Since the Supreme Court’s decisions in Iqbal and Twombly, which seemed to require greater “heft” in pleadings than the more liberal standard that went before, class action defense lawyers (and non-class action defenders, for that matter) have been testing the value of those decisions, with inconsistent results.  Some courts have imposed little more burden on plaintiffs than they had before the decisions, while other courts have been more rigorous.

Chalk up one more for the defense side.  In Mell v. GNC Corp., pending in the Western District of Pennsylvania, the district court held on November 9 (PDF) that plaintiffs had failed to plead their off-the-clock claims with sufficient detail.  Like many such complaints, the Mell complaint stated where and when the named plaintiffs worked for GNC, that they were classified as nonexempt, but were shortchanged because

GNC had a policy or practice of requiring or allowing Plaintiffs and other members of the putative class to work “off the clock” during lunch periods, scheduled overtime, and “additional hours or shifts.”

The court held that these allegations were not sufficient to meet the Iqbal/Twombly standard, because

we cannot even infer from the Amended Complaint that there was a “mere possibility of misconduct” unless we accept as a “fact” that Defendants had a policy or practice of requiring their employees to work “off the clock.”

That’s interesting, because other courts have held that the allegation of such a policy is sufficient to pass muster.

The court went on to suggest the sorts of things that should be included in the complaint to meet the new requirements:

who advised them of this policy, when were told they were required to work “off the clock” or what work consisted of, how the policy was imposed, approximately how many hours each week they worked without being paid, and whether either Plaintiff or any other GNC employee complained to a supervisor about the practice and, if so, what GNC’s response was. Plaintiffs provide no facts about the timekeeping practices of GNC, for instance, was there literally a time clock that employees used to record their time or was it simply understood that regular working hours would be from, say, 10 a.m. to 6 p.m.?

Requiring plaintiffs to plead such facts initially should not deter any legitimate complaints, but would be a boon to defendants trying to understand the allegations against them.

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.