Jul 14
Posted by: Brian Schaffer
On July 7, 2014, Fitapelli & Schaffer, LLP filed a class action lawsuit against Costco Wholesale Corporation and the owners/operators of PopCorners, a brand of “all natural” popped corn chip products. The lawsuit alleges that the defendants failed to compensate Sales Representatives of PopCorners overtime pay. The plaintiff alleges that he would be required to hand out free samples in a specific Costco location and be required to work from open to close of the store. As a result of this practice, the plaintiff worked in excess of 40 hours per week without being paid time and one half his regular hourly wage rate. Instead, the plaintiff was paid a fixed weekly salary regardless of the amount of hours he worked.
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Jul 14
Posted by: Brian Schaffer
Fitapelli & Schaffer, LLP filed a class action lawsuit against Century 21 Department Stores, nationwide, on July 7, 2014. The lawsuit alleges that Century 21 failed to properly notify and receive proper authorization from employees and job applicants before it conducted a background check on them as required under the Fair Credit Reporting Act (“FCRA”). The lawsuit also alleges that Century 21 violated the FCRA by failing to provide the proper notification to the employee or job applicant before it took adverse action (i.e., fired or failed to hire) based on information discovered in the background check and failed to provide proper notices after it took adverse action.
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Jul 14
Posted by: Brian Schaffer
On July 2, 2014, the Court granted plaintiffs’ motion for leave to amend the Complaint. The complaint alleges that Chipotle Mexican Grill violated the Fair Labor Standards Act, New York Labor Laws, and other supporting New York State Department of Labor regulations by misclassifying its employees in order to avoid paying them overtime compensation. According to the complaint, “Apprentices” spent the majority of their shift completing non-exempt duties such as working on the assembly line, filling orders, grilling food, and preparing food items.
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Jul 14
Posted by: Brian Schaffer
On October 2, 2013, Fitapelli & Schaffer, LLP filed a lawsuit alleging that Defendants Moonstruck Diners failed to pay non-exempt workers the proper minimum wage rate, overtime pay and spread-of-hours pay as required under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law.
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Jul 2
Posted by: Brian Schaffer
A major decision was reached on July 1, 2014 in the Houser v Pritzker case pending in the U.S. District Court Southern District of New York. The case was filed on April 13, 2010 against the Census Bureau, an agency of the United States Department of Commerce that is charged with conducting a population and housing census every ten years.
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Jun 26
Posted by: Brian Schaffer
The Fair Credit Reporting Act (“FCRA”) is a federal law that protects employees by restricting the use of their criminal and credit reports. Before an employer can even conduct a background check, it has to notify the employee in writing and get the employee’s written authorization. In order for the notice and authorization to be sufficient, the employer must meet the strict guidelines set forth by the FCRA. Even when the employer wants to take adverse action (fire, demote, or not hire) against an employee based on information obtained in the background check, it must comply with the strict notice requirements of the FCRA before and after it takes adverse action against an employee.
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Jun 24
Posted by: Brian Schaffer
An Act sitting in the New York State Senate may bring important changes to the New York Labor Law. If Governor Cuomo signs the Act then employers will no longer be required to provide annual wage notices. Instead employers will only have to provide an employee with a wage notice upon hire. If an employer does not provide an employee with a wage notice after 10 business days of the employee’s first day of work, then a penalty of up to $5,000 will be imposed. Further, the penalty to employers who fail to provide accurate wage statements will also increase to $5,000. One distinction from the previous provision of the law is that these new penalties will now accrue on a daily basis instead of on a weekly basis perhaps to encourage employers to provide wage notices and accurate wage statements in a timely manner.
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Jun 23
Posted by: Brian Schaffer
On June 18th, 2014, Senator Tom Harkin along with 8 other Senate Democrats launched the Restoring Overtime Pay for Working Americans Act in order to protect low and mid-wage salaried workers. As our outdated overtime laws deny many Americans nationwide pay that reflect their hours worked, this legislation would help employees achieve the simple right of being adequately compensated for a long days work.
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Jun 12
Posted by: Brian Schaffer
On June 10, 2014, Fitapelli & Schaffer, LLP filed a class action suit against celebrity chef Daniel Bouloud alleging violations under the New York Labor Law. Alleged violations include failure to pay tipped workers the adequate minimum wage, overtime compensation, tip misappropriation, spread-of-hours pay, and failure to provide proper wage notices. Plaintiffs allege that they were required to spend a substantial amount of time performing non-tip “side work,” including but not limited to: checking and cleaning bathrooms; replacing candles and cleaning candle holders; vacuuming; polishing glasses, plates, trays, and silverware; cleaning and polishing the kitchen; removing carpets; cutting bread; cutting and preparing fruit; preparing fruit juices; preparing wet towels for the kitchen’s expediting station; cutting and rolling papers for French fries; folding napkins; preparing to-go bags; filling condiments; and attending pre-shift meetings.
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Jun 9
Posted by: Brian Schaffer
On November 15, 2012, Plaintiffs filed a complaint alleging that Chipotle violated the Fair Labor Standards Act (“FLSA”) and New York Minimum Wage Act. On June 6, 2014, the Court held that the Defendants were not entitled to individualized discovery from each opt-in plaintiff as a matter of law. Scott v. Chipotle Mexican Grill, Inc., No. 12-cv-08333, (S.D.N.Y. June 6, 2014). While Chipotle argued that limited or representational discovery would harm their defense, the Court held that in class action cases, the Plaintiffs are able to present the testimony of a representative sample of employees as proof of a prima facie case.
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Jun 5
Posted by: Brian Schaffer
On March 14, 2013, Plaintiffs filed suit against Amicus Mediation & Arbitration Group, accusing them of sending over 5,000 unsolicited advertisements via fax in violation of the Telephone Consumer Protection Act (“TCPA”). Kaye v Amicus Mediation & Arbitration Group, No. 3-13-cv-347, 2014 WL 2207431 (D. Conn. May 28, 2014). Defendants obtained Plaintiffs’ fax numbers through various sources including online searches and directories. The Complaint alleged that Plaintiffs never granted express consent to receive the advertisements. In certain messages, the fax allegedly failed to include a proper Opt-Out Notice; hence Plaintiffs were unable to send requests to Defendants to cease the faxes.
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Jun 3
Posted by: Brian Schaffer
On June 2, 2014, the Seattle City Council unanimously voted to increase the city minimum wage to $15 an hour over the next several years, more than twice the current federal minimum wage of $7.25. The ordinance will go into effect April 1, 2015, with employers being phased in over three to seven years based on their size and benefits provided to their employees. For example, employers with 500 or more employees that do not provide health insurance will be required to reach the minimum by 2017, while those businesses that do provide health insurance will have until 2018 to comply. Smaller businesses may not be required to meet the minimum until 2021. In the early stages of transition, employers will be allowed to include tips as part of compensation in reaching the minimum.
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May 30
Posted by: Brian Schaffer
On May 28, 2014, a Fitapelli & Schaffer, LLP filed a class action lawsuit on behalf of all servers who work or worked at Levy Premium Foodservice d/b/a the Stadium Club at U.S. Cellular Field in Illinois, the home of the Chicago White Sox. The lawsuit alleges that servers should have been paid the full minimum wage rate ($7.25) instead of the reduced tipped minimum wage rate ($4.95) because the Stadium Club failed to properly notify them of the tip credit provisions of the Fair Labor Standards Act and improperly classified a mandatory service charge as a tip.
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Apr 23
Posted by: Brian Schaffer
The Buffalo Bills reached a settlement in a class action lawsuit that could potentially be worth more than $3 million. About 39,750 fans signed up to receive texts from the Buffalo Bills. The terms and conditions stated that the Bills could send 3 to 5 texts per week for a period of 12 months, but the class action lawsuit, originally filed in 2012, alleged that the Bills sent more than the allowed amount on several occasions. If all of the class members claim their award of damages, the Bills would pay a total of $2,487,745. Also, the Bills will pay an additional $562,500 for Plaintiff’s attorney fees.
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Apr 21
Posted by: Brian Schaffer
Order granting MSJ 4-15-16
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Apr 17
Posted by: Brian Schaffer
On April 17, 2014, Fitapelli & Schaffer, LLP filed a class action lawsuit against Carlson Restaurants Inc., Carlson Restaurants Worldwide, Inc., and TGI Friday’s Inc., who own and/or operate 920 T.G.I Friday’s restaurants in 60 countries and territories. T.G.I. Friday’s is a popular restaurant brand. This lawsuit alleges that T.G.I. Friday’s failed to pay proper minimum wages, overtime pay, spread-of-hours pay, and uniform-related expenses to servers, bussers, runners, bartenders, barbacks, hosts, and other tipped workers as required under the Fair Labor Standards Act and the New York Labor Law. Additionally, this lawsuit seeks to recover misappropriated tips, unlawful deductions from paychecks, and failure to keep accurate records in violation of the New York Labor Law. We are seeking to represent all tipped workers, including, servers, bussers, runners, bartenders, barbacks, and hosts, employed at T.G.I. Friday’s owned and/or operated by Carlson Restaurants Inc., Carlson Restaurants Worldwide, Inc., nationwide, from April 2008 to present. Eligible employees should call us to join the case.
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Apr 17
Posted by: Brian Schaffer
After an investigation conducted by New York State’s Attorney General, Eric Schneiderman, Seamless, the popular online food-delivery company, will change its fee structure for any new restaurant that signs up for the service – existing restaurants that use Seamless must adopt the changes over the next 12 months.
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Apr 14
Posted by: Brian Schaffer
A class action lawsuit was filed on April 11, 2014 against National Funding Inc. (“National Funding”) for allegedly violating the Telephone Consumer Protection Act of 1991 (“TCPA”) by sending fax messages to recipients’ home and/or business fax machines without their prior express written consent.
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Apr 8
Posted by: Brian Schaffer
A class action lawsuit was filed on April 8, 2014 against American Eagle Outfitters, Inc. and AEO Management Co. (collectively, “AEO”) for allegedly violating the Telephone Consumer Protection Act of 1991 (“TCPA”) by sending text messages to recipients’ cellular phones without their prior express written consent.
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Apr 2
Posted by: Brian Schaffer
On April 1, 2014, the First Department Appellate Division of New York unanimously reversed a decision made by the New York Supreme Court in Mendez v. Legends Hospitality, LLC that dismissed a complaint brought by waiters seeking to recover service charges and tips kept by Yankee Stadium’s catering company, Legends Hospitality. As a result, the case will be moving forward in New York Supreme Court.
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Apr 2
Posted by: Brian Schaffer
On March 27, 2014, the New York Court of Appeals reversed a New York Appellate Division decision in Jacobsen v. New York City Health and Hospitals Corp. by holding that an employer is generally precluded from obtaining summary judgment on a disability claim under the New York State and City Human Rights Laws unless it can show that it engaged in a good faith “interactive process” regarding the feasibility of the employee’s requested accommodation at the time of the employee’s request.
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Mar 21
Posted by: Brian Schaffer
On December 5, 2012, the New York Supreme Court entered judgment in Salemi v. Gloria’s Tribeca Inc. et al. against Gloria’s Tribecamex Inc., awarding the plaintiff damages in the principal amount of $1.6 million for violating the New York City Human Rights Law (NYCHRL). The defendants appealed the decision (claiming the awarded damages were grossly excessive) to the First Department Appellate Division of New York where it was affirmed on March 20, 2014.
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Mar 18
Posted by: Brian Schaffer
Since its launch in October 2013, Fitbit Inc. has received about 10,000 complaints from consumers/users that developed a rash and/or type of skin irritation from using the Fitbit Force. In February of 2014, Fitbit announced a refund program for anyone who purchased their Fitbit Force product. Shortly thereafter, the Consumer Product Safety Commission (“CPSC”) issued a recall of nearly 1 million units sold in the United States.
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Mar 12
Posted by: Brian Schaffer
On Thursday, March 13, 2014, President Obama will direct the Labor Department to revamp their regulations pertaining to overtime requirements. In further pursuit of President Obama’s economic agenda, the proposed regulations would increase the number of people who qualify for overtime, such as fast-food managers, loan officers, computer technicians and other positions that are currently classified as “executive or professional” employees in order to avoid paying them overtime. Currently, employees who make over $455 a week and perform executive tasks (i.e., supervising other employees) may qualify as an exempt employee. The proposed regulations seek to raise the income threshold of $455 a week and require that employees perform a minimum percentage of “executive” work before they can be exempted from qualifying for overtime pay. These new regulations can potentially shift billions of dollars of corporate income to the employees’ pockets.
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Mar 3
Posted by: Brian Schaffer
On January 2, 2014, the U.S. District Court for the District of New Jersey denied a motion made by Raymour & Flanigan to compel arbitration and stay proceedings despite the fact that an arbitration clause existed in its employment manual. Raymour & Flanigan is owned by Raymour Furniture Company, Inc. (“Raymour”) and is considered one of the largest furniture retailers in the United States.
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Mar 3
Posted by: Brian Schaffer
On February 25, 2014, the United States District Court of the Southern District of New York certified a class of consumers alleging claims of fraud and misrepresentation of Capatriti brand “100% Pure Olive Oil.” In Ebin v. Kangadis Food (13 Civ. 2311), Judge Rakoff sided for Plaintiffs/Consumers.
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Mar 3
Posted by: Brian Schaffer
On Wednesday February 26, 2014, Florida’s Third District Court of Appeal overturned an $80,000 settlement for age discrimination because the plaintiff/employee breached the confidentiality agreement.
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Feb 25
Posted by: Brian Schaffer
On February 7, 2014, three former minor league baseball players filed a class action lawsuit against Major League Baseball (“MLB”), MLB Commissioner Bud Selig, and the Kansas City Royals, Miami Marlins and San Francisco Giants baseball clubs alleging violations of state and federal labor laws. By doing so, the players are seeking to certify a class on behalf of thousands of current and former minor-leaguers, dating back at least three years.
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Feb 24
Posted by: Brian Schaffer
In Baccollo v. Muy! Brands, LLC, et al., a wage and hour case filed in the Southern District of New York, Plaintiff recently accepted Defendants’ Offer of Judgment awarding Plaintiff $31,813.25. This amount represents double the total amount of Plaintiff’s claim under the Fair Labor Standards Act (“FLSA”) in addition to reasonable attorneys’ fees, litigation expenses and costs of suit incurred by Plaintiff to later be determined by the Court. Plaintiff, a salaried employee referred to as an Assistant General Manager, alleged several wage violations, including that of unpaid overtime wages for all of the time that Plaintiff worked more than 40 hours per week. Although Defendants employed Plaintiff as an Assistant General Manager at their Taco Bell restaurants (one in New Jersey and one in New York) and paid Plaintiff a weekly salary, Plaintiff alleged that his duties were that of a non-exempt employee, thus entitling him to overtime compensation under the FLSA.
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Feb 19
Posted by: Brian Schaffer
On February 11, 2014, the First Department Appellate Division of New York affirmed denial of a motion to dismiss a claim brought originally by Plaintiffs, food and beverage servers at Madison Square Garden. Madison Square Garden is owned by MSG Holdings, LLC (“MSG”) and is considered one of the largest sports and entertainment complexes in the world. As a result of this decision, the case will proceed.
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Feb 7
Posted by: Brian Schaffer
On February 4, 2014, the U.S. District Court of the Southern District of Florida, granted a motion for class certification made by C-Mart, a Missouri corporation against MetLife, a company that sells life insurance policies, and its agents the Storick Group Co. (“Storick”), for alleged violations of the Federal Telephone Consumer Protection Act (“TCPA”) of 1991.
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Feb 3
Posted by: Brian Schaffer
$1.28 Million Awarded to Domino’s Delivery Workers
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Jan 30
Posted by: Brian Schaffer
On January 30, 2014, a local law was passed to amend the Administrative Code of the City of New York. This amendment enhances protection against employment discrimination due to pregnancy, childbirth, or a related medical condition. Under the new law, employers who meet certain criteria are required to provide “reasonable accommodations” to pregnant women, or women who suffer medical conditions relating to childbirth and pregnancy. Examples of “reasonable accommodations” include bathroom breaks, assistance with manual labor, and period rest for physically demanding jobs.
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Jan 28
Posted by: Brian Schaffer
Sandifer v. United States Steel Corp., No. 12-417, __ S. Ct. __ (2014)
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Jan 25
Posted by: Brian Schaffer
New York State’s minimum wage has increased for the first time since 2009. This long overdue revamping of New York’s minimum wage is only the beginning. The minimum wage is set to increase an additional two times over the next two years. The first increase, which took place on December 31, 2013, set the current minimum wage at $8.00 an hour. Prior to this increase, minimum wage was set at a meager $7.25 an hour, in accordance with the federal minimum wage. The following increase is set to occur on December 31, 2014, and will raise the minimum wage to $8.75 an hour. Finally, the last of the minimum wage hikes will happen on December 31, 2015, and will set the minimum wage at $9.00 an hour. The minimum wage raise has been spread out over the next 2 years in order to make it more tolerable to employers.
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Jan 23
Posted by: Brian Schaffer
On January 22, 2014, “Lacy T.”, on behalf of the Oakland Raider Cheerleaders, filed a class action lawsuit in Alameda County Superior Court against the Oakland Raiders alleging unfair pay practices. Most glaringly, the “Raiderettes” claim that their yearly salary of $1,250.00 equated to roughly $5.00 per hour, well below the minimum wage, after considering all of their required obligations throughout the year, which may have consisted of up to 300 appearances.
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Jan 23
Posted by: Brian Schaffer
On April 1, 2014, the first law enacted under New York Mayor Bill de Blasio will likely go into effect. This new legislation will require any business with at least five employees to provide a minimum of 5 paid sick days per year. This bill supersedes the previous legislation, which required employers to offer the same 5 paid sick days per year, but only applied to businesses with at least 15 employees. The new law will also remove certain “political compromises” included in the previous legislation which would have lessened its initial impact, specifically: a gradual phase-in period, exemptions for the manufacturing sector, and “economic triggers” that would allow implementation of the law to be delayed based on certain economic benchmarks. This new policy is advanced in accordance with Mayor de Blasio’s election campaign promises, where he used paid sick leave as one of his major platforms. It also reflects a shift from the independent values of former Mayor Bloomberg to the more liberal leaning values of new Mayor de Blasio.
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Dec 3
Posted by: Brian Schaffer
Stamped Complaint – 13 Civ 8487_11-27-13
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Dec 3
Posted by: Brian Schaffer
Stamped Complaint – 13 Civ 8488_11-27-13
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Oct 30
Posted by: Brian Schaffer
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Oct 28
Posted by: Brian Schaffer
On October 25, 2013, the U.S. District Court (S.D.N.Y.) denied Defendant’s motion for Interlocutory Appeal. As a result, the case will proceed as a collective action and notice will be sent to current and former employees of Chipotle Mexican Grill giving them the opportunity to join the lawsuit.
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Oct 15
Posted by: Brian Schaffer
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Oct 3
Posted by: Brian Schaffer
Stamped Complaint – 13 Civ. 6977 (10-2-13)
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Oct 3
Posted by: Brian Schaffer
Stamped Complaint – Hernandez v. Energy Kitchen, Inc., et al – 13 cv 6978 (LGS)(GWG)_REDUCED SIZE
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Sep 26
Posted by: Brian Schaffer
Order granting 216(b) 9-20-13
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Sep 17
Posted by: Brian Schaffer
Stamped Complaint – 13 Civ. 6530 (reduced size)
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Aug 23
Posted by: Brian Schaffer
Stamped Complaint – Monzon v. 103W77 Partners, LLC, et al 13 cv 5951 (AT)
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Aug 12
Posted by: Brian Schaffer
On August 6, 2013, the United States District Court ruled against Astoria Brewhouse (“Defendant”) in their motion to dismiss several claims filed by former employee/bartender Nicholas Ritz (“Ritz”) alleging violations of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The Defendant’s motion to dismiss was regarding a previous offer made to Ritz which it believed made the Plaintiff’s claims moot. More specifically, after Ritz received class certification in order to notify other current and former Astoria Brewhouse employees whose FLSA and NYLL rights were violated, the Defendants made what they believed to be a full offer of potential damages. Ritz did not respond to the offer, thus rejecting it, because it failed to address the claims of other current and former Astoria Brewhouse employees. In light of Ritz’s rejection, the Defendant moved to dismiss the lawsuit as they claimed recent Supreme Court of the United States (SCOTUS) decision, Genesis Healthcare Corp. v. Symczyk held that when a full offer is made to a plaintiff and it is nonetheless rejected, their claims become moot and the Court has the duty to dismiss the case. Ritz did not agree with this viewpoint as Fitapelli & Schaffer Partner, Brian Schaffer, stated during oral argument “the defendant is using the Rule 68 here as a tool to pick off plaintiffs and effectively short-circuit the collective action mechanism which was explicitly authorized by Congress in Section 216(b) of the Act.”
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Jul 29
Posted by: Brian Schaffer
Scanned First Amended Complaint 10-4-13
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Jul 10
Posted by: Brian Schaffer
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