Mark D. Kemple

Kemple is co-chair of Greenberg Traurig's labor & employment class and collective action practice. He leads the firm's Southern California labor & employment practice. He defends clients such as Walmart Inc., Marriott International Inc., McDonald's Corp., Wendy's International LLC, Quicken Loans LLC, West Marine and Great American Chicken Corp., known as Kentucky Fried Chicken.

In mid-June he remained working remotely. "Haven't seen the office in three months," he said. "I love not having to commute. We do foresee that employers are going to approach life differently. With telecommuting, they'll see real cost savings in terms of overhead, but there will be issues regarding levels of control and how to assess productivity. Business could become more of a meritocracy. I don't think we'll get any sense of normalcy until at least next summer."

Kemple represented Wendy's and obtained dismissal of a significant nationwide potential class action in which the plaintiffs asserted Americans with Disabilities Act violations stemming from allegations that some franchises discriminated against the visually impaired by being open only for drive-through service during late night hours. Davis v. Wendy's International LLC, 1:19-cv-04003 (N.D. Ill., filed June 14, 2019).

"The plaintiffs argued that Wendy's drive-through-only policy discriminated against the visually impaired, and that argument had some superficial appeal," Kemple said, noting that similar suits have been tried in numerous cases nationwide. His winning argument for dismissal of the suit pointed out that while the ADA forbids discrimination on the basis of a disability, the fact is that Wendy's drive-through is unavailable to any pedestrian, not just the visually impaired. "Maybe you're too young to drive, or you have no vehicle," he said. "The court accepted our argument across the board."

As U.S. District Judge Marvin E. Aspen of Chicago wrote, "Wendy's policy affects non-disabled and disabled pedestrians identically. ...It is not Davis' disability that precludes her from obtaining food from Wendy's, but her status as a pedestrian."

Added Kemple, "It's common sense, but this is the first case to adopt our analysis and reject the plaintiff's theory as a matter of law."

In a different case over wage & hour issues, early maneuvering turned on whether remand to state court is warranted. Kemple lost the argument at the 9th U.S. Circuit Court of Appeals and is petitioning for en banc review. The question is whether the plaintiff met her burden to establish that more than one-third of all potential class members were citizens of California by providing evidence of their last-known mailing address. Adams v. West Marine Products Inc., 20-15444 (9th Cir., opinion filed May 13, 2020).

"Residence does not establish citizenship," Kemple insists. "The panel's opinion would result in significant changes to removal standards."

-- John Roemer