Appellate

Whether advocating for workers in appeals of our own cases or joining co-counsel to advance theirs, our Appellate Practice Group leverages decades of collective experience in appellate advocacy and employment litigation to help achieve justice for our clients.

Outten & Golden’s appellate team brings fresh perspectives for employee plaintiffs who have won, and lost at trial.  

Over the past 25 years, our team has litigated, tried, and settled a vast array of employment and related civil rights cases, while also developed deep experience around the next step of litigation, the appeal. We use this experience, and our deep understanding of the unique skills and approaches that apply to appellate employment litigation, to bring fresh perspectives that help determine the best path to victory.

Due to these unique capabilities, we are frequently called on to assess the impact of judicial opinions, and assist other lawyers on employment-related appeals – whether as lead appellate counsel, co-counsel, or counsel for amicus curiae. This experience spans intermediate appellate courts and supreme courts across the nation, and both written and oral advocacy.

A significant track record of protecting and advancing employees’ rights. 

Outten & Golden’s successful appellate advocacy for workers spans every level of the judiciary, in every aspect of employment rights, including discrimination, harassment, and retaliation; individual and class actions; substantive and procedural issues; wage and hour issues; California’s Private Attorneys General Act; and countless other issues. Select examples include: 

• Perez v. Discover Bank (9th Cir. 2022): We successfully defended our trial court victory on the issue of forced arbitration of a DACA (“Deferred Action for Childhood Arrivals”) holder’s alienage and immigration-based lending discrimination claims under 42 U.S.C. § 1981 and California’s Unruh Civil Rights Act.
• Stoe v. Department of Justice(D.C. Cir. 2020): We won reversal of summary judgment in an individual employment discrimination case where our client challenged the federal government’s discriminatory refusal to promote her because of her gender. Following remand to the district court, the case was tried to a jury which ruled in Ms. Stoe’s favor. In its opinion, the D.C. Circuit clarified the standard regarding the quantity and quality of evidence a plaintiff is required to put forth to defeat summary judgment and reach a jury. 
• Scott v. Chipotle Mexican Grill, Inc. (2d Cir. 2020): Our advocacy resulted in a Second Circuit opinion setting a significant new worker-friendly standard for FLSA actions. After the district court decertified the FLSA collective of over 500 Chipotle restaurant Apprentices alleging misclassification claims, we won reversal, allowing the collective to proceed toward trial.
• Lucente v. County of Suffolk (2d Cir. 2020): We won reversal of a district court’s dismissal of sexual harassment claims brought by female inmates at a correctional facility in Suffolk County, NY. This appeal advanced the law in establishing that municipal liability under 42 U.S.C. § 1983 (Monell claims) can be proven by departmental knowledge of a single officer’s misconduct.
• Long v. SEPTA (3d Cir. 2018):We won reversal of the district court’s dismissal of a Fair Credit Reporting Act (“FCRA”) claim that Plaintiffs lacked standing to challenge SEPTA’s alleged failure to provide applicants with copies of their background checks before denying them employment because of their criminal history, in violation of the FCRA. 
• Menocal v. GEO Group (10th Cir. 2018): We defeated GEO’s appeal of the district court’s class certification order on behalf of immigrant detainees asserting Trafficking Victims Protection Act (TVPA) and unjust enrichment claims based on GEO’s policies requiring them to work for $1 per day or nothing at all at privately-owned immigration detention facilities.
• Marsh v. J. Alexander’s, LLC (9th Cir. en banc 2018): Co-counsel invited us to help lead the appeal of multiple district court orders construing the FLSA against the plaintiff waitresses and restaurant workers, and allowing the defendants to pay them at a sub-minimum wage tip rate for non-tip producing work like cleaning floors, toilets, and dishes. After losing the appeal 2-1, we and won the appeal en banc. The Ninth Circuit adopted our argument that the relevant DOL guidance and interpretation were entitled to deference and should be read to protect the workers’ rights. 
• Chen-Oster v. Goldman Sachs (2d Cir. 2017 and 2018): After defeating a motion to dismiss and later winning class certification in the district court, we defeated Goldman’s numerous appellate motions. This class action gender discrimination case ultimately resulted in the third largest gender bias settlement in U.S. history.
• Zaborowski v. MHN Governmental Services (9th Cir. 2014): After defeating a motion to compel arbitration on unconscionability grounds, we successfully defended the order on appeal.  This victory paved the way for a nationwide class settlement on behalf of military family life consultants who provided counseling and advocacy for service members, based on their independent contractor and overtime misclassification claims under the FLSA and state laws.
• Kemp v. Accurate (Cal. Ct. App. 2022): We prevailed on dueling cross-appeals, winning an issue of first impression: whether California law prohibits a consumer credit reporting company from disclosing a criminal conviction to a prospective employer over seven years after the date of parole, as defined in the California Investigative Consumer Reporting Agencies Act (ICRAA) and the California Consumer Credit Reporting Agencies Act (CCRAA), as well as a second issue of whether the ICRAA is preempted by federal law.
• Moniz v. Adecco (Cal. Ct. App. 2021): This case made important law in California, with the court adopting our arguments by establishing the “fair, reasonable, and adequate” standard for PAGA settlements and holding that civil penalties must be divided fairly among aggrieved employees.

Amicus Briefs

At the heart of the nationwide community of workers’ rights advocates, Outten & Golden often works in coalition with nonprofits and fellow plaintiffs’ attorneys to author amicus briefs to help guide courts in reaching the right result in important cases. Our work has helped to successfully shape the law in the U.S. Supreme Court and countless federal and state appellate courts. Select examples include:

• United States ex rel. Schutte v. SuperValu, Inc.(S.Ct. 2023): We represented amicus curiae Taxpayers Against Fraud Education Fund (now The Anti-Fraud Coalition) before the U.S. Supreme Court in arguing that a defendant’s subjective belief that it is committing fraud is relevant to determining whether that defendant acted knowingly under the False Claims Act.
• Department of Homeland Security v. Regents of the University of California(S.Ct. 2020): We argued, on behalf of academic scholars, that the Trump Administration’s decision to rescind the DACA program was arbitrary and capricious under the Administrative Procedure Act and/or violated the equal protection guarantee of the Due Process Clause.
• New Prime, Inc. v. Oliveira (S. Ct. 2018) We argued, on behalf of statutory construction scholars, that the FAA’s reference to “contracts of employment” extends to a broad scope of work agreements.
• Vidal v. Advanced Care Staffing, LLC(2d Cir. 2023): We represented human rights and labor rights organizations as amicus curiae in support of a nurse allegedly trafficked from the Philippines by a staffing agency using deceptive tactics that caused him to sign an exploitative and illegal employment contract.
• Billie, et al. v. Coverall North America (2d Cir. 2023): We argued, on behalf of the National Employment Lawyers Association and the National Employment Law Project, that courts should allow litigation in court when an employer has defaulted in paying arbitration fees.
• Restaurant Law Center v. City of New York(2d Cir. 2022, S.D.N.Y. 2021): We represented the National Employment Law Project and other workers’ rights organizations as amicus curiae in support of New York City’s “Just Cause Laws,” which require fast food restaurants to implement progressive discipline policies, and have valid reasons for discharging employees.
• Canaday v. Anthem Companies, Inc.(6th Cir. 2021): We represented amicus curiae The Center for Litigation and Courts in arguing that the district court had personal jurisdiction over Anthem with respect to nonresident employees who filed written consents to join the Fair Labor Standards Act action brought by plaintiff-appellants.
• Kassman v. KPMG (2d Cir. 2018): We represented a consortium of civil rights organizations in arguing that nationwide Title VII cases are not subject to heightened class certification standards under Rule 23.
• HomeAway.com v. City of Santa Monica, No. 18-55367 (9th Cir. 2018) We represented law professors in arguing for limited scope of Communications Decency Act immunity in the context of a municipal ordinance regulating online rentals.
• Mohamed v. Uber Technologies, Inc. (9th Cir. 2016) We represented amici curiae NELA, NELP, Towards Justice, and National Association of Consumer Advocates in challenging unconscionability and unfairness in Uber’s arbitration agreement.
• Meyer v. Kalanick (Uber) (2d Cir. 2016) We represented Public Justice, P.C. as amicus curiae in arguing that online and mobile contracts require conspicuous notice and unambiguous assent.
• Sheila LaRose v. King County, Washington, No. 56455-6-II (Div. 2, 2023): We represented the National Women’s Law Center and the Washington Employment Lawyers Association, as amici curiae, in addressing Washington state law protections against work-related sexual harassment by third parties that occurs outside an employee’s physical place of employment, as well as to whom an employee must report harassment to impute knowledge and liability to an employer.
• Uribe v. Crown Building Maintenance. Co. (Cal. Ct. App. 2021) We represented the California Employment Lawyers Association (CELA) in arguing that courts should consider plaintiff-shopping and reverse auction markers in reviewing PAGA settlements in the context of overlapping PAGA litigation.

(*Prior results do not guarantee a similar outcome.)