Wage and Hour

We have handled many actions alleging wage-and-hour law violations for our retail clients, including:

• See’s Candies in defeating class certification for claims on meal and break policies. We used a fact-gathering campaign to demonstrate that See’s policies were lawfully applied, even when a statistical analysis of employee timecards suggested otherwise, and successfully defended that result on appeal.
• 99 Cents Only Stores in:
  • a lawsuit alleging wage and hour violations on an individual and class-wide basis, as well as a Private Attorneys General Act (PAGA) claim for civil penalties. On appeal and remand, we compelled individual arbitration of the plaintiff’s wage and hour claims, which the plaintiff chose to dismiss, and have agreed to mediate the PAGA claim.
  • defeating class certification in a wage-and-hour class action for alleged off-the-clock work arising from store security policies.
  • resolving a PAGA action involving over 30,000 employees for just $289,000 after using aggressive motion practice to cause the plaintiffs to abandon most of their claims.
• A retail client in providing advice relating to premium pay ordinances for employees working in essential services during the pandemic.
• Major retailers in so-called suitable seating cases, all of which we helped resolve at extraordinary discounts – some for less than a penny per dollar claimed.

Class Actions

Munger, Tolles & Olson is known for delivering innovative legal strategies and extraordinary results in class action litigation on behalf of its clients. Our recent representations include:

• Juul Labs in multi-district litigation before the Northern District of California and in California state court consolidated proceedings. We also provide Juul with strategic and legal advice and, where appropriate, enter appearances and actively litigate matters in connection with various civil actions.
• Mattel in obtaining dismissal of a securities class action alleging that it engaged in illegal “channel-stuffing” and in successfully defending that dismissal on appeal, as well as in obtaining dismissal of an unrelated securities class action challenging Mattel’s disclosures regarding its cost savings program.
• A national pharmacy chain, in a Sixth Circuit appeal of a $650 million verdict arising out of multidistrict litigation concerning the opioid crisis.

Investigations

Our experience representing retail employers in sensitive issues includes:

• A major retailer in an investigation by what is now the California Civil Rights Department into sexual harassment allegations made by multiple claimants.
• A specialty retailer in an internal investigation of alleged sexual abuse of a minor employee by a high-level field manager.

Business Issues

We frequently represent retail and consumer products clients in strategic, corporate and financial matters, including:

• Nine West, Costco, Founders of Forever 21, Toys ‘R’ Us and Payless Shoes in restructuring proceedings.
• Nexus Capital Management in its mergers of FTD with From You Flowers, and Natural Balance Pet Foods with Canidae Pet Foods, as well as its acquisition of Lamps Plus.
• A luxury streetwear fashion house in its partnership with a multinational sportswear manufacturer and in general corporate strategic advice.
• Rent-A-Center in obtaining judgment that a merger termination was valid and merited payment of a $92.5 million termination fee, after an expedited trial in the Delaware Court of Chancery.
• Costco, in connection with canned tuna fish price-fixing claims against, among others, Bumble Bee, which sold its assets in a section 363 sale in bankruptcy court.
• Whirlpool, the world’s largest home appliance manufacturer, as a creditor to Sears, Roebuck and Company in its Chapter 11 bankruptcy case.
• Alter Domus, the agent for certain lenders under an asset-backed credit agreement with Revlon Inc. in connection with Revlon’s bankruptcy cases and use of cash collateral.

Case Study

We specialize in challenging matters that set important precedents, which is why clients turn to us when the stakes are high and they need a knowledgeable, experienced partner to help guide matters to an efficient resolution. Our work includes:

• See’s Candies: Defeating Class Certification through Statistical Analysis

Munger, Tolles & Olson secured a significant victory for See’s Candies when the California Court of Appeal, relying on detailed evidence we provided, rejected a proposed statewide employment class action based on alleged meal and rest period violations.

In the underlying matter, Salazar v. See’s Candies, current and former non-exempt, hourly employees sought to bring a wage-and-hour class action claim in Los Angeles County Superior Court on the basis that See’s meal and rest period policies violated California’s Labor Code. Because See’s shops are relatively small and often have only one staff member present, the plaintiffs sought to use expert analysis to show the candy maker denied rest/meal periods to employees who worked alone and/or on unusually long shifts because they, as the sole employees, had to remain in the shop and attend to customers.

In response, we demonstrated that the plaintiff’s expert misinterpreted key data and that the company had adopted and communicated lawful meal and rest period policies, as documented through an extensive fact-gathering campaign. We also showed that employees at different shops lawfully complied with these policies in many different ways, such as leaving early instead of taking a second meal break, making class certification improper. In April 2021, the court found that See’s official policy was fully compliant with California law. The plaintiff appealed, but in May 2021, the California Court of Appeal affirmed the trial court’s decision.

Media Coverage: See’s Candies Gets Calif. Appeals Win In Meal Break Suit

Contact:

Malcolm A. Heinicke