Mark D. Kemple

Kemple secured a precedent-setting decision on behalf of fast food client KFC.

In King v. Great American Chicken Corp. Inc. 903 F.3d 875 (9th Cir., filed Sept. 6, 2018), Kentucky Fried Chicken franchisee Great American Chicken Corp. Inc. faced a putative class action alleging violations of California wage and hour laws.

The company removed the action to federal court under the Class Action Fairness Act. The law permits removal of class actions from state to federal court, but includes a "local controversy" exception that forbids removal where two-thirds or more of the proposed class resides in the state where the action was filed.

The plaintiff sought discovery to prove t more than two-thirds of the putative class members were California citizens at the time of removal. The district court granted the motion to remand.

A 9th U.S. Circuit Court of Appeals then took up the case and vacated the ruling in September.

"In King, the 9th Circuit agreed with my interpretation of the law, and held that mere employment in California at some point in the past four years, plus assumed residence in the state at that time, is not enough to establish citizenship at the time of removal," Kemple said.

"Importantly, the 9th Circuit also agreed with me that a plaintiff seeking to remand based on the local controversy exception must establish both U.S. citizenship and forum state citizenship for two-thirds of the class to fit within the exception," he added. "A contrary decision would have effectively ended the removal of wage/hour class actions to federal court."

The legal landscape in California can be confusing for employers in classifying workers as independent contractors or employees, and the rules governing the Private Attorney General Act, Kemple said.

"More than ever, California employers need assistance in these areas, including on issues that they could never have seen coming," he said.

-- Jennifer Chung Klam