Richard J. Simmons

Waiting is part of the game as Simmons gives plaintiff's lawyers time for class certification, but at a certain point he'll fight back.

A year is enough time for plaintiff's lawyers to get their ducks in a row, Simmons said, as that's when he will file a motion to deny class certification.

"I'm going to say, 'I'm tired of waiting for you,'" he said. "'I have no legal obligation to wait for you ...' I'm going to move to deny class certification and do it on my timetable, on my theories. They're often ill-prepared to deal with it. One strategic advantage is to get them on our timetable."

Simmons has been fending off class certification for big companies for years including casual fast food chain Chipotle Mexican Grill Inc.

After more than four years of litigation, a judge decertified a class because of the vast differences in the ways apprentices performed their jobs.

The plaintiffs argued many were misclassified as apprentices in order to be exempt under the Fair Labor Standards Act and collect overtime pay.

However, after combing through declarative statements, he found the plaintiffs were splitting their time between exempt and nonexempt work.

"You can't resolve it in a single trial," Simmons said. "The disparities among the class members ... are so great it requires individual assessments."

The matter is currently up for review by the 2nd Circuit Court of Appeals in New York. Scott v. Chipotle Mexican Grill Inc., 12-cv-8333 (S.D. N.Y. Mar. 29, 2017).

A similar matter last year involved a complaint over a variety of wage and hour grievances against Dignity Health that encompassed 2,337 current and former employees. Simmons won a favorable ruling from the San Bernardino County Superior Court because the plaintiffs failed to demonstrate typicality, one of the requirements for class certification. Dezan v. Dignity Health, CIVDS 1516658 (San Bernardino Super. Ct., filed Nov. 13, 2015).

Simmons said employees weren't aware of the overtime practices in other departments.

"There's people that work 12-hour shifts, others that work 18 hours, some that work nine, some people that work eight," he said.

"It's ridiculous to even contend that they can be typical of 2,300 people in 48 departments," Simmons added.

-- Arin Mikailian