a collective action with more than 200 opt-in plaintiffs alleging that time spent laundering hospital uniforms is compensable work under the Fair Labor Standards Act (FLSA). Dinkel v. MedStar Health, Inc., 286 F.R.D. 28 (D.D.C. 2015).
- Prevailed on a motion to dismiss a putative class action complaint seeking compensation under Pennsylvania law by employees allegedly required to remain on their employer’s property during unpaid meal periods. Bosler v. Bio-Medical Applications of Pennsylvania, 24 Wage & Hour Cas. 2d (BNA) 796 (E.D. Pa. 2015).
- Obtained summary judgment in a putative class action by a Chicago taxicab driver contending that by virtue of the City’s regulation of the taxicab industry, she and all other taxicab drivers in Chicago are employees of the City entitled to minimum wage under federal and Illinois law. Callahan v. City of Chicago, 78 F. Supp. 3d 791 (N.D. Ill. 2015), aff’d, 813 F.3d 658 (7th Cir.), cert. denied, 137 S. Ct. 188 (U.S. 2016) (No. 16-56).
- Persuaded plaintiffs in a putative multistate collective action challenging the exempt status of certain work performed by retail store assistant managers to withdraw their class claims in light of our opposition to their conditional certification motion. Baker v. R.K. Administrative Services, LLC, No. 3:13-cv-00144-RLY-WGH (S.D. Ind. 2013).
- Defeated plaintiffs’ motion to conditionally certify an opt-in class of car service chauffeurs challenging their classification as independent contractors and asserting claims for minimum wage and overtime, and then obtained dismissal of 24 of the 25 named plaintiffs on the basis of misjoinder. Amir v. Sunny’s Executive Sedan Service, Inc., No. 1:13-cv-001610CMH-TCB (E.D. Va. July 30, 2013) (denial of conditional certification) and (Oct. 16, 2013) (dismissal of misjoined plaintiffs).
- In a putative statewide collective action, obtained a dismissal on the basis of failure to state a claim regarding allegations that restaurant servers spent time performing supposedly non-tipped duties while earning a tip credit wage, and defeated plaintiff’s motion to conditionally certify a collective action alleging insufficient notice of the tip credit. Roberts v. Apple Sauce, Inc., 945 F. Supp. 2d 995 (N.D. Ind. May 13, 2013) (currently on appeal, Seventh Circuit Case No. 13-3126).
- While plaintiffs’ motion to conditionally certify a nationwide opt-in class of retail store managers was pending, persuaded plaintiffs’ counsel to withdraw their complaint alleging failure to pay overtime, and without any payment by our client. Bethel v. Shoe Show, Inc., No. 1:13-cv-01008-JDB-egb (W.D. Tenn. 2013).
- Obtained summary judgment in a putative collective action by delivery drivers based on the preemption of the Massachusetts Independent Contractor Statute by the Federal Aviation Administration Authorization Act of 1994. Sanchez v. Lasership, Inc., 937 F. Supp. 2d 730 (E.D. Va. 2013).
- Defeated plaintiffs’ motion to conditionally certify a nationwide FLSA opt-in class of training instructors and field service representatives working for a defense contractor. Gentry v. DRS Technology, Inc., No. 4:11-cv-01915-RWS, 2012 U.S. Dist. LEXIS 81803 (E.D. Mo. June 13, 2012).
- Obtained summary judgment in a putative nationwide collective action, with the court holding that gentlemen’s club emcees receive pay in compliance with the FLSA because payments that dancers make to the emcees satisfy the regulatory definition of “tips.” Johnson v. VCG Holding Corp., 845 F. Supp. 2d 353 (D. Me. 2012).
- Successfully opposed plaintiffs’ counsel’s attempt to consolidate cases pending in federal courts in four different states into a proceeding in the one circuit that had concluded that pharmaceutical sales representatives are non-exempt. In re: Boehringer Ingelheim Pharmaceuticals, Inc. Fair Labor Standards Act Litig., 763 F. Supp. 2d 1377 (J.P.M.L. 2011).
- Defeated plaintiff’s motion to conditionally certify a nationwide FLSA opt-in class of retail shoe store managers. Drew v. Shoe Show, Inc., No. 3:10-cv-00656-JPG-PMF, 2011 U.S. Dist. LEXIS 106503 (S.D. Ill. Sept. 19, 2011).
- Defeated plaintiff’s motion to conditionally certify a nationwide FLSA opt-in class of pharmaceutical sales representatives based on the named plaintiff’s class action waiver as well as the plaintiff’s failure to demonstrate that she was similarly situated to other putative class members. Palacios v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 10-22398-Civ-UU, 2011 U.S. Dist. LEXIS 92002 (S.D. Fla. Apr. 19, 2011).
- Obtained enforcement of an arbitration agreement and class action waiver as to two plaintiffs who sought to represent an FLSA opt-in class of exotic dancers. D’Antuono v. Service Road Corp., 789 F. Supp. 2d 308 (D. Conn. 2011).
- Defeated plaintiff’s motion to conditionally certify a nationwide FLSA opt-in class of gentlemen’s club emcees based on the plaintiffs’ failure to demonstrate that other potential plaintiffs are interested in participating in the litigation. Johnson v. VCG Holding Corp., 802 F. Supp. 2d 227 (D. Me. 2011).
- Won a new trial on all issues in a challenge to what was then the largest single-plaintiff sexual harassment verdict—nearly $40 million including interest—ever affirmed on appeal in the United States. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749 (2004).
- Improving the Federal Wage and Hour Regulatory Structure: Hearing Before the Subcomm. on Workforce Protections of the H. Comm. on Education and the Workforce, 113th Cong. (2014)
- The Misclassification of Workers as Independent Contractors: What Policies and Practices Best Protect Workers?: Joint Hearing Before the Subcomm. on Health, Employment, Labor and Pensions and the Subcomm. on Workforce Protections of the H. Comm. on Education and Labor, 110th Cong. 9-35 (2007)
- Adequacy of Labor Law Enforcement in New Orleans: Hearing Before the Subcomm. on Domestic Policy of the H. Comm. on Oversight and Government Reform, 110th Cong. (2007)