Posted December 16th, 2014.
As It Appeared On
Law360, New York (December 15, 2014, 8:36 PM EST) —Sanford Heisler LLP Chairman David Sanford navigated the challenging environment for employee lawsuits created by recent U.S. Supreme Court decisions to secure class certification for workers in separate employment suits against KPMG LLP and Ma Laboratories Inc., earning himself a spot among Law360’s Employment MVPs.
Since the high court’s 2011 Wal-Mart v. Dukes decision raised the bar for obtaining class certification, Sanford has put in “a lot of homework” in order to get classes certified in some high-profile cases.
“One thing that distinguishes our firm is the amount of time and resources we put into cases in the presuit filing stage,” he said. “You need to have a fairly healthy anecdotal basis and a good number of people willing to say they have experienced practices that can be viewed as discriminatory.”
By conducting an extensive investigation of the company’s policies and talking to as many people as possible, the firm is able to make a strong case that a class should be certified, he said.
“It’s very difficult in today’s legal climate, given the Supreme Court’s rulings, to be successful in class certification, but our firm has been successful in many class certification decisions in the last few years,” he said.
That work paid off in two cases in 2014. In July, U.S. District Judge Lorna G. Schofield of the Southern District of New York certified a class in a suit against major accounting firm KPMG alleging the company underpaid female client service and support professionals.
Notice is being mailed to 9,000 former and current female employees who worked in either the tax or advisory practice groups from October 2008 to the present.
Sanford said earlier this month that 700 employees have opted in so far and that the firm expects a total of 1,500 to opt in by Jan. 31. It also plans to ask the court to allow those who did not opt in to participate in the suit. A trial is expected in about 18 months.
In granting class certification, Judge Schofield found that the plaintiffs made a factual showing that they were discriminated against.
“Plaintiffs have submitted declarations detailing their personal experiences; documentary evidence of KPMG’s firmwide compensation policies and job descriptions; and statistical evidence of discrimination,” she wrote. “This is sufficient to satisfy plaintiffs’ burden at this stage of litigation.”
Sanford Heisler notched a similar victory in October, when Judge Peter H. Kirwan of the Superior Court of the State of California certified a class in a wage-and-hour case the firm brought against computer components manufacturer Ma Laboratories Inc. The class list includes more that 550 employees, the majority of whom work in the company’s San Jose headquarters.
The judge held that workers awaiting instructions at the beginning of their shift are considered on the clock and should be paid.
“Even those who are waiting for instructions in the morning are clocked in and subject to Ma Labs’ control,” the judge wrote. “Under plaintiffs’ theory, this still constitutes ‘hours worked’ for purposes of compensation, and the necessary findings can be made from the timekeeping alone.”
The case is on a rapid schedule, with a trial set to begin Feb. 2, less than four months after the class was certified.
In addition to his class certification successes, Sanford and his firm secured two multimillion-dollar settlements for employee whistleblower clients.
In September, Smith & Nephew Inc. agreed to pay $8.3 million to settle a suit alleging that it passed off Malaysian-made products as made in the U.S. In addition, the company agreed to pay $3 million in attorneys’ fees for Sanford’s client, Samuel Cox III, who will also receive 28 percent of the settlement amount, or $2.3 million.
The suit by Cox, Smith & Nephew’s form information technology administrator, alleged that the the company violated the U.S. Trade Agreements Act, which requires that government contractors certify that they only sell products made in the U.S. or in a country that has signed a trade agreement with the U.S. Malaysia has no trade agreement with the U.S.
The settlement is believed to be the first in a case against a medical device company under the law. The suit was filed in 2008 and “we wound up litigating for years,” Sanford said. “It was an interesting case and a case of first impression.”
Also in September, surgical outpatient clinic operator Meridian Surgical Partners LLC agreed to pay $5.1 million to settle claims by a whistleblower represented by Sanford in a False Claims Act case.
Thomas Reed Simmons, a former business office manager, alleged that the company violated the law by disguising kickbacks as investment interests for doctors who steered valuable Medicare patients its way.
After Dukes and other Supreme Court rulings created hurdles for employees, many employee-side employment firms either went out of business or retooled their business. That leaves Sanford Heisler, which has 30 attorneys in offices in Washington, D.C., New York and San Francisco, in a unique position, Sanford said.
“We’re one of the few firms left in the U.S. to do what we do,” he said. “We hire people who are morally committed to this area of the law and feel passionately about it.”
–Editing by John Quinn.