Erica W. Rutner of Lash & Goldberg in Miami. Courtesy photo

At a young age, Erica Rutner showed talent in her legal advocacy by representing herself in an Equal Employment Opportunity case. Now she is advocating for a client who is at risk of losing hundreds of millions of dollars in two complex class actions.

When Rutner was 16 years old, she landed a summer job at a large retail clothing company in Washington D.C.

"I informed them I could not work on Saturdays due to my religious observance," Rutner said. "And at that point, they rescinded the offer to work there."

Frustrated, Rutner dove into reviewing discrimination law. Through her research, she came to the conclusion that the company had to make a reasonable accommodation for her, such as by rearranging her schedule to allow her to practice her Jewish faith. Then, she independently filed a claim with the U.S. Equal Employment Opportunity Commission and detailed the legal basis for her claim.

Rutner's father, who worked in the federal government, tagged along with his daughter to a mediation hearing. Rutner says she was initially intimidated, but arrived well-prepared and confident. She ended up scoring a settlement in which she was paid what she would have made over that whole summer of work.

"It really made me realize the power of the legal system and how it can be used to vindicate people's rights and what's wrong," Rutner said. "From then on, I knew I wanted to be a lawyer. That was it. That was what I want to do."

Following high school, Rutner earned her undergraduate degree in psychology at Columbia University's Barnard College. She attended graduate school at the University of Miami School of Law on a full scholarship.

Rutner says her education prepared her for the cases she works on today. As a partner at Lash & Goldberg, she focuses on class action and multidistrict litigation defense. She says she is using her skills to advocate for American companies, such as Brookdale Senior Living.

"I am on the opposite side from where I was at 16, but what I am doing is sort of protecting our legal system," Rutner said. "People forget: These companies are employing American workers. If you file similar lawsuits with different named plaintiffs that are pursuing frivolous claims, then they end up having to let go of workers because they can't pay them, and it trickles down to the consumer."

A class action against Brookdale, which is based in Tennessee but has over 800 different senior living facilities and retirement communities across the United States, was filed in the United States District Court for the Southern District of Florida in 2017.

The class action was brought by Gloria Runton, as the class representative for all of the residents in the senior living facilities that Brookdale operates. The class action alleged that the company was not accounting for resident needs when it utilized predetermined labor budgets rather than considering the actual needs of residents. The class-action complaint cites to a Florida regulatory agency bringing nine formal administrative actions to remedy staffing deficiencies.

Rutner says she felt strongly about the case in Florida, but around six weeks before the close of discovery, the named class-action plaintiff died.

Soon after, Christa Collins, a partner for Harmon Parker, revealed that opposing counsel did not want to proceed with the lawsuit. Instead, opposing counsel filed a new class-action suit with the United States District Court for the Middle District of Tennessee, with similar allegations on behalf of the same class of Florida and North Carolina class beneficiaries who had been involved in the Florida action.

Collins did not immediately respond to a request for comment from the Daily Business Review.

Rutner objected to the dismissal of the Florida action and obtained a ruling that the Runton estate had to pay Brookdale a portion of its costs if the estate wanted to dismiss the Florida action.

That gave Rutner and her team an opportunity to develop a strategy to limit the claims against Brookdale, which she credits for their triumph in the case. They negotiated a highly favorable class settlement with the Runton estate in Florida that carves out all individuals with an arbitration agreement. This limited her client's exposure significantly by leaving only those people who either are required to arbitrate or raise highly individualized defenses to arbitration.

"So what we ended up doing was reaching a class settlement in Florida with the new attorneys, which should preclude the Florida class claims in Tennessee," Rutner said.

The Tennessee class-action plaintiff objected to the settlement, which would have precluded her class-action claims in Tennessee. That sparked a lot of litigation as a substantial amount was at stake that opposing counsel could recover for their clients.

On March 22, the Florida court gave final approval to the settlement negotiated by Rutner. Following that, a few weeks later, the Tennessee court granted a motion to compel arbitration as to the North Carolina plaintiff. The Tennessee court also directed Brookdale to brief why the Runton settlements warrants striking the class allegations and whether a stay of discovery should be entered in the Florida action.

So for now, the North Carolina plaintiff has been compelled to arbitrate, which means it may not proceed by way of the class action it had originally filed, and instead must file individual claims in arbitration.

"Even if the claim has no merit," Rutner said, "you still have risks."

Opposing counsel was alleging around $2,000 in damages per class member, according to Rutner, with tens of thousands of residents across the facilities in the North Carolina and Florida. The outcome could save her client a considerable amount of money.

"We are about to tell the court in Tennessee because of the final settlement," Rutner said, "there's no way the Florida plaintiff can go ahead with her class claim in Tennessee, because the claims that she is pursuing are already settled in Florida."

While Rutner admits the case is challenging, she credits the hard works she has consistently applied to her practice to get the results she has obtained in the Brooksdale case. When she looks back on her first exposure to the law in the EEOC case, she appreciates how far she has come along.

"One of the things I couldn't foresee at the time was the adversity you face as a lawyer," Rutner said. "Back then, when I went to mediation, there was certainly very little adversity between us and the retail company I had filed a claim against."

Rutner says the mediator spoke to both parties and the issue was resolved quickly.

"When you actually practice law, there is a lot of adversity between the attorneys on one side and the other, and that's challenging dealing with that day in and day out when you are not getting along with the people on the other side," Rutner said. "That is certainly a challenge I hadn't anticipated when I was 16.

"But that comes along with the practice of law," she adds, "and learning how to navigate that is a big part of being an effective lawyer."

Erica W. Rutner

Born: 1984, Silver Spring, Maryland

Spouse: Justin Zisquit

Children: Jaden, Gavin, Annabel, Olivia

Education: J.D, University of Miami; B.A. Barnard College at Columbia University

Experience: Lash & Goldberg, 2017-present; Weil Gotshal & Manges, 2010-2017