Proskauer on Class and Collective Actions
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Mark W. Batten


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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The Supreme Court Favors Arbitration — Again

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

Looks Like Wal-Mart Has The Edge – But By How Much?

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

Class Arbitration Waivers: More Uncertainty

Continuing on our recent theme of conflicting rules on class issues, Judge Kimba Wood of the Southern District of New York ruled March 3 (PDF) that Ernst & Young could not enforce a provision in its employment contracts with its accountants that waived class claims and required claims against E&Y, including overtime claims, to be … Continue Reading

Seventh Circuit Says Hybrid Wage Cases Are OK

Class action defense counsel, at least, have argued for a long time that there is a basic incompatibility between collective action claims under the FLSA, which require individual plaintiffs to opt in to the litigation, and wage claims brought under state law, which generally are opt -out cases — meaning that everyone in the job classification … Continue Reading

Wal-Mart Is Going To The Show

The Supreme Court, not surprisingly, granted Wal-Mart’s petition for certiorari today, agreeing to review the 500,000-member class certification decision from the Ninth Circuit, which had held 6-5 that the class could be certified, even though, as Judge Kozinski wrote, the class members held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable … Continue Reading

More on Pleading Standards in Collective Actions

Since the Supreme Court’s decisions in Iqbal and Twombly, which seemed to require greater “heft” in pleadings than the more liberal standard that went before, class action defense lawyers (and non-class action defenders, for that matter) have been testing the value of those decisions, with inconsistent results.  Some courts have imposed little more burden on … Continue Reading

More Threats to Class Action Waivers

The post-oral-argument betting is that the Supreme Court will uphold California’s prohibition on class action waivers in arbitration agreements, in AT&T v. Concepcion — through some combination of conservative Justices concerned about protecting states’ rights and less conservative judges concerned about unconscionability.… Continue Reading

Stay of Tobacco Judgment Has Broad Class Action Implications

On September 24, 2010, Justice Scalia granted a stay, pending a certiorari petition, of a $241 million judgment against Philip Morris brought in Louisiana state court by a class of Louisiana residents.  Rejecting several arguments in favor of the stay, Justice Scalia found one persuasive: that defendants were denied due process because the individual class members were … Continue Reading

Hours bonuses don’t undermine FLSA exemptions

The Fair Labor Standards Act (FLSA) requires that employers pay exempt employees on a salary basis, generally thought to mean a fixed amount regardless of hours worked.  But many employers have either considered or implemented programs that pay bonuses to exempt employees who work extraordinary hours (please don’t call it “overtime”!).  Some cautious lawyers worry … Continue Reading