EMPLOYMENT LITIGATION

An Innovative Strategy Creates a Class Action Victory

The Case:

Servers v. National Mexican Restaurant Chain*.
Case filed on July 18, 2012. The Court approved the case’s settlement on Dec. 22, 2015.

The Result:

Markovits, Stock & DeMarco prevailed in the class certification issue and created a $2,200,000 settlement fund for the restaurant workers. The restaurant also separately paid one of our clients about $42,000 plus $200,000 in attorney’s fees and costs.

The Case:

Servers v. National Mexican Restaurant Chain*.
Case filed on July 18, 2012. The Court approved the case’s settlement on Dec. 22, 2015.

The Result:

Markovits, Stock & DeMarco prevailed in the class certification issue and created a $2,200,000 settlement fund for the restaurant workers. The restaurant also separately paid one of our clients about $42,000 plus $200,000 in attorney’s fees and costs.

The Case

In the summer of 2012, two waitresses approached Andy Biller about what they believed to be unlawful activity on the part of a manager at a group of Mexican restaurants. When Biller dug deeper, he discovered wide-spread wage and hour violations:  the Mexican restaurants unlawfully kept some of its wait staff’s tips, underpaid overtime hours, and required servers to work off-the-clock. Although the claims in the case are fairly common in wage and hour law, MSD’s approach was unique and resulted in the firm being able to create a substantial victory for our server clients.
In Ohio, prior to this case, the only way groups of workers could recover minimum wages was through a legal procedure called a “collective action.” Compared to traditional class actions, collective actions require workers to jump through extra legal hoops to collect their unpaid wages. One “hoop” is that each employee has to file a special form with the Court to join the case. This is not required in class actions. Most employees never take this extra step of filing the form and, as a result, do not get to collect any money from wage and hour cases.
MSD created a strategy that had never been attempted in Ohio: certify a class action to recover unpaid minimum wages.
MSD created a strategy that had never been attempted in Ohio: certify a class action to recover unpaid minimum wages.

The Strategy

MSD’s employment litigation and class-action lawyers combined their expertise and leveraged their deep understanding of both federal and Ohio minimum wage laws to create a strategy that had never been attempted in Ohio: certify a class action to recover unpaid minimum wages. To accomplish this legal feat, MSD had to argue a complex issue revolving around whether statutory restrictions applied to Ohio’s minimum wage constitutional amendment.

Creating Victory

MSD’s innovative strategy drew opposition not only from the defendant employer, but also from the Ohio Attorney General, who intervened in the case to prevent employees from using the class action mechanism to recover minimum wages. Presumably, the Ohio Attorney General intervened to try to force employees to use a less favorable minimum wage statute that was put on the books in response to the Ohio Minimum Wage Constitutional Amendment. The statute would force employees to file special forms to join a case for unpaid wages. MSD defeated both the employer’s and Ohio Attorney General’s arguments. In a legal first, the federal court recognized Ohio workers’ right to use a class action to recover minimum wages.
Shortly after this legal victory, the employer came to the table to discuss settlement, ultimately resulting in a $2.2 million settlement fund and another $200,000 to cover some attorney’s fees and costs.
In issuing its decision to approve the class-wide settlement, the federal district judge held “… the Court also finds that [MSD’s] attorneys were highly skilled… The litigation of the issue of [class] certification for Ohio minimum wage claims was, in particular, an area that required skillful wage and hour attorneys.”

*Part of the settlement required we not use the chain’s name in marketing efforts.