Lawyers Debate Comcast Impact in Duane Reade, Rite Aid Cases Carlyn Kolker
July 10, 2013

An argument in federal court in Manhattan on Tuesday provided a window into how trial courts are grappling with the impact of the U.S. Supreme Court’s recent ruling in Comcast v. Behrend on employment litigation.

Plaintiffs and defendants are sparring over the reach of the Comcast decision, in which the high court limited the ability of plaintiffs to sue in class actions, ruling that plaintiffs had to show common damage calculations to be certified as a class.

While the Comcast case was an antitrust action involving a dispute over cable subscriptions, corporate defendants have asked judges to apply the high court’s reasoning in other areas, such as wage-and-hour cases. Workers’ lawyers have responded that the case does not apply in a wage-and-hour context.

That tension was on display in U.S. District Judge Paul Oetken’s courtroom in an argument over whether assistant store managers suing Duane Reade Inc. for alleged wage law violations could sue as a class.

Oetken in March had certified a class action under New York state’s labor law. He had said the proposed class of about 750 current and former assistant store managers, who claimed the drug store misclassified them as exempt from overtime laws, did meet the legal standards to sue as a group.

A week later the Supreme Court issued its decision in Comcast. In light of that, Duane Reade asked Oetken to reconsider his ruling. Duane Reade’s motion was the subject of the hearing on Wednesday.


“The question I have in mind, and this is being worked out in district courts and some appellate courts, is to what extent does the Comcast decision represent a ruling that applies outside the antitrust context? ” Oetken asked at the hearing.
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“Would there be any wage-and-hour cases that would survive under that analysis? ” Oetken asked Benson.

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Adam Klein, attorney from Outten & Golden who represents the plaintiffs, cited the 9th Circuit Court of Appeals’ decision in Leyva v. Medline, which directed a lower court to certify a class of workers even in light of the Comcast decision.


Also on Tuesday, Oetken held a separate hearing over whether store managers at Rite Aid should be allowed to sue as a group.

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For Mani Jacob et al: Adam Klein, Justin Swartz, Rachel Bien, Sally Abrahamson, Molly Brooks, Paul W. Mollica, Lewis Steel and Michael Scimone of Outten & Golden; Seth Lesser, Fran Rudich and Michael Palitz of Klafter, Olsen & Lesser, and Dana Gottlieb and Jeffrey Gottlieb of Gottlieb & Associates.

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