18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 285 investigation pursuant to the primary jurisdiction doctrine, an abstention doctrine that applies when a Court has jurisdiction over a claim but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues placed within the special competence of the administrative body. Defendants’ position was that all of Plaintiffs’ claims should be dismissed or stayed pending the resolution of the NYSDOL investigations, as the NYSDOL’s investigations were sufficiently wide-ranging and comprehensive as to cover all the claims at issue in this case. The Court declined to apply the doctrine of primary jurisdiction. In rendering its decision that the primary jurisdiction doctrine should not apply in this case, the Court considered four factors. First, the Court found that the matters at issue were within the conventional experiences of judges and did not fall within the discretion of an administrative agency with more specialized experience, expertise, and insight. Despite Defendants’ invocation of the need for agency expertise, the Court pointed out that Defendants had not identified any specific technical or policy considerations that made this case uniquely suited to agency resolution. Rather, the Court opined that the resolution of the action hinged on the application of well-established statutory law to Defendants’ labor practices, as was the case in the numerous FLSA and NYLL cases that the Court regularly had adjudicated. In addition, the Court determined that the scope of the agency’s discretion factor also did not weigh in favor of application of the doctrine. The Court noted that this factor was typically met when a regulatory scheme places certain issues in the specialized discretion of an agency in the first instance, which was not the case in this matter. Third, the Court found that the risk of inconsistent rulings also did not weight in favor of abstention. While the Court acknowledged that the NYSDOL investigation created some such risk, the risk was ultimately speculative and applied only to a sub-set of the claims at issue. Moreover, the Court found that the prejudice to the class and collective members’ ability to pursue claims not clearly covered by the NYSDOL investigation was too great in this case. Finally, the Court found that the last factor, the existence of a prior application to the agency, weighed in favor of applying the primary jurisdiction doctrine. Considering the totality of these factors, the Court ruled that they weighed against an application of the primary jurisdiction doctrine. Although there was some risk of inconsistent rulings based on an existing investigation, the Court reasoned that the benefits of retaining complete jurisdiction over this case outweighed the costs especially in light of the length of time the case had been pending. For these reasons, the Court denied Defendants’ motion for summary judgment. Bolding, et al. v. Banner Bank, 2021 U.S. Dist. LEXIS 59477 (W.D. Wash. March 29, 2021). In this wage & hour collective action, Defendant filed a motion to disqualify the Blankenship Law Firm and class representative Kelly Bolding, alleging that they were inadequate representatives of the class because they were pursuing a separate gender discrimination lawsuit against Defendant. Defendant asserted that Bolding’s sworn testimony regarding overtime hours worked had changed over time. Defendant also contended that Blankenship should be barred from simultaneously representing a class and prosecuting individual claims against the same Defendant, as he was attempting to represent a class that included current and former managers whom were adverse, and counsel’s fee arrangement with Michael Manfredi was against public policy and created an insurmountable conflict. Id . at *2. The Court denied the motion to disqualify. The Court determined that Defendants knew of the facts and circumstances described for years, and therefore Defendants’ attempt to disqualify seemed to be both tactical and dilatory. The Court also held that there was no substantive conflict between Bolding’s interests and those of the absent class members, and Bolding’s gender discrimination claim was not based on the wage theft alleged in this lawsuit. As to Defendant’s contention that Bolding’s testimony regarding the number of hours of overtime she worked while employed as a mortgage loan officer changed, the Court reasoned that the discrepancy did not reveal a conflict of interest with other class members or suggest an inability or unwillingness to vigorously pursue the class claims. Id . at *7-8. Finally, the Court stated that Manfredi’s fee agreement with The Blankenship Law Firm did not create an incentive to sell the class short as a means of bettering Manfredi’s individual compensation. Accordingly, the Court denied the motion to disqualify the named Plaintiff and Plaintiffs’ counsel. Brewer, et al. v. Alliance Coal, 2021 U.S. Dist. LEXIS 134886 (E.D. Ky. July 20, 2021). Plaintiff, a coal mining employee, filed a collective action alleging that Defendant failed to pay all wages due in violation of the FLSA. Defendants Alliance Coal, AROP, ARLP, and ARMG as the parent entities that owned and controlled Excel Mining and MC Mining. Plaintiff asserted that that ARLP owned 98.9899% of the interest in AROP, which in turn owned 99.999% of the interest in Alliance Coal. Alliance Coal owned 100% of the interest in Excel Mining and MC Mining. Defendant AROP sought dismissal of the claims against it based on a lack of personal jurisdiction,