Mark D. Kemple

Kemple is national co-chair of Greenberg Traurig’s labor and employment class and collective action practice and the leader of its Southern California labor and employment practice. He has litigated major precedent setting class action disputes involving wage and hour, false advertising and unfair competition claims.

“I’m a big proponent of procedure,” he said of his approach to defense strategy. That worked to his advantage in a major potential class action by workers against Wal-Mart Stores Inc. over claims that stemmed from its drug testing policies following workplace injuries. The plaintiffs’ complaint listed 12 counts, including for unlawful medical inquiry and disability discrimination in alleged violation of the Fair Housing and Employment Act and invasion of privacy in alleged violation of Article I of the California Constitution.

What proved to be the winning issue involved removal questions and was an extension of Kemple’s landmark win in a 2013 case, Roth v. Hollywood Presbyterian Medical Center, in which the 9th U.S. Circuit Court of Appeals reversed decades of precedent and changed the rules for the timing of removal. In the Wal-Mart matter, Kemple successfully argued to the 9th Circuit that U.S. District Judge Manuel Real of Los Angeles improperly remanded the case to state court.

“The judge said we had waived the right to removal [to federal court] by having invoked the mechanisms of state court. But no, it doesn’t work that way,” Kemple said.

The circuit panel held that Real erred by shipping the case back to state court on his own initiative, overstepping his statutory authority and improperly interpreting Kemple’s legal maneuvers in prior state court proceedings.

Real wrongly found that Wal-Mart’s state court actions constituted a forfeiture of the right to bring the case under federal jurisdiction, the panel said. After the case went back to Real, he granted Kemple’s dismissal motion with prejudice, ending the action. Kenny v. Wal-Mart Stores Inc., 5:17-cv-00967 (9th Cir. Feb. 1, 2018).

The chief lesson of the case is that invocation of state court procedures, including a request for dispositive relief, cannot waive a right to remove a case, Kemple said. “The real action was at the court of appeals. Our game plan in class or PAGA actions is almost always to spend a lot of time on venue or removal issues. It can be a very effective tool, and those paths need to be charted to position the case from the start in a way that is best for the client.”

— John Roemer