Paul S. Cowie

SAN FRANCISCO AND MENLO PARK - Paul S. Cowie is a partner in the Sheppard Mullin Richter & Hampton LLP labor and employment group, where he oversees a team of 33 lawyers defending class actions and PAGA claims.

Business is up. “As we come out of the pandemic, people just continue to file more and more cases,” he said.

A trend toward plaintiff lawyers taking unreasonable positions has decreased settlements and sent more cases to court, Cowie said.

“In one case, an offer in compromise of $998,000 went up to $2.7 million when we got into mediation,” he said. “It didn’t make sense, but we are seeing litigation positions becoming more polarized, with plaintiffs engaged in regressive bargaining. In this case, we were ready to negotiate in good faith, but when the demand increased, we went to court and won a motion for judgment on the pleadings. The client could have settled for a significant amount, but got zero.”

Cowie added: “I’m used to seeing high opening demands, but now we’re seeing multiples of what’s reasonable. It feels like the plaintiff bar is going for broke in the earlier stages of litigation.”

Last August, U.S. District Judge Virginia A. Phillips of Los Angeles granted summary judgment to Cowie’s trucking company client in a potential class action over claims that it failed to provide adequate meal and rest breaks for drivers. Cowie successfully argued that a Federal Motor Carrier Safety Administration determination issued in 2018 preempts the claims asserted. Valiente v. Swift Transportation Co. of Arizona, 0:21-cv-55456 (C.D. Cal., filed May 5, 2021).

Cowie will argue the plaintiff’s appeal this summer before a 9th U.S. Circuit Court of Appeals panel.

“This is a big one,” Cowie said. “If the circuit affirms, it will kill the meal and rest break claims that plague the trucking industry and result in numerous class actions.”

Some outcomes take much longer. After eight years of litigation, Cowie prevailed in August 2021 when a state appellate panel affirmed denial of class certification in a case involving a company’s allegedly unlawful meal and rest break policies. Altiery v. Granite Rock Co., H045263 (6th DCA, op. filed Aug. 27, 2021).

“The overarching issue is that we demonstrated a lack of evidence that the employee’s claims applied to the class,” Cowie said. He’d first persuaded a trial court judge that the evidence defeated commonality and showed the plaintiff was an inadequate representative. The appellate panel relied on Cowie’s oral arguments in affirming.

“The plaintiff felt he was treated differently from others, and at the deposition I got him to lean into that,” Cowie said. “So the question became: how does being treated differently establish a common basis for a class action?”

--John Roemer