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Court Denies Penthouse Club Philadelphia's Motion For Summary Judgment

On June 30, 2014, the United States District Court for the Eastern District of Pennsylvania issued an opinion and order denying defendant Penthouse Club’s motion for summary judgment, ruling as a matter of law the plaintiff exotic dancer and similarly situated class members were employees, not independent contractors. The court had previously authorized the dissemination of notice in connection with plaintiff’s collective action claims under the Fair Labor Standards Act.

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Gary Lynch Appointed To Executive Committee In Target Data Breach MDL

On May 22, 2014, a federal district judge issued an order appointing Gary Lynch to serve on the five-person Executive Committee responsible for overseeing the prosecution of nationwide litigation against Target Corporation.  All cases stemming from the data breach which the retailer experienced in late 2013 have been consolidated before U.S. District Judge Paul A. Magnuson in the District of Minnesota.  Carlson Lynch was initially retained by numerous financial institutions which suffered damages as a result of measures the institutions were forced to take to protect their account holders from suffering identity theft and financial loss. The Executive Committee will work in conjunction with lead and liaison counsel to coordinate the litigation on behalf of both consumers and financial institutions.

The case is In re: Target Corporation Customer Data Security Breach Litigation, MDL No. 2522 in the U.S. District Court for the District of Minnesota.

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Gary Lynch Quoted In Wall Street Journal Risk Compliance Journal On Target Data Breach Litigation

In February of 2014, Carlson Lynch filed multiple class action lawsuits against Target Corporation on behalf of credit unions who suffered injury as a result of the security breach compromising Target store customers’ names, credit and debit card numbers, card expiration dates, personal identification numbers, and card verification values. The cases are currently pending in the United States District Court for the Western District of Pennsylvania. Carlson Lynch founding partner Gary F. Lynch was recently quoted in the Wall Street Journal Risk & Compliance Journal regarding the suits.

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ResCap Settlement Clears

As was reported previously on, Bruce Carlson is co-lead counsel on behalf of a class of approximately 45,000 residential mortgage borrowers whose claims were recently settled as part of the ResCap bankruptcy proceedings in the Southern District of New York.  The settlement was for an allowed claim amount of $300 million dollars.The bankruptcy court granted final approval of the settlement on November 27, 2013.  However, the effective date of the settlement was tied to confirmation of the bankruptcy plan.  We are pleased to report that the bankruptcy plan was confirmed by Judge Glenn on December 11, 2013. In confirming the plan, Judge Glenn noted that the ResCap bankruptcy was the most legally and factually complex matter that he has presided over since becoming a judge.

A more detailed description of the settlement is provided in the class notice section of this website.

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Carlson Lynch Wins Approval Of Class Settlement In ResCap Bankruptcy


On November 27, 2013, the United States Bankruptcy Court for the Southern District of New York granted final approval of a class settlement with an allowed claim amount of $300 million dollars. The negotiation of the settlement was reported previously on this website.  Bruce Carlson, who was co-lead counsel for the class in connection with this settlement, filed the first case initiating this litigation on behalf of residential mortgage borrowers more than (12) twelve years ago. A related case remains pending against PNC Bank in the Western District of Pennsylvania.

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Kessler Class

Carlson Lynch is pleased to announce a substantial settlement on behalf of a class of approximately 44,000 residential mortgage borrowers.  Bruce Carlson and Carlson Lynch are co-lead counsel for the Class. The settlement was negotiated as part of the bankruptcy proceedings  in the case captioned In re:  Residential Capital,  LLC, et al., Case No. 12-12020 (United States Bankruptcy Court, Southern District of New York). In connection with  the settlement the debtor has agreed to an allowed claim amount of $300 million for the Class. The settlement was  preliminarily approved on August 23, 2013 and the Final Approval hearing is scheduled for November 19, 2013.  A Notice which describes the settlement in more detail is posted in the Class Notice section of this website. Any questions regarding this settlement should be directed to Bruce Carlson.

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Carlson Lynch Named as Co Lead Counsel in Massive Predatory Lending Class Certified Against PNC

On July 31, 2013, the United States District Court for the Western District of Pennsylvania (Schwab, J.) issued an Opinion and Order certifying a class of second mortgage loan borrowers against Pittsburgh based PNC Bank N.A. The Order appoints Carlson Lynch and Bruce Carlson as co-lead counsel on behalf of the class.  In this case, Carlson Lynch asserts that Class Members were defrauded in connection with their second mortgage loans and, as a result, paid grossly excessive fees in connection with the loans.  PNC’s financial exposure in this case exceeds $500 million dollars.  Please contact Bruce Carlson with any questions regarding this litigation.

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Carlson Lynch ATM Accessibility Cases Continue To Generate Favorable Law For The Blind And Visually impaired

As noted in a blog posted previously on this website, Carlson Lynch has filed a substantial number of cases nationally challenging the ongoing failure of banks and financial services providers to comply with ATM accessibility requirements for the blind and visually impaired. These cases assert claims under the Americans with Disabilities Act (“ADA”) and, where appropriate, parallel state laws. A number of bank defendants have filed baseless, cookie-cutter motions to dismiss challenging the standing of the named plaintiffs in these cases. On July 12, 2013, a United States Magistrate Judge sitting in the Middle District of Pennsylvania issued a comprehensive Report and Recommendation in Klaus v. Jonestown Bank and Trust Co. recommending the denial of a standing-based motion to dismiss. This is the sixth opinion endorsing plaintiffs’ position in the cases filed by Carlson Lynch. By Order dated August 13, 2013, United States District Judge Christopher C. Connor adopted the Magistrate Judge’s Report and Recommendation denying the defendant bank’s motion to dismiss. To date, no court has granted a motion to dismiss in any of these cases.

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Carlson Lynch Files Class Action Complaint Against Philadelphia Penthouse Club

On May 31, 2013, CLSK filed a class/collective action complaint against the Penthouse Club (Philadephia). The plaintiff is an exotic dancer. The Complaint alleges that the defendant misclassified plaintiff and the class as independent contractors instead of employees, thereby depriving them of substantial compensation and other benefits. This case is one of several similar cases that CLSK has filed throughout the country.

Supreme Court of the United States

US Supreme Court Hands Down FLSA Pick Off Opinion Genesis Healthcare Corp. v. Symczyk

On April 16, 2013, the United States Supreme Court decided Genesis Healthcare Corp. v. Symcyzk, a case in which Gary F. Lynch served as Counsel of Record on behalf of Respondent Laura Symczyk.  In a 5-4 decision, the Court held that a collective action under the Fair Labor Standards Act (“FLSA”) is not justiciable and may not proceed when the lone plaintiff’s individual claim becomes moot.

The FLSA authorizes a private cause of action against employers violating certain FLSA provisions.  29 U.S.C. § 216(b).  Employees may sue on their own behalf and on behalf of “other employees similarly situated.”  Id.  Respondent, a registered nurse, brought such a “collective action,” alleging that petitioners, her former employers, violated the FLSA by deducting a 30-minute unpaid meal break from each shift even if the employee worked during that time. Petitioners made Respondent an offer of judgment under Federal Rule of Civil Procedure 68: $7,500 for alleged unpaid wages and reasonable attorneys’ fees, costs and expenses. When Respondent failed to respond to the offer, Petitioners moved to dismiss for lack of subject-matter jurisdiction, arguing that their offer of complete relief rendered Respondent’s FLSA claim moot. Noting that no other employees had yet joined Respondent’s suit, the district court agreed with Petitioners and dismissed the suit. The Third Circuit reversed. Although recognizing that Petitioners had offered complete relief, thus mooting the individual FLSA claim, the appellate court held that using strategic Rule 68 offers to “pick off” aggrieved employee-plaintiffs would frustrate the FLSA’s collective-action process. The Third Circuit therefore remanded for the Respondent to seek conditional certification, which, if successful, would relate back to the date of the Complaint.

The Supreme Court reversed. The Court refused to decide whether the unaccepted Rule 68 offer actually mooted Respondent’s individual FLSA claim, instead simply noting that the two lower courts agreed that it did and that Respondent waived the argument. The only question, then, was whether Respondent’s suit remained justiciable based on the collective-action allegations she raised. The Court held that it did not because “the mere presence of [such] allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied.” Because Respondent’s claim was mooted before any other employees had joined, she had no “personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness.” In applying these “well-settled mootness principles,” the Court explicitly distinguished its Rule 23 precedent – on which Respondent had relied – as legally and factually inapposite. Although the Rule 68 offer prevented additional claimants from seeking relief in Respondent’s suit, the Court reasoned, those claimants “are no less able to have their claims settled or adjudicated following Respondent’s suit than if her suit had never been filed at all.”

Justice Thomas delivered the opinion for the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, and Alito joined. Justices Ginsburg, Breyer, and Sotomayor, led by Justice Kagan, delivered a spirited dissent both as to what the majority did and did not decide. The dissent did not find the distinctions between collective and class actions sufficient to warrant limiting the relation-back doctrine to traditional class actions. Indeed, to do so, the dissent explained, would allow defendants to short-circuit collective actions and frustrate the objectives of the FLSA.  The dissent also disagreed with the majority’s choice to evade ruling on the impact of an unaccepted Rule 68 offer of judgment. It considered this issue to be “inextricably intertwined” with the issue the majority did address, making both appropriate for the court’s consideration.

Justice Kagan focused her dissent on arguing that an unaccepted Rule 68 offer could never moot an individual claim. She relied upon traditional contract principles, arguing that an unaccepted offer of judgment, like any withdrawn offer, is a “legal nullity” that cannot moot a case.  She also grounded the dissent in Rule 68 itself, stressing that it permits entry of judgment, thus mooting the plaintiff’s claim, only when the offer is accepted. If the offer is not accepted, the offer is deemed withdrawn, so a live controversy does – and always will in those circumstances – remain.  The majority, as noted above, did not weigh in on this latter question, i.e., whether a case becomes moot after an unaccepted Rule 68 offer of full relief. Should the issue be brought before the Court, one can only speculate as to how a majority of the court would resolve it.

“We are disappointed in the Court’s decision, but we see this as an extremely narrow opinion that will have little effect on future FLSA cases,” said Gary F. Lynch of CARLSON LYNCH LTD., who represented Symczyk.  “Ironically, the Court closed the courthouse doors in front of Laura Symczyk on mootness grounds, despite the fact that she has never been and now never will be compensated for her stolen wages,” Lynch said. “This procedural oddity, while fundamentally unfair to Ms. Symczyk, limits the application of this opinion.”

As one commentator observed: “This 5-4 decision is best described by Justice Kagan in her dissenting opinion as ‘wrong, wrong and wrong again.’  A case where a plaintiff never accepted an employer-defendant’s offer of judgment and the majority concludes not only is her claim ‘moot,’ but anyone who may be similarly situated with a FLSA claim is also ‘moot?’ Furthermore, as Justice Kagan correctly stated, ‘the majority’s decision – founded as it is on an unfounded assumption – would have no real-world meaning or application. The decision would turn out to be the most one-off of one-offs….That is the case here.’  Justice Kagan (joined by Justices [Ruth Bader] Ginsburg, [Stephen] Breyer and [Sonia] Sotomayor) correctly conclude that today’s opinion in Genesis has virtually no practical application to the practice of law in the FLSA arena.”