Matthew C. Kane

He | Him | His

Partner

Los Angeles
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San Francisco
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"[Matthew Kane] understands the role of an in-house lawyer and thinks outside the box...[he] is very smart, responsive and very knowledgeable about the issues facing our industry...[and] is a dynamic problem solver."

— Chambers USA 2021

Overview

For almost three decades, as a lawyer in private practice and in-house counsel for a Fortune 50 company, Matthew Kane has been providing clients with proactive, pragmatic and cutting-edge strategies for preventing, resolving and defending employment and other business disputes and issues. Matt is passionate about delivering exceptional client service and work product and finding the shortest and most cost-effective path to a positive outcome for his clients, however they may define that. He has been recognized as a West Trailblazer by The American Lawyer, a BTI Consulting Client Service All Star, a Lawdragon 500 Leading U.S. Corporate Employment Lawyer, a Human Resources Executive Most Powerful Employment Lawyer, and is Chambers-rated for Labor & Employment – California.

Matthew Kane represents businesses in preventing, litigating and resolving employment-related claims, including wage and hour class actions and collective actions, California Labor Code Private Attorney General Act (PAGA) representative actions, misappropriation of trade secrets and non-competition agreement claims, and labor-management relations issues. Matt has significant experience representing clients in the financial services, food and beverage, hospitality, manufacturing, real estate services, retail, transportation and third-party logistics and distribution industries.

Matt previously served as in-house counsel for the Kroger Co. In that role, he managed all employment-related and consumer compliance issues and litigation involving the approximately 35,000 employees, 500 retail stores, three distribution centers and four manufacturing and food processing plants of Kroger divisions located in California, Nevada, Illinois and Indiana.

Clients consistently commend Matt’s candid and pragmatic advice and counsel as he guides them through the complex landscape of employment-related issues to workable, efficient solutions. For over a decade, Matt served as lead national wage and hour class action defense counsel for one of the largest financial institutions in the United States, and he serves in similar roles nationally and regionally for clients in other industries. His practice is national in scope, representing clients in courts throughout the United States, including in California, Illinois, Kansas, Maryland, Massachusetts, Nevada, New Jersey, New York, Texas, Washington and Wisconsin.

Select Experience

  • Defending national third-party logistics and warehousing service provider against claims brought by former Chief Executive Officer for alleged breach of employment agreements, unpaid wages and challenges of restrictive covenants.
  • Obtained an order denying class certification on a motion for reconsideration in two related wage and hour class actions for a leading financial institution, one involving financial center employees and the other involving call center employees, based on findings that there was no evidence of any de facto policies necessitating off-the-clock work or impeding the taking of meal and rest breaks, and that individual issues predominated. The court also denied the plaintiffs’ request for leave to file an amended, consolidated complaint to try to cure their class certification infirmities. Frausto v. Bank of America, N.A., 2021 WL 2476902 (N.D. Cal. June 17, 2021).
  • Obtained an order dismissing with prejudice at the pleading stage California state law claims for inaccurate wage statements, waiting time penalties and shared labor contractor liability in a proposed class action against a national third-party logistics client. Parsittie v. Schneider Logistics, Inc. et al., 2020 WL 212003 (C.D. Cal. Apr. 3, 2020), aff’d in part, rev’d in part and remanded --- F. App’x ---, 2021 WL 2365978 (9th Cir. 2021).
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Experience

  • Defending national third-party logistics and warehousing service provider against claims brought by former Chief Executive Officer for alleged breach of employment agreements, unpaid wages and challenges of restrictive covenants.
  • Obtained an order denying class certification on a motion for reconsideration in two related wage and hour class actions for a leading financial institution, one involving financial center employees and the other involving call center employees, based on findings that there was no evidence of any de facto policies necessitating off-the-clock work or impeding the taking of meal and rest breaks, and that individual issues predominated. The court also denied the plaintiffs’ request for leave to file an amended, consolidated complaint to try to cure their class certification infirmities. Frausto v. Bank of America, N.A., 2021 WL 2476902 (N.D. Cal. June 17, 2021).
  • Obtained an order dismissing with prejudice at the pleading stage California state law claims for inaccurate wage statements, waiting time penalties and shared labor contractor liability in a proposed class action against a national third-party logistics client. Parsittie v. Schneider Logistics, Inc. et al., 2020 WL 212003 (C.D. Cal. Apr. 3, 2020), aff’d in part, rev’d in part and remanded --- F. App’x ---, 2021 WL 2365978 (9th Cir. 2021).
  • Obtained dismissal with prejudice at the pleading stage of a proposed nationwide FLSA collective action and Rule 23 Wisconsin state law and federal Truth in Leasing Act class action based on alleged misclassification of owner-operator truck drivers used by national motor carrier, finding as a matter of law that the plaintiff and proposed collective and class members were properly classified as independent contractors. Brant v. Schneider National, Inc. et al., E.D. Wisc. Case No. 1:20-cv-01049-WCG, Dkt. #83 (May 20, 2021).
  • Lead counsel in remote bench trial conducted via Zoom in litigation brought by digital media advertising agency in federal court in California regarding alleged breach of settlement agreement with former owners of social media advertising agency that it had acquired.
  • Successfully compelled to individual arbitration a proposed Rule 23 Cal-WARN and nationwide WARN class action brought against a transportation industry client pursuant to the Nevada choice of law provision in the arbitration policy because, as a truck driver, the named plaintiff was found to be outside the coverage of the Federal Arbitration Act. Romero v. Watkins and Shepard Trucking, Inc. et al., 2020 WL 5775180 (C.D. Cal. July 10, 2020), aff’d --- F. App’x ---, 2021 WL 3675074 (9th Cir. Aug. 19, 2021).
  • Successfully compelled to individual arbitrations the claims of approximately 100 named and opt-in plaintiffs who alleged they were misclassified as overtime exempt by a retailer in a proposed nationwide FLSA collective action filed in the Southern District of Mississippi. Kidd et al. v. Lowe’s Home Centers, LLC et al., 2020 WL 1493464 (S.D. Miss. March 27, 2020), 2020 WL 9258481 (S.D. Miss. Dec. 2, 2020).
  • Obtained an order dismissing with prejudice at the pleading stage a proposed Rule 23 class action alleging claims for minimum wage, overtime pay, meal and rest period, inaccurate wage statement, final pay and unreimbursed business expenses violations. Sherman v. Schneider National Carriers, Inc., et al., 2019 WL 8160687 (C.D. Cal. Sept. 5, 2019).
  • Successfully moved to compel individual arbitration of a proposed Rule 23 wage and hour class action against a building products manufacturer alleging meal and rest period, inaccurate wage statement and final pay violations. Bishop v. Boral Industries, Inc. et al., 2020 WL 4530740 (S.D. Cal. Aug. 6, 2020).
  • Obtained an order granting partial summary judgment of putative class representative plaintiff’s individual claim for unpaid overtime based on alleged use of incorrect regular rate of pay on the ground that bonus payments the plaintiff received were in fact discretionary and therefore not includable in her regular rate of pay. Frausto v. Bank of America, N.A., 2019 WL 5626640 (N.D. Cal. Oct. 31, 2019).
  • Defeated class certification of all claims brought on behalf of a putative class of approximately 5,000 loan collection call center employees alleging failure to pay overtime wages, provide meal and rest breaks, provide accurate itemized wage statements, timely pay final wages and engagement in unfair business practices. Castillo v. Bank of America, N.A., 2019 WL 3818954 (C.D. Cal. July 16, 2019), aff’d 980 F.3d 723 (9th Cir. 2020). Thereafter, obtained order granting partial summary judgment on plaintiff’s individual claims for alleged meal and rest break violations.
  • Defeated class certification of all California state law wage and hour claims brought on behalf of a putative class of Small Business Bankers allegedly misclassified as overtime exempt outside salespersons. Lopez et al. v. Bank of America, N.A., 2019 WL 3228954 (N.D. Cal. July 5, 2019).
  • Successfully moved to compel individual arbitration of a proposed Rule 23 wage and hour class action, after twice moving to dismiss plaintiff’s complaints and obtaining dismissal of plaintiff’s meal and rest break and wage statement claims with prejudice, with the court rejecting the plaintiff’s contention that such litigation conduct constituted a waiver of the employer’s right to compel arbitration. Guerrero v. Haliburton Energy Services, Inc., 2018 WL 3615840 (E.D. Cal. July 26, 2018).
  • Successfully moved to dismiss on forum non conveniens grounds, based on a Wisconsin forum selection provision, a putative Rule 23 class action brought against a national motor carrier for California state law wage and hour claims based on alleged independent contractor misclassification of truck drivers, and ultimately obtained ruling in Wisconsin state court enforcing the Wisconsin choice of law provision that effectively mooted all of the plaintiff’s claims. Robles v. Schneider National Carriers, Inc. et al., 2017 WL 8232083 (C.D. Cal. Dec. 11, 2017).
  • Successfully moved to dismiss with prejudice for lack of personal jurisdiction wrongful termination and fraudulent inducement action brought by a U.S. national employed in Singapore by international maritime port terminal operator. Gordon v. APM Terminals North America, Inc., 2017 WL 3838092 (N.D. Cal. Sept. 1, 2017).
  • Defeated plaintiff’s motion for FLSA conditional certification and Rule 23 class certification on claims based on alleged misclassification of financial advisors as exempt from overtime compensation, and later granting motion to strike PAGA representative action allegations. Litty vs. Merrill Lynch & Co., Inc., et al., 2014 WL 5904907 (C.D. Cal. Aug. 4, 2014), and 2014 WL 5904904 (C.D. Cal. Nov. 10, 2014).
  • Obtained an order granting motion for partial judgment on the pleadings in favor of national temporary staffing services provider on putative wage and hour class action claim for late payment of wages under California Labor Code section 201.3, finding that timely payment of wages occurred upon mailing rather than receipt of paycheck and that waiting time penalties are not recoverable other than for late payment of final wages. Willner vs. Manpower Inc., 35 F.Supp.3d 1116 (N.D. Cal. 2014).
  • Obtained an order dismissing with prejudice at pleading stage putative wage and hour class action claims brought against national motor carrier asserting violations of California meal break laws on ground that such claims were preempted by Federal Aviation Administration Authorization Act. Rodriguez, et al. vs. Old Dominion Freight Line, Inc., 2013 WL 6184432 (C.D. Cal. Nov. 27, 2013).
  • Defeated class certification of a proposed class of banking center employees in MDL proceedings venued in Kansas related to approximately 30 consolidated actions alleging off-the-clock wage and hour claims by approximately 200,000 banking center and call center hourly employees. In re Bank of America Wage and Hour Employment Litigation, 286 F.R.D. 572 (D. Kan. 2012).
  • Obtained an order dismissing with prejudice at pleading stage putative wage and hour class action brought by truck drivers against national foodservice distribution company alleging violations of California meal break laws on ground that all claims were preempted by Federal Aviation Administration Authorization Act. Esquivel, et al. vs. Vistar Corp., et al., 2012 WL 516094 (C.D. Cal. Feb. 8, 2012).
  • Obtained order granting motion for summary judgment in favor of national temporary staffing services provider in putative wage and hour class action alleging that employer’s vacation policy unlawfully caused forfeitures of employees’ allegedly vested vacation wages. Harris vs. Manpower Inc., 2010 WL 3942781 (S.D. Cal. Oct. 7, 2010).
  • Obtained order granting motion for judgment on the pleadings or, alternatively, partial summary judgment in favor of national financial services firm on all claims asserted in putative wage and hour class action alleging unlawful forfeiture of vested compensation under incentive compensation plans. Callan, et al. vs. Merrill Lynch & Co., Inc., et al., 2010 2010 WL 3452371 (S.D. Cal. Aug. 30, 2010).
  • Obtained order in favor of international maritime port operator finding that non-class representative action proceeding allowed in state court for claims brought on behalf of “aggrieved employees” under California Labor Code Private Attorney General Act (PAGA) is preempted by FRCP Rule 23 when brought in federal court, and that such representative claims can only be pursued if the plaintiff obtains class certification under FRCP Rule 23. Thompson vs. APM Terminals Pacific Ltd, 2010 WL 6309364 (N.D. Cal. Aug. 26, 2010).
  • Defeated class certification in putative wage and hour class action alleging claims brought by truck drivers against national grocery distribution company for fraud, unpaid wages, meal and rest break violations and related claims under California Labor Code. Thereafter obtained orders granting motion for summary judgment against named plaintiffs and awarding over $1 million in prevailing party attorneys’ fees against them. Seymour, et al. vs. McLane Company, Inc., et al., 2009 WL 5841098 (C.D. Cal. March 30, 2009), and 2011 WL 165385 (C.D. Cal. Jan. 18, 2011), affirmed 519 Fed.Appx. 489 (9th Cir. 2013).
  • Obtained seven-figure settlement of misappropriation of trade secret claims brought by international student group travel company against former California salesperson, after court denied motion for preliminary injunction and while appeal of that ruling was pending before Ninth Circuit.
  • Represented international maritime port terminal operator in defending and favorable resolution of unfair labor practice charge alleging unlawful telephone monitoring of bargaining unit members during collective bargaining agreement negotiations.
  • Represented national soft drink bottler and distributor in obtaining full dismissal and/or withdrawal of eight unfair labor practice charges filed by union locals with NLRB during course of multi-facility contract negotiations in western Washington, and defense of related ERISA putative class action brought on behalf of striking employees whose health insurance coverage was terminated when they stopped working.

Recognitions and Memberships

Recognitions

  • The American Lawyer, "West Trailblazers" (2021)
  • Chambers USA, Labor & Employment - California: Band 4 (2021)
  • BTI Consulting: Client Service "All Star" (2020)
  • Lawdragon 500: 'Leading U.S. Corporate Employment Lawyers" (2020)
  • Human Resources Executive: “Up and Comer”, Lawdragon’s “100 Most Powerful Employment Attorneys” (2013 to 2019)
  • Lexology :Client Choice Award for Litigation, California (2017)

Memberships

  • California Lawyers Association
    • Labor and Employment Section
    • Litigation Section
  • Los Angeles County Bar Association
    • Labor and Employment Section
    • Litigation Section
  • Association of Southern California Defense Counsel

Prior Positions

  • The Kroger Co.: Senior Attorney (2000 to 2005)

Admissions

  • U.S. Court of Appeals, Second Circuit
  • U.S. Court of Appeals, Fifth Circuit
  • U.S. Court of Appeals, Seventh Circuit
  • U.S. Court of Appeals, Ninth Circuit
  • U.S. Court of Appeals, Tenth Circuit
  • U.S. District Court, Central District of California
  • U.S. District Court, Eastern District of California
  • U.S. District Court, Northern District of California
  • U.S. District Court, Southern District of California
  • U.S. District Court, District of Colorado
  • U.S. District Court, Northern District of Illinois
  • U.S. District Court, Northern District of Texas
  • U.S. District Court, Southern District of Texas
  • U.S. District Court, Western District of Texas
  • U.S. District Court, Eastern District of Wisconsin
  • California
  • District of Columbia

Education

  • J.D., Pepperdine University School of Law, 1994
  • B.S.B.A., Boston University School of Management, 1991