Month: September 2025

By Gerald L. Maatman, Jr., Gregory Tsonis, and Christian J. Palacios

Duane Morris Takeaways:  On August 22, 2025, U.S. District Judge Matthew Kennelley for the Northern District of Illinois ruled that a group of supermarket meat, bakery, and deli managers could maintain their collective action against the grocery chain, Mariano’s, despite the differences in job responsibilities and store locations of collective action members. In the same order, Judge Kennelley denied Plaintiffs’ motion to certify a proposed class pursuant to Rule 23, highlighting the more demanding requirements for class certification. The case, captioned Depyper, et al. v. Roundy’s Supermarkets, Inc. et al., Case No. 20-C-2317 (N.D. Ill. Aug. 22, 2025) and available here, is significant because it is one of the first times a court considers a defendant’s “decertification” motion following the Seventh Circuit Court of Appeals decision in Richards, et al. v. Eli Lilly & Co., Case No. 24-2574, 2025 WL 221850 (7th Cir. Aug. 5, 2025), (“Eli Lilly”), which addressed the standard applicable for conditionally certifying an FLSA collective action. As this decision illustrates, although plaintiffs may face a higher legal bar for sending notice to a purported collective post-Eli Lilly, maintaining the collective after it has been “conditionally certified” is still subject to a much less demanding analysis than under Rule 23.

Background

Mariano’s and its banner store, Roundy’s Supermarkets, Inc. (“Defendant”), a well-known grocery store chain in the state of Illinois, was sued on April 14, 2020, by a former meat manager and bakery manager, alleging violations of the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”), seeking unpaid overtime wages and alleging they were misclassified as exempt under both laws. Two years later, on April 21, 2022, a former deli manager filed a similar lawsuit alleging similar violations on behalf of her and other similarly situated deli managers. Id. The first lawsuit was “conditionally certified” on November 9, 2020, and Defendant stipulated to conditional certification in the second action on June 14, 2022.

Following the close of the lawsuits’ respective notice periods, the first collective action (comprised of meat managers and bakery managers) numbered twenty-eight (28) plaintiffs, while the second collective action (comprised of deli managers and hot foods managers) contained seventy-six (76) plaintiffs. Id. The parties consolidated the actions shortly thereafter to streamline discovery. Id.

After the close of discovery, Plaintiffs moved for “final certification” of the FLSA collective and concurrently moved to certify a IMWL class under Rule 23 comprised of all Mariano’s deli, hot foods, bakery, and/or meat department managers which were paid a weekly salary and classified as exempt, within the statutory period. Id. at 5. In response, Defendant moved to “decertify” both collectives. Id.

The Court’s Ruling

In a lengthy, 39-page opinion, the Court denied Plaintiffs’ motion for class certification under Rule 23 while simultaneously granting Plaintiffs’ motion for collective action certification (thus denying Defendant’s decertification motion).

The Court considered Plaintiffs’ class certification motion first, holding that while Plaintiffs established a common question (i.e. whether Defendant maintained an unofficial policy of misclassifying department managers), they did not establish that common issues predominated over individual issues. Id. at 10-11.  As Defendant maintained that it properly classified Plaintiffs as exempt from the FLSA under the Administrative or Executive exemptions, the Court determined that individualized inquiries would be required to establish whether exempt work was the primary duty of an employee.  Id. at 14.  Thus, even though proving an unofficial policy “will move the plaintiffs’ claims forward,” the factfinder would still have to determine whether that policy resulted in a department manager having non-exempt primary duties.  Id.  Notably, the Court also credited various declarations provided by Defendant from department managers that indicated a wide range of “supervisory responsibility,” thus requiring further individualized inquiries regarding satisfaction of the discretion and independent judgment necessary to establish the Administrative exemption, further precluding predominance.  Id. at 15-16.  Finally, the Court also denied Plaintiffs’ fallback argument for “issue-class certification” under Rule 23(c)(4), similarly reasoning that even isolating the alleged misclassification policy as a common issue would not materially advance the litigation, given liability still turned on an individualized analysis of plaintiffs’ primary duties. Id. at 19.

With respect to Plaintiffs’ motion for FLSA collective action certification, the Court’s analysis and conclusion differed markedly. The Court first noted that FLSA collective actions do not have the same requirements as Rule 23 class actions and, unlike Rule 23, nothing in the FLSA required “adequate representation,” establishing predominance, or proving the superiority of proceeding as a collective. Id. at 21. Notably, the Court first analyzed and considered the Seventh Circuit Court of Appeals’ recent decision in Eli Lilly, which revised the standard for granting conditional certification of an FLSA collective, and its consequence on the instant action. As the Court noted, although Eli Lilly provided some guidance on the “notice” stage of an FLSA collective action, once opt-in discovery concluded, Plaintiffs bore the burden of establishing that they were similarity situated at the final certification stage by a preponderance of evidence. Id. at 23. The Court also noted that Eli Lilly was silent on the standard that district courts should apply to determine whether the collective contains “similarly situated” employees. Id. at 23.

Given the lack of guidance from the Seventh Circuit, the Court applied a three-factor test adopted by district courts in Illinois and elsewhere, which considers: “(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns.” Id. at 23.

Applying these factors, the Court determined that plaintiffs met their burden and could maintain both collectives. Specifically, the Court found that the collective members uniformly testified that they were classified as exempt, constrained by upper-level management hierarchy, expected to work 50 hours per week, and often performed the same tasks as hourly employees. Id. at 28. Though Defendant attempted to point to dissimilarities between Plaintiffs’ testimony and the department manager job descriptions, the Court noted that this argument “does not show a difference among the plaintiffs,” concluding that “[t]he fact that the plaintiffs uniformly testified that their job descriptions did not accurately reflect their actual work is a similarity among them, not a difference.”  Id.  The Court further rejected Defendant’s argument that managers’ job responsibilities varied across locations, noting that the fact that Mariano’s had forty-four (44) locations was not dispositive.  Id. at 27.   Defendant did not demonstrate how each store was different from the others, the Court opined, further noting that Defendant itself thought store location was “immaterial” when classifying department managers as exempt. Id. at 27-28. Accordingly, the Court certified the twenty-eight (28) collective action of meat and bakery managers and the seventy-six (76) collective action of deli and hot foods managers.

Takeaway for Employers

This decision highlights the relatively lenient standard applicable to FLSA collective actions, as opposed to Rule 23 class actions.  Significant variation among job duties, titles, and responsibilities may not be enough to defeat collective action certification, and Employers should formulate an aggressive strategy for obtaining record evidence of substantial dissimilarities to prevail at the decertification stage. The Depyper decision also demonstrates that, while the Seventh Circuit has weighed in on the notice requirement for conditional certification, district courts retain substantial discretion in deciding what standard to apply at the “decertification” stage in assessing whether FLSA collective action members are “similarly situated.”  Ultimately, even where employers prevail against Rule 23 class claims, they can still face costly and broad FLSA collective action litigation on wage and hour claims.

By Gerald L. Maatman, Jr., Eden E. Anderson, and Caitlin Capriotti

Duane Morris Takeaways: On September 4, 2025, the Washington Supreme Court issued its highly anticipated decision in Branson, et al. v. Washington Fine Wine & Spirits, LLC, et al., Case No. 103394-0 (Wash. Sept. 4, 2025), holding that job applicants are not required to prove they are a “bona fide” or a “good faith” applicant to obtain remedies under the EPOA in class action litigation.  The Washington Supreme Court acknowledged, but declined to address, other open issues under the EPOA, which means that state and federal courts in Washington will now be called upon to rule on other unresolved issues under the statute, including whether the EPOA even grants a private right of action to applicants in the first instance. 

Case Background

Washington state’s Equal Pay and Opportunities Act (“EPOA”) was amended in 2022 to require employers to include wage or salary range information in job postings.  Soon thereafter, a torrent of class action lawsuits followed, some filed by applicants who had legitimately sought employment, but far more filed by serial plaintiffs seeking recovery of staggering amounts of statutory damages and attorneys’ fees.  Before it was further amended in 2025, the EPOA provided for $5,000 in statutory damages per job applicant. 

Plaintiffs Lisa Branson and Cherie Burke submitted applications for retail positions with defendant and the job postings to which they applied did not contain the required salary or wage range information.  Branson interviewed for the position for which she applied and discussed pay during that interview, but did not accept the position she was offered. 

Subsequently, Branson and Burke filed a class action lawsuit invoking their right to statutory damages under the EPOA.  Although Branson seemingly was a bona fide job applicant, the defendant filed a motion to bifurcate discovery, arguing that plaintiffs were not the type of “job applicants” the EPOA was intended to protect and that the statute only applies to “bona fide” applicants.  The U.S. District Court for the Western District of Washington certified the following question: “What must a Plaintiff prove to be deemed a ‘job applicant’” under the EPOA?  The Washington Supreme Court accepted certification to resolve that question.  

The Decision

Relying first on the dictionary definition of “applicant,” as “one who applies for something,” the Supreme Court noted that the definition does not rely on the subjective intent of the individual to determine whether a person is an applicant.  Thus, the plain meaning of the term means only “one who applies” irrespective of their intent in doing so.  The Supreme Court noted that elsewhere in the EPOA the legislature used the phrase “bone fide,” but it did not do so in reference to job applicants, further confirming no such limitation. 

The Supreme Court also found telling the fact that the legislature originally considered conferring remedies broadly to “individuals,” but then amended the statute to confer remedies on applicants and employees, suggesting the legislature specifically considered who could obtain remedies and yet did not include any further words of limitation such as “bona fide.”  Additionally, the Supreme Court highlighted that although the agency charged with adopting rules implementing the statute, Labor & Industries, originally promulgated draft rules which defined a job applicant as a “good faith” applicant, that definition was withdrawn and never implemented. 

The Supreme Court repeatedly noted in the decision that, if the EPOA is to be limited to bona fide or good faith job applicants, the Washington legislature will need to act to make this change. 

Three of the nine justices issued a sharply worded dissent disagreeing with the majority’s ruling and expressing their view that the EPOA was not designed to “give bounty seekers an incentive to trawl the internet for noncompliant job postings to obtain a statutory damages award unrelated to any personal harm.”  Dissenting Opinion, at 2.

Although the outcome is not what employers were hoping for, there are silver linings in the Branson decision and, in particular, in the Supreme Court’s numerous footnotes.  Principally, although it declined to rule on the issue because the argument was not made by the defendant, the Supreme Court chose to highlight in footnote 3 that the EPOA may only confer a private right of action on employers, and limit applicants to filing claims with Labor and Industries.  The Supreme Court also chose to emphasize another argument made in amicus briefing in footnote 6 of the decision wherein it highlighted that the remedies available under the EPOA may be too severe and unconstitutional.  It declined to rule on that issue too as it also was not an argument made by the defendant.  Thus, these issues and many others remain unresolved and may soon be addressed by Washington state and federal courts as the legions of EPOA cases, all stayed pending the Branson ruling, are now litigated. 

Implications of the Decision:

The Branson decision is an unfortunate ruling for Washington state employers.  An unharmed plaintiff who never had any legitimate interest in a posted job position and whose only goal is to collect money through legal proceedings now has the green light to seek remedies under the EPOA.  That said, the Branson decision highlights other defense arguments that can and should be made in all pending EPOA cases.  The decision suggests that a private right of action is limited to employees, and that applicants can only seek remedies under the EPOA through administrative proceedings before Labor & Industries. 

By Gerald L. Maatman, Jr., Anna Sheridan, and Ryan T. Garippo

Duane Morris Takeaways: On August 22, 2025, in Shamburg, et al. v. Ayvaz Pizza, LLC, et al., No. 24-CV-00098, 2025 WL 2431652 (W.D. Va. Aug. 22, 2025), Judge Jasmine Yoon of the U.S. District Court for the Western District of Virginia partially dismissed a proposed nationwide collective action brought by pizza delivery drivers.  Although Plaintiff Chandler Shamburg (“Plaintiff” or “Shamburg”), and other plaintiffs, asserted nationwide Fair Labor Standards Act (“FLSA”) and state law claims from multiple jurisdictions, the Court dismissed nearly all of them for lack of personal jurisdiction. This ruling reinforces the growing trend of federal courts willing to apply the Due Process Clause’s protections to expansive FLSA collective actions and underscores the difficulty plaintiffs face in keeping sprawling, multi-state, wage claims altogether in one federal court.

Case Background

In 2024, Shamburg filed a putative class and collective action that alleged that Ayvaz Pizza (“Ayvaz”), a franchisee that “operates an unidentified number of Pizza Hut Franchise Stores within” Virginia, that is neither incorporated in nor has its principal place of business in Virginia, violated the FLSA and various state laws.  Id. at *1.  They also sued Ayvaz’s owner, Shoukat Dhanani, for this conduct as well.  Id.

Shamburg (and, ultimately several other plaintiffs) alleged that both himself, and other drivers, were “required to use their own cars, ensure their cars were legally compliant, pay car-related costs including gasoline expenses, maintenance and part costs, insurance, financing charges, and licensing and registration costs, pay storage costs, cell phone costs, and data charges, and pay for other necessary equipment.”  Id.  As a result, Shamburg and the out-of-state plaintiffs alleged that their hourly rate of pay dropped below the FLSA’s minimum wage guarantee because these expenses were “kicked back” to Ayvaz.  Id. at *1-2.  They also brought seventeen state law claims that “assert causes of action from seven different states and invoke both state statutory and common law.”  Id. at *8.

But, Ayvaz was no stranger to these issues.  It was also recently sued in Garza, et al. v. Ayvaz Pizza, LLC, No. 23-CV-01379 (S.D. Tex.), and Stotesbery, et al. v. Muy Pizza-Tejas, LLC, et al., No. 22-CV-01622 (D. Minn.), based on similar allegations.  Based on the existence of these prior two actions, and the presence of the out-of-state plaintiffs’ claims, Ayvaz and its owner moved to dismiss based on lack of personal jurisdiction (both general and specific), lack of supplemental jurisdiction, and the first-to-file doctrine.  Judge Yoon’s decision followed.

The Court’s Ruling

In general, Judge Yoon’s decision was split into four discrete parts — each addressing whether the Court could exercise various forms of jurisdiction over Ayvaz and its owner.  For the most part, the Court declined each type of jurisdiction.

General Personal Jurisdiction & Out-Of-State Plaintiffs

First, although it was uncontested that Ayvaz was neither incorporated in nor headquartered out of Virginia, Plaintiffs argued that Ayvaz was subject to general personal jurisdiction in Virginia based on the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023).  In Mallory, the U.S. Supreme Court held that Due Process does not prohibit “a State from requiring an out-of-state corporation to consent to personal jurisdiction to do business there.”  Id. at 127.  Like the Pennsylvania statute at issue in Mallory, Virginia also has “an out-of-state business registration statute.”  Shamburg¸ 2025 WL 2431652, at *5.

Judge Yoon, however, reasoned that “unlike Pennsylvania, Virginia law does not require the out-of-state business to condition its registration on submitting to general personal jurisdiction” consistent with the decisions of several other district courts.  Id.  Thus, the Court “conclude[d] that, absent explicit consent to jurisdiction in Virginia’s business registration statute” it could not exercise general personal jurisdiction over Ayvaz or its owner.

Specific Jurisdiction & Out-Of-State Plaintiffs

Second, the Court addressed the out-of-state plaintiffs’ argument that the Court could exercise specific personal jurisdiction over Ayvaz as to the out-of-state plaintiffs but disagreed.  Judge Yoon weighed in on the pending circuit split regarding the applicability of Bristol-Myers Squibb v. Superior Court, 582 U.S. 255 (2017), to FLSA collective actions.  The Third, Sixth, Seventh, Eighth and Ninth Circuits hold that Bristol-Myers applies, whereas the First Circuit stands alone and holds otherwise.

Judge Yoon agreed with “the approach taken by the majority of the Courts of Appeals” and held each plaintiff “must present independent, sufficient bases for the exercise of the court’s specific jurisdiction over that claim.”  Id. at *6.  Similarly, because none of the plaintiffs alleged facts related to the owner’s minimum contacts with Virginia “beyond the fact that Ayvaz is registered to do business in Virginia and operates an unidentified number of Pizza Hut Franchise Stores,” their claims could not proceed against him either.

The Seventeen State Law Counts

Third, having dismissed the out-of-state plaintiffs’ claims, Judge Yoon declined to exercise supplemental jurisdiction over the seventeen state law counts. The Court observed that “the presence of more subclasses (eight) than states (seven) provides evidence of both complexity and the lack of commonality” that show that the state law claims “would substantially predominate over the FLSA claim.”  Id. at *8.  The court dismissed those claims without prejudice, leaving only the FLSA claims brought by Virginia-based employees.

The First-To-File Doctrine

Fourth and finally, the Court declined Ayvaz’s request to dismiss the case under the “first-to-file” doctrine due to the existence of the earlier filed suits in Garza and Stotesbury.  The first-to-file rule allows a federal court to decline jurisdiction when a substantially similar lawsuit involving the same parties and issues is already pending in another court.  Id. at *10.  But, the court concluded that the “putative classes and respective issues” in the two prior suits differ enough that the first-to-file rule should not be applied.  Id. at *12.

Indeed, “Stotesbery, by design, includes an FLSA claim limited to those who work in Minnesota” and thus did not overlap based on the Court’s ruling.  Id.  And, the Court declined to apply the first-to-file doctrine to Garza because the “case was settled and dismissed with prejudice” and thus was not pending at the time of the decision.  Id. at *10.   “Accordingly, Plaintiffs’ complaint will survive the motion to dismiss with respect to the FLSA claim for Plaintiffs who live in or work in Virginia.”  Id. at *12.

Implications for Employers

The Shamburg decision demonstrates that courts are increasingly unwilling to allow out-of-state employees to anchor nationwide collective actions against employers without first affording employers certain due process protections.  This growing trend prevents employers from having to defend these actions in distant and unfamiliar courts, and forces plaintiffs to bring these actions where these employers are incorporated or headquartered.

With these trends in mind, corporate counsel should continue to monitor this blog for developments because the Bristol-Myers circuit split is sure to be decided by the U.S. Supreme Court soon, and if their companies are sued in putative class and collective actions, it is better to prepared in advance for when these important issues are decided.