Mark D. KempleShareholder email@example.com
Mark D. Kemple has broad trial experience in many areas of the law, including employment class and individual litigation, consumer class litigation, false advertising, and unfair competition, where he focuses on the defense of wage/hour class actions and individual employment claims. He is Co-Chair of the firm’s Labor & Employment Wage & Hour Class and Collective Action Litigation practice and leads the Southern California Labor & Employment Practice. Mark has handled disputes for companies of all sizes, and has tried numerous lawsuits and arbitrations throughout the United States. He has argued appeals in three federal circuits and several state courts of appeal, including in the California Supreme Court.
- Employment and consumer class actions
- Wage & Hour class and individual claims
- Commercial litigation
- Fortune 50 Retailer.
- Represented Appellant before a federal circuit and obtained holding that the district court exceeded its statutory authority in remanding sua sponte based on a non-jurisdictional defect, and that defendant’s response to state court pleading did not waive its right to remove the action to federal court. Kenny v. Wal-Mart Stores, Inc., 2018 WL 650998. Link to appellate argument:
- Roth v. CHA Hollywood Medical Center, L.P., 720 F.3d 1121 (9th Cir. June 27, 2013), Case No. 13-55771
- Represented Appellant in case of first impression before a federal circuit concerning federal court’s removal jurisdiction under 28 U.S.C. sections 1441 and 1446, which reversed decades of lower court decisions and held that a defendant may remove at any time (not within distinct 30-day windows) based on facts uncovered through its own investigation.
- Hawkins v. TACA Int'l Airlines S.A. (2014) 223 Cal. App. 4th 466, 478-7, reh’g denied, (Feb. 18, 2014), review denied (May 14, 2014)
- Defined pleading requirements for statutory claims, including Labor Code section 2810, and held that, like federal law (Iqbal/Twombly), plaintiffs do not satisfy their pleading burden by "parroting" the statutory elements of the claim; obtained affirmance of dismissal on the pleadings of all claims with prejudice.
- Ongoing defense of California and Nationwide class and collective actions on behalf of Abercrombie & Fitch family of companies in multiple putative class actions
- Ongoing defense in putative California class and nationwide collective action seeking unpaid wages under California law and the FLSA premised on the core contention that employees were not properly compensated for pre-shift activities involving whether the employee should report for work and finding shift replacements.
- Ongoing defense in putative California class action alleging claims for unpaid reporting time pay, failure to pay wages at termination, failure issue compliant wage statements, and violations of California’s Unfair Competition Law.
- Ongoing defense in putative California class action alleging claims for unpaid reporting time pay, failure to pay wages at termination, failure to issue compliant wage statements, and violations of California’s Unfair Competition Law.
- Took over as counsel post- class certification of 66,000 class members—all non-exempt, store associates in California—asserting unreimbursed business expenses for “uniforms,” forced patronage, and a series of derivative claims under the California Labor Code, California’s Unfair Competition Law, and PAGA.
- Took over as counsel in nationwide (excluding California) FLSA putative collective action of non-exempt store associates alleging minimum wage violations stemming from unreimbursed business expenses for “uniforms,” as well as derivative state law claims under Massachusetts, New York, and Florida law.
- Global airline service company defeats individual claims at pleading stage
- Obtained dismissal of all claims without leave to amend at the pleading stage, including claims alleging wrongful termination, gender discrimination, workplace harassment, disability discrimination, retaliation, failure to prevent discrimination, harassment, and retaliation, and loss of consortium.
- Obtained dismissal of all claims without leave to amend at the pleading stage, including claims alleging wrongful constructive termination, racial/national origin harassment, disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, failure to prevent harassment, discrimination and retaliation, and intentional infliction of emotional distress.
- Obtained dismissal of all claims without leave to amend at the pleading stage, including claims alleging retaliation, discrimination, wrongful termination, and sexual harassment.
- National Hotel Chain defeats class and individual claims at pleading stage
- Wage-and-hour case where half the claims were dismissed with prejudice at pleading stage, and remaining claims were voluntarily dismissed with prejudice the same day that plaintiff revealed at deposition that she had no factual bases for allegations.
- National Marine Retailer defeats class and individual claims
- Hybrid action alleging panoply of state and federal FLSA wage hour claims. Courts holds PAGA action cannot proceed in federal court absent class certification. Taylor v. W. Marine Products, Inc., C 13-04916 WHA, 2014 WL 1248162, at *2-3 (N.D. Cal. Mar. 26, 2014). Motion to certify class denied. Remaining action settled on very favorable terms shortly thereafter.
- KinderCare defeats pay card class action in its entirety at the pleading stage
- Panoply of claims pertaining to use of pay cards in lieu of live checks/direct deposit. Obtained dismissal of entire action on second 12b6 motion. Judgment entered in favor of client.
- National Restaurant Chain defeats pay card class action
- Panoply of claims pertaining to use of pay cards in lieu of live checks/direct deposit. Entire action dismissed with prejudice.
- Global travel retailer and restauranteur defeats individual claims at pleading stage
- Obtained dismissal of all claims without leave to amend at the pleading stage, including claims alleging retaliation, discrimination, wrongful termination, and sexual harassment. Vizcaino v. Areas, USA Inc., 2015 WL 13573816 (C.D. Cal. Apr. 17, 2015)
- Successful defense of large logistics/trucking company on employee and independent contractor claims
- Defeated and/or settlement panoply of wage/hour claims brought by employees and independent contractor in multiple putative class action lawsuits
- Successful defense of large retailer in reimbursement claims brought on behalf of putative class
- Wage hour claims arising from alleged failure to reimburse for mileage. Settled on class wide basis after partial grant of demurrers.
- National restaurant chain defeats motion for class certification, obtains dismissal of all claims
- Successfully defended against putative class brought by current and former exempt employees seeking unpaid wages, and civil and statutory penalties for alleged wage and hour violations; obtained dismissal of class and dismissal of representative PAGA claim on ground that the "notice" provided to the State was insufficient notice to exhaust the preconditions to filing suit, and ruling of first impression that Labor Code section 1174 does not create a private right of action.
- Successful defense one of the largest clinical laboratory on wage hour class action
- Defeated class certification of wage-and-hour claims and obtained class wide release on very favorable terms. Handled and resolved on very favorable terms two class actions brought by current and former exempt employees seeking unpaid wages, and civil and statutory penalties for alleged wage and hour violations.
- Successful defense of trucking company in multiple putative class actions and PAGA actions
- Several of these actions have been resolved; others are ongoing.
- National health club chain successfully defends against wage/hour class action.
- Successfully defended against putative class action seeking unpaid wages, and civil and statutory penalties for alleged wage and hour violations.
- National restaurant chain defeats class certification in each of three related actions
- Defeated class certifications in each of three actions involving of 18,000 California restaurant workers, on alleges wage/hour violations (meal/rest period, overtime, off the clock, inaccurate wage statements, failure to reimburse, PAGA).
- National Food Chain defeats wage/hour class action
- Obtained rulings dismissing entire action with prejudice, on claim that employer improperly calculated overtime wages.
- National Food Chain defeats class certification of 45,000 employees in wage/hour action°
- Achieved a significant victory for McDonald's Corporation in this putative class action alleging failure to permit meal and rest breaks, unpaid waiting time penalties, and violation of itemized wage statement provisions in California.
- National Food Chain successfully defends against putative class of 9,000 in wage/hour action
- After obtaining repeat orders on pleadings dismissing of individual and class claims, obtained preliminary approval of very favorable settlement with class-wide release of all related claims, including collective action claims under FLSA.
- National Food Chain obtains favorable class-wide settlement in California°
- Represented Boston Market Corporation in a putative class action involving 6,200 non-exempt restaurant workers in California.Boston Market obtains favorable settlement in putative class action alleging wage and hour violations°
- Represented Boston Market Restaurants in a putative class action involving all restaurant workers classified as exempt, for alleged failure to pay overtime, to permit meal and rest breaks, unpaid off-the-clock work, and unpaid waiting time penalties.
- National retail store resolves putative class action in federal court involving management overtime°
- Provided defense to a national retail store in a putative class action concerning management overtime dispute originally filed in state court.
- National Communications Provider defeats class certification in putative class action alleging multiple violations of California Family Rights Act et al.°
- Represented client in a putative class action alleging that it violated the California Family Rights Act ("CFRA"), a California statute similar to the federal Family and Medical Leave Act ("FMLA"), in numerous ways and seeking to recover compensatory damages (including back pay and damages for emotional distress), punitive damages, and reinstatement of all employees who were discharged in the last four years due to absences that would have been protected by the CFRA if client had complied with the CFRA.
- Fortune 50 Retailer, defeats class and individual claims at pleading stage
- Putative class action involving privacy issues relating to drug testing. Entire action, including class allegations, dismissed at the pleading stage without leave to amend.
- National Food Chain defeats certification of class on consumer claims
- Successfully defeated class certification on claims that client falsely represented that certain of its food offerings are vegetarian.
- Successfully defended one of the largest clinical laboratory networks in the world on health and safety claims
- Successfully defended against multi-plaintiff action alleging hazardous work environment, unsafe work conditions and unfair competition.
- National grocery chain defeats class certification in benefits dispute arising from grocery workers strike
- Defeated certification of class of 4500 striking employees, and then defeated remaining claims on the merits.
- National Retailer obtains favorable class-wide settlement in unfair competition and false advertising action°
- Provided defense to client in putative class action involving all California customers within the past four years, alleging that advertised “regular” price from which discounts were shown was misleading; class defeated and action dismissed in its entirety.
- Defended nation’slargest grower of herbs in action alleging it falsely represented products to be organic despite USDA Organic certification
- Defended client against mislabeling claims in Court of Appeal and California Supreme Court in action involving federal preemption.
- National Restaurant Chain obtains complete defense verdict in federal jury
- Seven-day jury trial resulted in a total defense verdict in case involving claims of harassment and discrimination (sexual orientation and gender), failure to prevent harassment, constructive discharge, wrongful termination, and intentional infliction of emotional distress.
- Defense of several matters on behalf of worldwide provider of airplane catering services
- Currently defending case brought by 15 plaintiffs alleging unlawful language policy, as well as harassment and discrimination based on national origin.
- Successfully represented in case alleging individual claims of discrimination based on disability and religion, as well as claims of non-compliant wage statements brought on behalf of all aggrieved California employees.
- Successfully represented in case brought by employee against employer and supervisor based on claims of assault, battery, sexual harassment, sex discrimination, and intentional infliction of emotional distress.
- Successfully represented in case brought by former employee against employer and supervisor based on claims of disability discrimination and harassment, retaliation, failure to accommodate disability, interference with disability leave, and wrongful termination.
- Successfully represented in case brought by former employee based on claims of wrongful constructive termination in violation of public policy, racial/national origin harassment, disability discrimination, failure to accommodate, retaliation, and intentional infliction of emotional distress.Matter removed to federal court and dismissed with prejudice at the pleading stage.
- Successfully represented of one of the largest clinical laboratory networks in the world
- Successfully defended client in two-plaintiff case involving allegations of discrimination, defamation and unfair competition.
- Obtained dismissal with prejudiceof all claims made against nationalairport vendor
- All claims, including retaliation, gender discrimination, wrongful termination, and sexual harassment, dismissed at the pleading stage without leave to amend.
- Defense of Cryogenic Freezing Business against claims of senior officers.
- Successful defense of sexual harassment and gender discrimination claims.
- Successfully defense against whistleblower and wrongful termination action.
- Defense of large national entertainment and booking company
- Obtained dismissal with prejudice after successfully pleading challenges.
- Successful defense of age discrimination and wrongful termination claims; favorable settlement.
- Successfully defense of medical device manufacturer°
- Successfully defended client against claims for pregnancy discrimination, failure to pay overtime, and waiting time penalties.
- Defense of large hospital chain against discrimination and retaliation claims°
- Defended Hospital Corporation of America in an action brought by a former employee alleging discrimination and retaliation in violation of CFRA and FEHA.
- Defense of one of the nation’s largest school districts
- Obtained summary judgment in favor of client on all claim in wrongful termination action brought by former teacher.
- Other Business Litigation Orange County Fair prevails in two-month fraud/unfair competition action against music venue owner and national music promoter°
- Represented the 32nd District Agricultural Association (Orange County Fair) as a plaintiff in an action for fraud, breach of contract, and antitrust damages arising out of the Association's purchase of the Pacific Amphitheatre pursuant to a purchase agreement containing a "sound covenant" with a noise restriction so severe that it rendered the Amphitheatre useless. After a two-month simultaneous jury and bench trial, the trial court invalidated the sound covenant and the defendants settled the damage claims against them for a substantial sum
- National Communications Provider obtains summary judgment in employee action alleging unfair compensation plans°
- Defended client in suit by a top-tier current employee for damages and declaration that its compensation plans are unfair and void as against public policy.
- Southern California Medical Corporation fights to keep patient lists°
- Represented Southern California Medical Corporation in a suit involving allegations of a departing physician stealing patient lists and engaging in unfair competition.
- TRW defends against claims brought by the federal government under the False Claims Act°
- Represented TRW Inc. in defense of claims brought by the federal government and a private relater under the False Claims Act.
- National tobacco company defends against ERISA claims
- Successfully defended against as ERISA action seeking recover of benefits and involving unique questions relating to the standard of review.
- San Bernardino County settles liability trial in inverse condemnation case°
- Retained to represent the County and Flood Control District of San Bernardino as plaintiff in complex real estate litigation involving more than $200 million in alleged damages.
°The above representations were handled by Mr. Kemple prior to his joining Greenberg Traurig, LLP.
Recognition & Leadership
- Listed, The Best Lawyers in America, Litigation – Labor and Employment, 2016-2023
- Listed, Thomson Reuters, "Stand-Out Lawyers," 2023
- Listed, Benchmark Litigation, "Labor & Employment Star," 2019-2022
- Listed, The Legal 500 United States, Labor and Employment - Labor and Employment Litigation, 2015-2021
- Listed, Lawdragon 500, Leading Corporate Employment Lawyers, 2020-2022
- Listed, Super Lawyers magazine, Southern California Super Lawyers, 2007-2023
- Listed, The Daily Journal, "Top Labor & Employment Lawyers in California," 2012, 2014 and 2018-2021
- Listed, Los Angeles Business Journal, "Top Litigators & Trial Lawyers in Los Angeles," 2019
- Listed, Lawdragon and Human Resource Executive® magazine, "The Nation's Most Powerful Employment Lawyers - Top 100," 2019
- Listed, National Law Journal, Employment Law Trailblazer, 2019
- Selected, Law360 MVP "Labor and Employment," 2011
- Member, American Bar Association
- Member, Century City Bar Association
- Member, Association of Business Trial Lawyers Los Angeles
- Pastoral Council, American Martyrs Church
J.D., University of Southern California Law School, 1989
- Order of the Coif
- Law Review
- Legal Writing Instructor
- B.A., Political Science, University of California at Los Angeles, 1984
- Hon. Edward Rafeedie, U.S. District Court for the Central District of California, 1989-1990
- U.S. District Court for the Central District of California
- U.S. District Court for the Northern District of California
- U.S. District Court for the Southern District of California
- U.S. Court of Appeals for the Ninth Circuit
- U.S. Court of Appeals for the Fifth Circuit