# O'BRIEN v. Ed Donnelly Enterprises, Inc.

> Court of Appeals for the Sixth Circuit · August 5, 2009 · 575 F.3d 567

URL: https://www.frixlaw.com/law-library/cases/9564458

## Case

- **Full name:** Teresa O’BRIEN, Et Al. (No. 07-4553); Jessica Dellarussiani, Et Al. (No. 08-3184), Plaintiffs-Appellants, v. ED DONNELLY ENTERPRISES, INC., and Ed Donnelly, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 5, 2009
- **Citations:** 575 F.3d 567; 15 Wage & Hour Cas.2d (BNA) 225; 2009 U.S. App. LEXIS 17368; 2009 WL 2382437
- **Precedential status:** Published
- **Opinion:** Concurrence by White
- **Judges:** Moore, White, Tarnow
- **Cited by:** 399 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9564458

## How later opinions describe it (automated extraction)

- holding that employees may be similarly situated if their claims are merely “unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct” and that the plaintiff is not required to show that emp…
- concluding that a district court should not apply the sham affidavit rule when “the alleged inconsistency created by the affidavit existed within the deposition itself ” (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980))
- holding that, because of the Act’s remedial purposes, FLSA’s “similarly situated” standard is less stringent than that applied in a Rule 23 analysis
- holding that “the plaintiffs were similarly situated, because their claims were unified by common theories of defendants’ statutory violations,” namely, “forcing employees to work off the clock and improperly editing time-sheets”
- holding that where defendant makes offer of judgment that satisfies plaintiff’s entire demand, “the better approach is to enter judgment in favor of the plaintiffs in accordance with the defendants’ Rule 68 offer of judgment”

## Opinion text

WHITE, Circuit Judge,
concurring in part.
I concur in the majority opinion except with regard to its determination that the Dellarussiani plaintiffs’ common-law claims in O’Brien are necessarily barred by res judicata. I would leave such a determination to the district court on remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564458. Public record. Not legal advice.