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Outback Wage Claims Unlikely To Win Class Cert.: Judge

Monday, September 12, 2011

An Illinois federal judge said Monday that he was unlikely to shift his stance against certifying state law class claims in a suit accusing the Outback Steakhouse chain of failing to pay minimum wage to employees at one of its locations.  Magistrate Judge Morton Denlow told attorneys for the three lead plaintiffs and OS Restaurant Services Inc., Outback's parent company, that he would probably stick with the conclusion he reached in his 2009 report and recommendation that the plaintiffs in the Fair Labor Standards Act-certified opt-in collective action failed to show that giving their state law claims the opt-out class action treatment was superior to treating them individually.

The lawyers presented their oral arguments Monday for and against the plaintiff's revived bid for class certification on the state law wage and hour claims after the Seventh Circuit issued a January ruling in the case saying that plaintiffs can pursue Rule 23 certified opt-out class claims simultaneously with claims certified under the FLSA.  In that ruling, the appeals court did not rule on whether the Outback plaintiffs had met the superiority requirement for class certification under Rule 23 and remanded the case. The plaintiffs, meanwhile, told the district court that new case law had developed while the suit had been pending regarding Rule 23's predominance requirement for some of their claims.  In May, U.S. District Judge Ronald Guzman asked the magistrate judge to revisit those issues.  Judge Denlow said Monday that he still thought the case required too many "individualized determinations" regarding which non-tipped duties the Outback employees allegedly performed at sub-minimum wage payment to warrant certification of their state law claims.  (click on link to read full story)

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