Todd B. Scherwin

Scherwin is defending Heartland Payment Systems Inc., a major credit card processing services provider, in a potential class action by salespeople alleging wage and hour violations.

The case, in which Scherwin won an important decision from a state appellate panel in November 2018, highlights a trend in employment law, Scherwin said.

"With courts increasingly favoring arbitration, a lot more plaintiffs firms are jockeying for position in the ever scarcer number of class actions, and until now there hadn't been much case law on their efforts to intervene in existing cases," he said.

After Robin Edwards filed a class action against the company on claims that it failed to pay her minimum wage and to pay wages on termination, as well as other claims, the case moved toward a proposed class settlement.

At that point, Edwards amended her complaint to add overtime claims asserted by fellow Heartland employees Jaime Torres and Jorge Martinez. A Los Angeles County Superior Court judge denied the intervention motion. Torres and Martinez appealed.

"They had no standing to intervene. The proper course was for them to be objectors to the settlement," Scherwin said. The appellate panel agreed, holding that the would-be interveners sought only to challenge the adequacy of the settlement with Edwards.

The panel ruled th remedy for that was to opt out and fully preserve their own causes of action. Edwards v. Heartland Payment Systems Inc., 2018 DJDAR 11366 (2nd District Court of Appeal, published Nov. 30, 2018).

Scherwin, who has shepherded the defense from the pretrial stage through the appeal, is currently in mediation over a final settlement.

Scherwin also successfully defended Waste Management Inc. in a suit by a truck driver fired after more than one accident who alleged eight claims including harassment, discrimination and retaliation.

"It boiled down to whether there was good cause for his termination," Scherwin said. "The union backed a last chance agreement for the driver, and after his next accident the company terminated him. But could he go back to claim alleged discrimination prior to his signing the last chance agreement? We argued he'd waived those claims."

"In December, the judge agreed." Perez v. Waste Management Inc., BC627109 (L.A. Super. Ct., filed July 14, 2016).

-- John Roemer