Wage and Hour Litigation and Counseling

Weil was retained to defend Tuesday Morning Inc., a national retailer, in a putative California wage and hour class action involving nearly 4,000 potential class members in a matter before Judge Edward Chen in the Northern District of California (McMahon v. Tuesday Morning, Inc.). Plaintiff asserted class claims for failure to provide rest breaks, failure to timely pay all final wages, violation of California’s unfair competition law, and civil penalties under the Private Attorneys General Act (PAGA), seeking to recover substantial eight-figure damages. At an early court-ordered mediation, Plaintiff’s counsel refused to settle the case for less than eight figures, but following a big victory by Weil on a key dispositive motion, Plaintiff agreed to settle the case for a six-figure number. This case also involved a ground-breaking ruling on how PAGA settlement funds should be allocated to the class versus the state of California.

Weil obtained the dismissal, with prejudice, of a separate putative California wage and hour class action filed against TMI, in which plaintiffs asserted class claims for failure to pay wages without discount in violation of California Labor Code Section 212 on behalf of TMI’s entire California workforce based on TMI’s use of payroll debit cards, failure to provide meal and rest periods, and failure to pay hourly wages, as well as other derivative California wage-based claims. Plaintiff then filed an appeal with the Ninth Circuit Court of Appeals, but before TMI was required to file its response, the parties reached a settlement whereby the matter was resolved on an individual basis for a nominal sum.

Weil was also hired as replacement counsel in a third California state court wage and hour class action following a series of adverse rulings – including the granting of Plaintiffs’ motion for class certification and the denial of Defendant’s subsequent motions for decertification and summary judgment. Among other California wage and hour claims, plaintiffs challenged TMI’s practice of providing “on-duty” meal periods to its California Senior Sales Associates, an issue that is not frequently litigated and on which there is limited and ambiguous legal authority. The certified class included current and former employees of all 87 of TMI’s California-based stores. Following our retention as counsel, we negotiated an extremely favorable resolution for our client by, among other things, developing and marshalling the discovery record in a manner that evinced compliance on TMI’s part with the DLSE’s standards for “on duty meal periods” and virtually eliminating any PAGA penalty exposure through a novel but substantiated interpretation of that statute.

Weil also successfully settled another California-based putative wage-and-hour class action filed against the company, and obtained an early dismissal on a motion to dismiss of another California-based putative class action brought against TMI involving claims under the Fair Credit Reporting Act and the California corollary background and credit check statutes.

Weil represented Elite Model Management Corp., one of the world’s most renowned modeling agencies, in a nationwide collective and New York class action involving an issue of widespread importance in numerous industries across the country, which has garnered significant media attention: whether unpaid interns are “employees” under the minimum wage and overtime requirements of the FLSA and under various states’ laws. In the Elite intern lawsuit – a case of first impression within the industry and also one of the earliest of this kind in any industry – without filing a motion to dismiss, Weil convinced Plaintiff to voluntarily dismiss various causes of action which alleged a variety of recordkeeping violations under the FLSA and New York law, and to file an amended complaint which yielded strategically useful information at an early stage regarding the Plaintiff’s hours worked. That information was critical to Elite’s defenses and litigation strategy, and is usually not disclosed by Plaintiffs, if at all, until the discovery phase of the case. Subsequently, Weil short-circuited the case for Elite by relying on the U.S. Supreme Court’s decision in Genesis Healthcare Corp. v. Symczyk – issued only two months after the Elite lawsuit was filed – which held that if the defendant makes an offer to the plaintiff that would result in the plaintiff’s “complete relief,” then the plaintiff does not have standing to continue the case on behalf of the class of potential plaintiffs. Armed with information from Plaintiff’s revised pleadings and Elite’s electronically stored information, Weil made small, four-figure offers of judgment to the representative plaintiffs. Weil then leveraged its offers of judgment (and the uncertainty those offers created for Plaintiffs’ claims under Genesis) to push the case into mediation, before discovery had taken place, and ultimately negotiated a settlement under which Elite paid only $90,000 in total to the class members, in a case in which Plaintiffs were seeking more than $50 million on behalf of the class.

Weil currently represents Elite in a putative class action that aims to take on the entire New York modeling industry by challenging the classification of models as independent contractors. The action, which also includes claims for conversion, breach of the covenant of good faith and fair dealing, breach of contract, and unjust enrichment, is brought against some of the leading model management firms in the world. The case is the first of its kind of New York state, and has the potential to alter the landscape of the entire modeling industry.

Weil defended Forest Laboratories, Inc. and its subsidiary, Forest Pharmaceuticals, Inc., in a nationwide collective and New York class action involving an issue of central importance to the pharmaceutical industry as a whole: whether pharmaceutical sales representatives are exempt from the overtime requirements of the Fair Labor Standards Act and comparable state labor laws. During discovery, Weil’s defense team substantially limited the size of the potential class and then, arguing that the U.S. Supreme Court’s June 2012 ruling in Christopher v. SmithKline Beecham Corp., dba GlaxoSmithKline  was dispositive on all issues in the case.  Weil obtained a complete dismissal of the action with prejudice, and Forest made no payment whatsoever in the case.

Weil defended Gate Gourmet in two related complex nationwide class and collective actions involving wage and hour claims under federal and California law, winning a motion for summary judgment that resulted in the dismissal of all federal claims and the key state law overtime claims.

Weil successfully represented Seacor on two wage and hour claims brought by seamen and ship captains alleging violations of California’s wage and hour laws with regard to overtime compensation, waiting time penalties, failure to provide a mandated day of rest, and unfair business practices.

We were retained by a leading Canadian financial institution to act as its special advisor in connection with one of the first wage and hour class actions ever brought in Canada, and assisted in successfully defeating class certification.