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Titan of the Plaintiffs Bar: Adam Klein

Law360—Ben James

Outten & Golden LLP's Adam Klein's representation of undocumented West African immigrants in a trailblazing class and collective action, hundreds of thousands of would-be census workers pursuing race bias claims and unpaid interns seeking compensation demonstrates his unique ability to see merit in challenging and novel lawsuits other lawyers shy away from, his colleagues say.

Klein, who joined Outten & Golden in 2000, founded and built the firm's class action practice group. In the process, he's established a reputation as a visionary with a knack for identifying viable claims based on creative legal theories and throwing his weight behind groundbreaking suits.

That quality wins Klein plaudits not only from his fellow plaintiff-side lawyers, but his colleagues on the management side of the bar.

“He has long-term vision on employment issues that helps him see around corners and down the road. He can find you things that other people might not see and make them into cases, like the intern cases or the census case,” said veteran employment lawyer and Jones Day partner Fred Alvarez. “Adam has a way to spot stuff like that.” 

“He's very creative, and he sees opportunities and ideas for litigating cases that most people don't see,” added Wayne Outten, an Outten & Golden founding partner who now manages the firm.  

Klein's roots as an advocate for working people run deep, and he traces his inclination to stand up for the economically vulnerable back to his childhood in Riverhead, New York, on Long Island's north shore. The town was racially segregated, and the memory of that imbalance stayed with him, he said. 

“It was just a very odd place to grow up,” Klein said of Riverhead. “It was, in many respects, like the South, where you had sharecroppers or basically a class of people that were excluded from participation in government and the economy to a large extent. In hindsight, it always struck me as reprehensible and difficult to understand.”

Taking his law degree from Hostra's Maurice A. Deane School of Law, where Klein graduated in 1990, and going to bat for employers rather than employees just wasn't in the cards, according to Klein. 

“I never saw myself as representing companies or employers,” he said.

Klein's commitment to worker advocacy was on display in a “groundbreaking” case called Ansoumana v. Gristedes, said Cathy Ruckleshaus, general counsel of the National Employment Law Project. The minimum wage and overtime suit, filed in 2000, was brought against Gristedes Operating Corp., Duane Reade Inc., A&P and others on behalf of droves of West African immigrant delivery workers.

Lawyers say the case, prosecuted by Outten & Golden, NELP and the New York Attorney General, was among the earliest “hybrid” lawsuits that leveled Fair Labor Standards Act collective claims and state labor law class claims simultaneously, and was the first wage case in New York where a court certified both the class and collective action claims. The suit led to an $8.1 million settlement, according to Outten & Golden. 

Klein's commitment to protecting the workers was obvious throughout the matter, Ruckleshaus added.

One example of that was his attendance at class meetings held at Columbia University. Along with hundreds of workers, Klein showed up at every one, Ruckleshaus noted.

“Adam came to every single meeting,” she said. “He was just very devoted.”

Outten also said that Klein demonstrated his commitment to protecting worker-clients during the Ansoumana case. When the defense started trying to bypass the plaintiffs' attorneys and go directly to the mostly undocumented workers for statements, Klein was quick to get an injunction barring the defense from contacting the workers except through counsel and made it clear that “these people weren't to be touched,” Outten said.        
 
“This was a foundational case in my career” and in the wage-and-hour arena in general, Klein said. “So much of what we did was new.” 

The Ansoumana case was daunting in several respects: the plaintiffs had to beat back the argument that they were independent contractors, not employees, and then establish that the big-name defendants they delivered for were qualified as their employers.    

Letting the class and collective claims go forward in the same suit was significant, but the court's findings with respect to joint employer status in the case — which included “labor brokers” as well as the retail stores — was groundbreaking as well, Ruckleshaus said.

NELP needed a private firm on board to pursue the case, which included hundreds of class members, Ruckleshaus said, and Outten & Golden stepped up.  

“That's another way where Adam was sort of a hero in this case,” she said. “There were lots of legal questions that hadn't been resolved, but he was willing and able and did take it up with all of those legal risks at hand.”

Klein tipped his hat to Outten & Golden, where he was a new hire at the time the Ansoumana suit was getting underway in 2000, for backing him in pursuing the case. It didn't look like a moneymaker, but “they thought it was a righteous case,” Klein said.

Outten & Golden and Klein, as well as LatinoJustice PRLDEF and other groups, are currently pursuing a mammoth class action alleging the criminal background check screening done by the U.S. Census Bureau when picking temporary workers for the 2010 census unlawfully blocked hundreds of thousands of black and Latino applicants from employment.

“It's wildly challenging, but very interesting and rewarding,” Klein said of the census case.

The census suit, where a class was certified in July, is another example of a case Klein tackled when many other lawyers would have walked away, attorneys said.

“It was perceived as a very difficult, thorny case to bring,” said Kelly Dermody, chair of Lieff Cabraser Heimann & Bernstein LLP's employment practice. Where other attorneys may have seen a potential liability, Klein saw injustice, and fairness is one of the things he considers when deciding whether to take on a case, she added.

“Adam is fearless, and he's not easily put off by the fact that other entities — regulators or other lawyers — are shy about pursuing the issue,” Dermody said. “He continues to have a huge amount of faith that the law is a malleable instrument that can be used to help people.”

Klein pointed to a proposed class action sex bias case against Goldman Sachs & Co. as another noteworthy case that's pending on his docket. Lieff Cabraser, as well as Outten & Golden, are representing the plaintiffs in that suit.

Klein and his fellow plaintiffs' attorneys are looking to certify a class they say is made up of at least 1,762 female associates and vice presidents who were allegedly subjected to discriminatory performance review, compensation and promotion procedures. The New York federal court overseeing the case will hear arguments of class certification this month.

The Goldman Sachs case is a “cutting-edge, complex case with multiple experts on each side,” Klein noted, adding that there are very few cases that challenge performance evaluation procedures as the reason women are paid less than men.

Goldman is a sophisticated defendant, Klein added.

“They have very capable defense counsel, and substantively, it is as complex a Title VII case as you can come up with,” he said. 

Klein and Outten & Golden are also at the forefront of a wave of cases brought by unpaid interns who claim they should have been compensated. The firm represents former interns in high-profile cases at the Second Circuit involving the Hearst Corp. and Fox Entertainment Group Inc., which are expected to yield clarity on the test for whether someone is a legitimate unpaid intern or an “employee” who is protected by wage-and-hour laws.  

Klein's fellow attorneys said the intern cases were yet another testament to his foresight.

“This thread has run through his work, where he has identified something before other people do and sort of creates an energy around the issue that survives and goes far beyond the first case that he brings on it,” Dermody said.