Mark W. Batten
Partner
Mark Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.
Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”
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On August 14, 2019, the National Labor Relations Board (the “Board”) held that employers may require employees to waive their right to join class and collective actions – even after a claim has been filed in court – without running afoul of federal labor law. Cordua Restaurants, Inc., Cases 16-CA-160901, 16-CA-161380, 16-CA-170940, and 16-CA-173451. Background … Continue Reading
In a unanimous decision authored by Justice Sotomayor on February 26, 2019, the Supreme Court held that the 14-day deadline to seek permission to appeal a decision granting or denying class certification under Federal Rule of Civil Procedure 23(f) cannot be extended through the doctrine of equitable tolling. Nutraceutical Corp. v. Lambert, No. 17-1094, 586 … Continue Reading
The Class Action Fairness Act (“CAFA”) permits removal of many class actions from state to federal court, but includes a “local controversy” exception that forbids removal where two-thirds or more of the proposed class resides in the state where the action is brought. In disputes over efforts to use CAFA to remove class actions, the … Continue Reading
Last week, in McCaster et al. v. Darden Restaurants, Inc. et al., No. 15-3258 (7th Cir. Jan. 5, 2017), the Seventh Circuit relied on Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and affirmed the district court’s denial of class certification of Plaintiffs’ claims for vacation pay under state law. The Seventh Circuit’s reliance … Continue Reading
Yesterday, the Supreme Court held in Campbell-Ewald Co. v. Gomez, No. 14-857 (U.S. Jan. 20, 2016), that when a defendant makes an offer to resolve the named plaintiff’s claim for full value, but the plaintiff turns it down, the case is not moot, and simply proceeds. Campbell-Ewald had argued that since it had offered to … Continue Reading
On September 11, 2015, the Eleventh Circuit became the first appellate court to address the standard for lawful unpaid internships since the Second Circuit’s ruling in Glatt et al. v. Fox Searchlight Pictures, Inc. et al. (For more on Glatt, see our post here). The new decision adopts the Glatt test and reasoning wholesale, and … Continue Reading
On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived a putative collective action brought by David Lola, a contract attorney, against Skadden and Tower Legal Staffing, Inc., alleging violations of the overtime provisions of the Fair Labor Standards Act. The Second Circuit … Continue Reading
On July 2nd, the United States Court of Appeals for the Second Circuit issued its decisions in Glatt et al. v. Fox Searchlight Pictures, Inc. et al. and Wang et al. v. The Hearst Corp., the two unpaid intern lawsuits heard in tandem by the court on January 30, 2015. The court’s opinion in Glatt, … Continue Reading
On March 10, 2015, a group of plaintiffs suing Goldman Sachs for gender discrimination suffered another setback in their attempt to certify a company-wide class in the case of Chen-Oster et al. v. Goldman, Sachs & Co., 10 Civ. 6950, pending in the Southern District of New York. In that decision, linked here, Magistrate Judge … Continue Reading
On November 13, 2014, the Fifth Circuit addressed the uncertainty stemming from its decision in Owens v. SeaRiver Maritime, Inc., 272 F.3d 698 (5th Cir. 2001), wherein the Court found that a plaintiff’s unloading and loading of vessels was considered “nonseaman” work subject to the Fair Labor Standards Act’s (“FLSA”) overtime requirements. Subsequent to that decision, … Continue Reading
Former Wal-Mart Stores, Inc. v. Dukes class members were dealt another blow this week when Southern District of Florida District Judge Robert N. Scola, Jr. granted Wal-Mart’s motion to dismiss more regionally-focused class claims that had been brought by certain members of the doomed Dukes class. In Love v. Wal-Mart Stores, Inc., No. 12-61959-Civ-SCOLA (S.D. … Continue Reading
In the latest chapter in what is now a twelve-year legal battle, plaintiffs seeking to bring gender-based disparate treatment and disparate impact claims against Wal-Mart with regard to the retail giant’s pay and promotion decisions were again denied class certification in Dukes v. Wal-Mart Stores, Inc., No. CV 01-022520-CRB (N.D. Cal. Aug. 2, 2013). Following … Continue Reading
The dissent in today’s Supreme Court decision on class certification, Comcast Corp. v. Behrends (PDF copy here), argues that “the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable on a class-wide basis.” The dissenters may be the only ones who think so, though. … Continue Reading
The editors wanted to share this analysis, by Proskauer’s Employment Litigation and Arbitration Group, of the Second Circuit’s interesting recent decision requiring a Title VII plaintiff, even in a class action, to arbitrate her claims:… Continue Reading
Since the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), plaintiffs in wage and hour cases have urged courts to ignore the decision, arguing that it only applies to discrimination cases, not to wage and hour matters. Surprisingly, considering that the Court was interpreting Rule 23, which applies … Continue Reading
We’ve been watching the stuttering progress of Wang v. Chinese Daily News for some time. The plaintiffs brought a wide range of claims, alleging denial of overtime, meal breaks, wage statements, and timely pay after termination, under the FLSA and California law. The district court certified the class and a collective action, and the case … Continue Reading
On Monday, February 4, the Seventh Circuit decided Espenscheid v. DirectSat, Inc. The decision is notable for two holdings. First, Judge Posner held, rather summarily, that there is no good reason to distinguish certification of opt-in FLSA collectives from opt-out Rule 23 classes, and that the same standards should apply. That is welcome news for … Continue Reading
In White v. Baptist Memorial Health Care Corp. (PDF), the Sixth Circuit held yesterday that summary judgment was properly granted for an employer against an employee’s meal break claim, where the employee had failed to record her time worked in the employer’s timekeeping system. The hospital had provided an “exception log” mechanism that allowed employees … Continue Reading
In AT&T Mobility v. Concepcion, 563 U.S. __, 131 S. Ct. 1740 (2011), the Supreme Court upheld a waiver of class arbitration in a consumer contract. Four recent moves have begun the process of responding to and exploring the boundaries of the Court’s decision.… Continue Reading
The Tenth Circuit ruled on Wednesday in Maestas v. Day & Zimmerman LLC (pdf) that an employee’s “primary duty” — which is the relevant inquiry in determining whether an employee is exempt from the Fair Labor Standards Act — is a question of fact, not a question of law. Although the ruling was a setback … Continue Reading
One potential early approach to a class action is to “decapitate” it — to knock out the claims of the class representative(s), often by finding some deficiency in their individual claim that supports a motion to dismiss or for summary judgment. Another approach, though, is to settle with the named plaintiffs. That buys no peace … Continue Reading
These days, a union protest or picket that doesn’t include a 16-foot inflatable rat, well, just isn’t really a protest. Expect to see more of them after the Board’s decision yesterday in Brandon Regional Medical Center (pdf). (For an enormous compilation of rat photos, see this link). The Board held that the ubiquitous rat may … Continue Reading
In recent years the U.S. Supreme Court has consistently favored arbitration against efforts to limit it, so long as the parties’ intent to arbitrate is clear. In 14 Penn Plaza v. Pyett, in which Proskauer represented the Petitioner, the Court held that parties to a collective bargaining agreement can require bargaining unit members to arbitrate discrimination claims … Continue Reading
Although the questions were flying in both directions yesterday, as usual for the Supreme Court, the tone of the Justices’ interaction suggested that Wal-Mart has the edge over the plaintiffs. As others have reported, Justices Kennedy and Scalia were quite skeptical of the plaintiffs’ theory that store-by-store discretion could be characterized as a common policy … Continue Reading
NLRB Greenlights Aggressive Response to Class Action Filings
By Mark W. Batten and Jacob L. Hirsch on Posted in Class/Collective Action
United States Supreme Court Says that Equitable Tolling Cannot Extend Deadline to Appeal Class Certification Decisions Under Rule 23(f)
By Elise M. Bloom, Mark W. Batten and Noa Baddish on Posted in Appeals, Class/Collective Action
Ninth Circuit Holds that Last-Known Addresses of Putative Class Members Are Insufficient To Satisfy CAFA Exceptions
By Mark W. Batten, Elise M. Bloom and Noa Baddish on Posted in Class/Collective Action
Seventh Circuit Affirms Denial of Class Certification for Failure to Show Commonality under Dukes in Vacation Pay Suit
By Mark W. Batten, Elise M. Bloom and Noa Baddish on Posted in Appeals, Class/Collective Action, FLSA
Supreme Court Takes Away a Class Action Defense Tool That We Couldn’t Really Use Anyway
By Mark W. Batten and Elise M. Bloom on Posted in Class/Collective Action
Eleventh Circuit Adopts Second Circuit’s “Primary Beneficiary” Test for Unpaid Interns
By Mark W. Batten and Rebecca Sivitz on Posted in Class/Collective Action, FLSA
Second Circuit Revives Contract Attorney’s Misclassification Suit
By Mark W. Batten, Elise M. Bloom, Allan Bloom and Rebecca Sivitz on Posted in Appeals, Class/Collective Action, FLSA, Misclassification
Second Circuit Adopts The “Highly Individualized” Primary Beneficiary Test In Unpaid Intern Lawsuits
By Mark W. Batten, Elise M. Bloom, Noa Baddish and Joshua Fox on Posted in Appeals, Class/Collective Action, FLSA, Misclassification
Magistrate Recommends Denial of Class Certification in Goldman Sachs Gender Discrimination Suit
By Mark W. Batten and Charles J. Stiegler on Posted in Class/Collective Action
Fifth Circuit Refuses Application of Bright-Line Test in FLSA Seaman Exemption Dispute
By Nicole Eichberger, Lindsey Chopin and Mark W. Batten on Posted in Appeals, Class/Collective Action, FLSA, Misclassification
Former Dukes Class Members Foiled by Eleventh Circuit’s “No Piggybacking” Rule
By Laura M. Fant, Elise M. Bloom and Mark W. Batten on Posted in FLSA
Plaintiffs Once Again Denied Class Certification in Dukes v. Wal-Mart Stores, Inc.
By Laura M. Fant, Elise M. Bloom and Mark W. Batten on Posted in Uncategorized
Supreme Court: Certification Requires Class-wide Proof of Damages
By Mark W. Batten on Posted in Uncategorized
Second Circuit Mandates Arbitration For Title VII Class Action
By Mark W. Batten on Posted in Arbitration, Title VII
Fourth Circuit Applies Dukes To A Wage And Hour Matter
By Mark W. Batten on Posted in Uncategorized
Wang v. Chinese Daily News: the Ninth Circuit Takes A Step
By Mark W. Batten on Posted in Uncategorized
Seventh Circuit Holds That Individualized Damages Preclude Certification
By Mark W. Batten on Posted in FLSA
Sixth Circuit Confirms Employees Must Report Time Worked
By Mark W. Batten on Posted in Burden of Proof, FLSA, Meal breaks
Nibbling Away at Concepcion
By Mark W. Batten on Posted in Uncategorized
Losing the Battle But Winning the War
By Mark W. Batten on Posted in Uncategorized
Decapitating Class Actions
By Mark W. Batten on Posted in FLSA
Increase in Rat Population Predicted
By Mark W. Batten on Posted in Uncategorized
The Supreme Court Favors Arbitration — Again
By Mark W. Batten on Posted in Uncategorized
Looks Like Wal-Mart Has The Edge – But By How Much?
By Mark W. Batten on Posted in Uncategorized
