Phil Eskenazi, Kerri Sakaue Score Win for Victoria’s Secret in Wage and Hour Class Action

Partner Phil Eskenazi and Associate Kerri Sakaue notched a win when a U.S. district judge granted Victoria's Secret Stores' (VS) motion for judgment on a former employee's proposed class claims on behalf of more than 30,000 current and former California VS employees that VS had failed to pay for mandatory pre-shift COVID-19 screenings across its California stores. VS argued that an earlier settlement release addressing alleged pre-shift off-the-clock work but did not reference COVID screenings, nonetheless, released the instant claims. Plaintiff argued in opposition that her temperature check claims could not have been released in the prior settlement because the other lawsuit was filed two years before the pandemic began and the release did not specifically reference COVID temperature checks as would purportedly be required under the "identical factual predicate" doctrine governing class releases in the Ninth Circuit. (Plaintiff further argued that the prior release only ran through May 2021 so she could still represent a class after that date. And VS countered that Plaintiff lacked standing to do so because her employment terminated before the end of the class period.)

The district court characterized the chief inquiry as a novel issue: "whether factual allegations that were not asserted specifically within a previous complaint were released because those allegations fit within a broader category of released claims in an otherwise unobjectionable settlement agreement." The district court ultimately sided with VS and granted the motion for judgment as to those class claims. While the prior settlement release did not cover the entirety of the instant proposed class period, the district court also agreed with VS that since Plaintiff stopped working for VS before the end of the settlement release period, Plaintiff could not represent any VS employees post settlement.

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