Todd B. Scherwin 

Todd B. Scherwin is the regional managing partner of Fisher & Phillips LLP’s offices in Los Angeles and Woodland Hills. He is the co-founder of the firm’s sports industry team, a group composed of former collegiate and professional athletes who advise and defend sports employers regarding compliance issues and claims before governmental, regulatory and administrative authorities. He joined the national employment law firm in 2005.

“I played baseball in college,” said Scherwin, who was an outfielder for the UC San Diego’s NCAA team. He and law partner Adam F. Sloustcher, who played major league soccer, formed the 35-attorney group. Scherwin has a pro football team as a client, but keeps that work under wraps. “Our sports clients like to keep our work out of the media spotlight.”

Scherwin said he gravitated toward employment law work early. “It offers an interesting mix of legal theories and real-world situations. I haven’t looked back.”

He continues to represent an Encino-based Mercedes-Benz dealership in a long-running employment classification case that has twice been before the U.S. Supreme Court. Both times, the high court reversed a 9th U.S. Circuit Court of Appeals ruling. The matter involves the exempt status of a group of dealership employees and their entitlement to overtime pay and other rights under the California Labor Code. In its most recent visit to the high court, the justices ruled 5-4 in Scherwin’s client’s favor that the Encino dealership’s service advisors are exempt from overtime pay. Encino Motorcars LLC v. Navarro, 138 S.Ct. 1134 (decided April 2, 2018).

“It’s the case that will never die,” said Scherwin, who sat at the counsel table with the prominent Supreme Court litigator Paul D. Clement, who argued for the defense. “He gave a master class in appellate argument.”

The first time up, the high court sent the case back to the 9th Circuit with instructions to rethink the matter without relying on a Department of Labor ruling that service employees are not exempt. The 9th Circuit stuck to its earlier position, so on the second go-round, the high court again reversed. This time it added an important pro-employer interpretation of wage-and-hour law that made it easier to define workers as nonexempt.

Now back in California, the plaintiffs are in individual arbitrations and their attorney has recast their complaint as a PAGA action against the dealership’s new owners.

Relating the case metaphorically to his sports law practice, Scherwin said, “This has been a sprint, followed by a marathon, followed by a rain delay, followed by another marathon.”

—John Roemer