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January 2012 Archives

Ross v. RBS Citizens, N.A., No. 10-3848 (7th Cir. Jan. 27, 2012)

The defense bar has been so high on its success in defeating the Wal-Mart Stores v. Dukes class action last spring that its lawyers fanned out across the county, trying to persuade judges everywhere that the era of employment class actions was over. Yet the Seventh Circuit held against this tide, affirming certification of an Illinois state-law Rule 23 class action in a wage-and-hour case, finding that the conditions of Rule 23(c)(1)(B) were met.

Overtime Class of Duane Reade Assistant Store Managers Conditionally Certified

For the third time, a New York federal district court has conditionally certified a Fair Labor Standards Act (FLSA) collective action on behalf of Duane Reade assistant store managers. On January 27, 2012, the Court issued an order in Jacob v. Duane Reade Inc., 10 Civ. 160 (S.D.N.Y. Jan. 27, 2012) that allows FLSA notice to issue to all assistant store managers who worked at Duane Reade between January 7, 2009 and the January 27, 2012.

Judge Wood Denies Second Motion Seeking Arbitration of Class and Collective Action Wage and Hour Claims

In a recent decision, Judge Wood distinguishes Supreme Court precedent to find an arbitration agreement that did not provide for class arbitration invalid under Second Circuit precedent because it foreclosed the exercise of statutory rights. Reaffirming her initial decision, Judge Wood determined defendant's reliance on the intervening decision of AT&T Mobility LLC v. Concepcion ("Concepcion") in seeking reconsideration was misplaced. 

FINRA Awards Broker Over $3 Million in Damages in Defamation Case

In a recent arbitration decision, a panel of FINRA arbitrators awarded $3.25 million in damages, interest, and costs to a broker who had alleged defamation and other claims against his former employer. The decision (known as an "award") concluded the arbitration proceedings in the case of Gorter v. Questar Capital Corp, FINRA Case No. 08-03514 (award signed Jan. 13, 2012).

Outten & Golden Obtains Favorable Disparate Impact Decision in Easterling v. State of Connecticut Department of Correction

A recent decision involving a Title VII disparate impact claim obtained by Outten & Golden from the District Court of Connecticut is gaining increasing attention from employment lawyers attempting to overcome challenges to class certification. The decision distinguishes the Supreme Court decision of Wal-Mart Stores, Inc. v. Dukes, and also highlights the continued importance of Second Circuit precedent in employment class actions brought under Title VII.

Novartis Settles Overtime Case on Behalf of Pharmaceutical Sales Representatives for $99 Million

Novartis agreed to pay $99 million to settle the claims of a class of its pharmaceutical sales representatives ("pharma reps") who alleged that they were denied overtime pay. See In re Novartis Wage & Hour Litig., No. 06 md 01784 (S.D.N.Y.). District Judge Paul Crotty of the Southern District of New York gave preliminary approval to the proposed settlement on Tuesday, January 24, 2012. The final approval hearing will take place on May 31, 2012.

Bullock v. Napolitano, No. 10-1222 (4th Cir. Jan. 23, 2012)

May the federal government be sued in state court on a Title VII claim? Remarkably, the statute contains no provision for exclusive federal jurisdiction over such claims, and the Fourth Circuit splits 2-1 over whether there is concurrent jurisdiction.

FINRA Proposes Rule Change Precluding Collective Actions

The SEC recently published a notice that the Financial Industry Regulatory Authority, Inc. ("FINRA") has proposed a rule change to its Code of Arbitration Procedure for Industry Disputes. The proposal would be a welcome change - the new rule would make collective actions ineligible for FINRA arbitration, just as class actions already are. With the rule change, employees who are registered with FINRA (e.g., stockbrokers, traders, and other employees working in securities businesses) will be able to file and participate in FLSA, ADEA, and EPA collective actions without the threat of being compelled to arbitrate their claims in FINRA's forum. 

Cherry v. Shaw Coastal, Inc., No. 11-30403 (5th Cir. Jan. 19, 2012)

An employee whom a jury had found was the victim of male-on-male harassment in the workplace wins back his $500,000 Title VII jury verdict on appeal, where the Fifth Circuit holds that the district court erred in finding post-trial that the harassment was not severe or pervasive as a matter of law.

Hamilton v. Geithner, No. 10-5419 (D.C. Cir. Jan. 17, 2012)

On the heels of last week's Ninth Circuit decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), here's another federal-sector case involving a denial of promotion, brought under Title VII and alleging race and sex discrimination (and retaliation). The panel reverses summary judgment in part, finding that the plaintiff's unqualifiedly superior qualifications for the position - combined with the thinness of the agency's explanation for its decision - presented sufficient evidence for a trial.

Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012)

The Ninth Circuit holds (2-1) that a federal-sector promotion process that weeds out a well-qualified older candidate for promotion, which then awards the job to the youngest applicant, and that was possibly influenced by data about the employees' projected retirement dates, presents a genuine issue of material fact about age discrimination under the ADEA.

Bobo v. United Parcel Service, Inc., No. 09-6348 (6th Cir. Jan. 9, 2011); Coleman v. Donahoe, No. 10-3694 (7th Cir. Jan. 6, 2011)

Two circuits, the Sixth and Seventh, issue back-to-back decisions criticizing district courts for applying an excessively-stringent standard for proving comparable employees under the McDonnell Douglas test. The Seventh Circuit - in a special concurring opinion by Judge Diane Wood, co-signed by her two co-panelists - goes a step further, and urges the end of this entire line of cases: "Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility."

EEOC v. Management Hospitality of Racine, Inc., No. 10-3247 (7th Cir. Jan. 9, 2011)

The Seventh Circuit substantially upholds a jury verdict that the employer, the owner of a franchise restaurant, allowed two of its teen employees to be sexually harassed in violation of Title VII. The panel, in affirming denial of judgment as a matter of law, touches on several areas that recur in such cases - making the opinion a good template for future litigation and counselling in this area. The panel nonetheless reverses liability against the personnel company that managed the restaurant's employees, and remands for a new trial on that issue.

UPDATE: Auditor Wage & Hour Litigation Against Big Four Accounting Firms

On December 20, 2011, we reported here about developments in a variety of overtime cases involving audit associates at Big Four accountant firms, including a recent conditional certification of a collective action against Deloitte (our firm is co-counsel in that matter, http://www.deloitteovertimelawsuit.com/).

Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012)

A case that demonstrates the importance of communication between employee and counsel, as well as the imperative to preserve and locate documents. The Third Circuit devotes 35 pages to reversing a mistrial and sanctions against a plaintiff in a disability-discrimination case for supposedly withholding original doctor's notes. In hindsight, a simple memo could have headed off this trip to the court of appeals.

Culpepper v. Vilsack, No. 10-2627 (8th Cir. Dec. 28, 2011)

Employees who believe they are not getting ahead in their jobs because of sex, race, disability, age or other factors, take heed: unless you actually apply for - or at very least, express interest in - a promotion, you may not have a claim for discrimination. Such an application is an important step to preserving your rights, even if you think the outcome is preordained against you.

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