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U.S.Jud.Pan.Mult.Lit.: 4 Off-the-Clock Cases Against Foot Locker Centralized to Venue of First-Filed Case
In re: FOOT LOCKER, INC.
These proceedings were before the Multi District Panel, pursuant to 28 U.S.C. § 1407. The defendants (Foot Locker) moved to centralize several pending cases, all arising from similar claims, in the Eastern District of Pennsylvania. At the time Foot Locker’s motion was made four actions were pending in four districts. Plaintiffs in all actions oppose centralization. Notwithstanding the opposition of all plaintiffs in all cases, the Panel granted Foot Locker’s motion.
Largely breaking from its prior jurisprudence (in granting the motion over opposition of multiple parties), the Panel reasoned:
“On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. No party disputes that these actions share factual questions arising out of allegations that Foot Locker routinely fails to pay retail employees wages for work they performed. These actions allege that (1) the timekeeping system used by Footlocker allows managers to modify or decrease the time recorded; and (2) Footlocker’s bonus policy encourages managers to force employees to work off-the-clock and to delete time recorded. As in In re Bank of America Wage and Hour Employment Practices Litigation, it appears that defendants’ timekeeping and labor budgeting policies and practices are corporate-wide and uniformly applied. See 706 F.Supp.2d 1369, 1371 (J.P.M.L.2010). Discovery among these actions regarding defendants’ corporate labor budgeting and timekeeping policies therefore will overlap. This litigation, like In re Bank of America, is distinguishable from wage and hour dockets “in which the Panel has denied centralization, because the duties of the employees at issue appeared to be subject to significant local variances.” Id. at 1371, n.3 (citing In re Tyson Foods, Inc., Meat Processing Facilities Fair Labor Standards Act (FLSA) Litig., 581 F.Supp.2d 1374, 1375 (J.P.M.L.2008)).
Plaintiffs’ primarily argue that informal coordination is preferable to centralization since only four actions are pending and plaintiffs are represented by common counsel. Plaintiffs make a strong case against centralization but, on balance, particularly given the likely overlap in discovery and pretrial proceedings, we are persuaded that centralization will promote the just and efficient conduct of this litigation. Though a large number of actions are not presently before the Panel, also weighing in favor of centralization is that additional related actions alleging similar class claims in other states could well be filed. Centralization in these circumstances will have the benefit of eliminating duplicative discovery; preventing inconsistent pretrial rulings, including with respect to class certification; and conserving the resources of the parties, their counsel, and the judiciary.
We are persuaded that the Eastern District of Pennsylvania is the most appropriate transferee district. The first-filed Pereira action has been pending there since May 2007, and Judge J. Curtis Joyner is familiar with the issues in this litigation. Although the Pereira action has been pending for some time, discovery is ongoing and, given that plaintiffs in all actions are represented by common counsel, plaintiffs will not be prejudiced by transfer to the Eastern District of Pennsylvania.”
Thus, although the Panel noted that the plaintiffs made a “strong case” against centralization, it centralized the case nonetheless.
Click In re: Foot Locker, Inc. to read the entire Transfer Order.
In re Sepracor Inc. Fair Labor Standards Act (FLSA) Litigation
Defendant Sepracor Inc. (Sepracor) moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation in the Middle District of Florida or, alternatively, the District of Massachusetts. Plaintiffs in an action pending in the District of Arizona action opposed the motion or, alternatively, suggested centralization in the District of Arizona. The Court was persuaded by the Plaintiffs in the Arizona action and transferred the MDL to that District stating:
“This litigation currently consists of two actions pending in two districts, one action each in the District of Arizona and the Middle District of Florida.
On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization under Section 1407 in the District of Arizona will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Each action brings claims under the Fair Labor Standards Act of 1938, and each alleges that defendants avoided paying overtime to employees classified as “pharmaceutical sales representatives.” Centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the District of Arizona is an appropriate transferee forum for this litigation, because the first-filed action is pending there and discovery is well underway in that action.”
U.S.Jud.Pan.Mult.Lit.: 7 “Assistant Manager” Misclassification Cases Against Enterprise Rent-A-Car Suitable For Centralization
In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation
Before the Multidistrict Litigation Panel was Plaintiff in an action pending in the Northern District of Illinois’ ( Averill ) Motion, pursuant to 28 U.S.C. § 1407, for centralization of this litigation in the Northern District of Illinois. This litigation currently consists of two actions pending in the Northern District of Illinois (including the moving plaintiff’s action) and five actions pending in the Middle District of Florida, the Southern District of Florida, the Northern District of Georgia, the Southern District of New York, and the Western District of Pennsylvania, respectively, as listed on Schedule A.
Granting Plaintiff’s Motion, the Court reasoned, “Plaintiffs in the six other constituent actions support centralization. With the exception of plaintiff in the Western District of Pennsylvania action, who urges that the Panel select that district as transferee district, all responding plaintiffs support selection of the Northern District of Illinois. Responding defendants Enterprise Rent-A-Car Co., Inc., and its affiliates, however, oppose centralization, and, if the Panel orders centralization over their objections, ask that the Eastern District of Missouri be selected as transferee district.
On the basis of the papers filed and hearing session held, we find that these seven actions involve common questions of fact, and that centralization under Section 1407 in the Western District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve allegations that defendants violated the Fair Labor Standards Act (FLSA) by misclassifying their assistant managers as salaried and thus not entitled to overtime. Centralization under Section 1407 will eliminate duplicative discovery and prevent inconsistent pretrial rulings (particularly with respect to plaintiffs’ multiple requests for certification of a nationwide collective action), and conserve the resources of the parties, their counsel and the judiciary.
In opposing centralization, defendants argue, inter alia, that the actions do not share factual issues, because individual Enterprise subsidiaries-unique to each state-employed the assistant branch managers and were responsible for classifying them as exempt and ensuring compliance with the FLSA. We are not persuaded by this argument, however, because the record indicates that the involvement vel non of Missouri-based Enterprise Rent-A-Car Co., Inc., in overseeing its subsidiaries and, in particular, setting policies affecting the employment of assistant managers is, in fact, an open question common to the actions in the litigation. On this and any other common issues, centralization under Section 1407 has the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to consider all parties’ legitimate discovery needs, while ensuring that common parties and witnesses are not subjected to discovery demands that duplicate activity that has already occurred or is occurring in other actions. See, e.g., In re Department of Veterans Affairs (VA) Data Theft Litigation, 461 F.Supp.2d 1367, 1368-69 (J.P.M.L.2006). As centralized proceedings evolve in the transferee district, it may be that unique issues in one or more of the subject actions render their continued inclusion in the multidistrict proceedings unnecessary or inadvisable. At that point, defendants (or the involved plaintiff or plaintiffs) are free to approach the transferee judge for a suggestion of remand to the transferor court. Whenever the transferee judge deems remand of any claims or actions appropriate, procedures are available whereby this may be accomplished with a minimum of delay. See Rule 7.6, R.P.J.P.M.L., 199 F.R.D. 425, 436-38 (2001).”
In re: U.S.A. Exterminators, Inc., Fair Labor Standards Act (FLSA) Litigation
Considering Defendant’s unopposed Motion to Consolidate 2 actions, one pending in the E.D.N.Y. and the other pending in the S.D.N.Y., the Court denied the Motion. The Multidistrict Panel reasoned “Section 1407 centralization would not necessarily serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation. Inasmuch as this litigation involves only two actions, which are pending in adjacent districts, the proponents of centralization have failed to persuade us that any common questions of fact are sufficiently complex and/or numerous to justify Section 1407 transfer in this docket at this time. Alternatives to transfer exist that can minimize whatever possibilities there might be of duplicative discovery and/or inconsistent pretrial rulings.”