By Gerald L. Maatman Jr.
Our 2015 Report is now ready. At 844 pages, it analyzes 1,219 rulings and is our biggest and best Report ever.
Click here to order your copy in eBook format. Click here to download Chapters 1 and 2 on the 2015 Executive Summary/Key Trends and the Top Class Action Settlements.
The Report is the sole compendium in the U.S. dedicated exclusively to workplace class action litigation, and has become the “go to” research and resource guide for businesses and their corporate counsel facing complex litigation. We were humbled and honored by the review of our Report by Employment Practices Liability Consultant Magazine (“EPLiC”) – the review is here. EPLiC said: “The Report is the singular, definitive source of information, research, and in-depth analysis on employment-related class action litigation. Practitioners and corporate counsel should not be without it on their desk, since the Report is the sole compendium of its kind in the United States.”
The 2015 Report analyzes rulings from all state and federal courts – including private plaintiff class actions and collective actions, and government enforcement actions - in the substantive areas of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, and the Class Action Fairness Act of 2005. It also features chapters on EEOC pattern or practice rulings, state law class certification decisions, and non-workplace class action rulings that impact employers. The Report also analyzes the leading class action settlements for 2014 for employment discrimination, wage & hour, and ERISA class actions, as well as settlements of government enforcement actions, both with respect to monetary values and injunctive relief provisions.
Executive Summary & Key Trends
Workplace class action litigation continues to accelerate, grow, and pose extraordinary risks for employers. Skilled plaintiffs’ lawyers are continually developing new theories and approaches to complex employment litigation. Hence, the events of the past year in the workplace class action world demonstrate that the array of bet-the-company litigation issues that businesses face are continuing to widen and undergo significant change. At the same time, governmental enforcement litigation pursued by the U.S. Equal Employment Commission and the U.S. Department of Labor manifests the aggressive “push-the-envelope” agenda of two activist agencies, and regulatory oversight of workplace issues continues to be a priority. All of these factors combine to challenge businesses to integrate their litigation and risk mitigation strategies to navigate these exposures.
The Supreme Court’s Class Action Rulings In 2014
By almost any measure, 2014 was a year of evolving changes for workplace class action litigation. The U.S. Supreme Court issued several class action rulings in 2013 – in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), American Express Co. v. Italian Restaurant, 133 S. Ct. 2304 (2013), and Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013) – that impacted all varieties of complex litigation in a profound manner over the past year, as lower federal courts and state courts interpreted and applied these new precedents. The Supreme Court added to this growing body of class action case law with rulings in 2014 in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014), Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014), Integrity Staffing Solutions, Inc. v. Busk, 2014 U.S. LEXIS 8293 (U.S. Dec. 9, 2014), and Dart Cherokee Basin Operating Co., LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014). These Supreme Court rulings had an immediate impact on workplace class action issues, and are sure to shape litigation issues and strategies in 2015 and beyond.
The Impact Of Wal-Mart Stores v. Dukes
More than any other development in 2014, however, the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), continued to have a wide-ranging impact on virtually all types of class actions pending in both federal and state courts throughout the country. In many respects, Wal-Mart continued to be the “seminal precedent” in courtrooms in 2014 as litigants argued and judges analyzed class certification issues. Rule 23 decisions in 2014 in large part pivoted off of Wal-Mart, and leverage points in class action litigation increased or decreased depending on the manner in which judges interpreted and applied Wal-Mart. At the same time, the ruling in Comcast Corp. fueled defense arguments by undermining attacks on class certification in a wide range of contexts, which were met with mixed success for employers.
As is well-known by now, the Supreme Court’s decision in Wal-Mart elucidated whether Rule 23(b)(2) can be used to recover individualized monetary relief for a class (and held it may not), established a heightened standard for the Rule 23(a)(2) commonality requirement (and determined that common questions for a class must have common answers), and rejected previous lower court interpretations of Supreme Court precedent on Rule 23 burdens of proof (and found that to the extent factual determinations that go to the merits also overlap with the Rule 23 requirements, those factual issues must be analyzed to determine the propriety of class certification). As a result, Wal-Mart continued to foster a tidal wave of Rule 23 decisions in 2014, as litigants and courts grappled with the ruling’s implications in a wide variety of workplace class action litigation contexts. As of the close of 2014, Wal-Mart had been cited a total of 571 times in lower federal and state court rulings.
The Impact Of Comcast Corp. v. Behrend
Last year’s ruling in Comcast Corp. also added a new weapon to employers’ arsenals in challenging class certification. In Comcast Corp., the Supreme Court interpreted Rule 23(b)(3) – which requires “questions of law or fact common to class members predominate over any questions affecting only individual members” – to mandate that a class’ proposed damages model show damages on a class-wide basis. In so determining, the Supreme Court reaffirmed that lower courts must undertake a “rigorous analysis” of whether a putative class satisfies the predominance criterion set forth in Rule 23(b)(3), even if that analysis overlaps with the merits of the underlying claims, and held that individual issues of damages may preclude class certification. This decision provides companies with a significant and rational defense to class certification in class actions. Much like Wal-Mart, the decision in Comcast Corp. reverberated throughout the lower federal and state courts in 2014, and was cited a total of 261 times by the close of the year, a rather remarkable figure for a decision rendered in March of 2013.
Against this backdrop, the plaintiffs’ class action employment bar filed and prosecuted significant class action and collective action lawsuits against employers in 2014. In turn, employers litigated an increasing number of novel defenses to these class action theories, which were fueled, in part, by the new requirements enunciated in Wal-Mart and Comcast Corp. As this Report reflects, federal and state courts addressed a myriad of new theories and defenses in ruling on workplace class action litigation issues. The impact and meaning of “Wal-Mart issues” and “Comcast Corp. issues” were at the forefront of these case law developments in the debate over the role and meaning of Rule 23 in workplace class action litigation.
The Six Key Trends Of 2014 In Workplace Class Action Developments
An overview of workplace class action developments in 2014 reveals six key trends.
Trend # 1 – Settlements Values/Totals Were Down Except For ERISA Class Actions
First, the Supreme Court’s opinions in Wal-Mart and Comcast Corp. have had a profound influence in shaping settlement strategies. Employers are settling fewer employment discrimination class actions than at any time over the past decade, and at a fraction of the levels as in 2006 to 2013. On the wage & hour front, settlements in the aggregate were relatively flat, and in terms of governmental enforcement litigation, settlement numbers and aggregate totals were significantly lower than in any year since 2006. In contrast, ERISA class actions experienced a renaissance of sorts, and settlement numbers were nearly ten times greater than the aggregate amount in 2013.
Trend # 2 – Wage & Hour Litigation Filings Continued To Increase
Second, more than any other litigation risk, wage & hour class actions dwarfed all other types of filings (as compared to employment discrimination and ERISA class actions, as well as governmental enforcement litigation). Wage & hour litigation now represents the prime litigation risk in the workplace. The “crest” of the wage & hour litigation wave is not yet in sight. Employers can expect more of the same in terms of increased filings 2015.
Trend # 3 – Wage & Hour Collective Action/Class Action Rulings Were More Dominant Than Other Types Of Complex Employment Rulings
Third, FLSA collective actions and state law wage & hour class actions produced more decisions from federal and state courts than any other area of complex employment litigation. The magnet federal jurisdictions were the Second and Ninth Circuits, and state law claims were congregated in plaintiff-friendly venues such as California, Florida, Massachusetts, New Jersey, New York, and Pennsylvania. Statistically, plaintiffs won 70% of conditional certification motions, and won (by defeating) 52% of decertification motions in 2014 in federal courts.
Trend # 4 – The Government’s Enforcement Litigation Manifested Very Aggressive Agency Positions, But Recoveries Were Down
Fourth, the U.S. Department of Labor (“DOL”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) continued their aggressive litigation approaches, albeit with mixed success. The agencies suffered losses on a myriad of litigation issues in the federal courts in 2014, and their aggregate settlement recoveries were significantly lower in 2014 than at any time since 2006. At the same time, the EEOC’s systemic investigation program – in which the Commission emphasizes the identification, investigation, and litigation of discrimination claims affecting large groups of “alleged victims” – expanded yet again over prior years. The EEOC’s docket of systemic suits comprised nearly 20% of all merits filings of 2014, and by the end of the year, represented nearly 25% of the Commission’s active litigation docket. This development is of critical importance to employers, for it evidences an agency with a laser-focus on high-impact, big stakes litigation.
Trend # 5 – Decisions Regarding The Class Action Fairness Act Were Transformative
Fifth, 2014 was a transformative year in case law developments under the Class Action Fairness Act of 2005 (“CAFA”). Jurisprudence under the CAFA continued to mature after the U.S. Supreme Court decided its first case on the law in 2013 in Standard Fire Insurance Co. v. Knowles. In 2014, the Supreme Court held in Dart Cherokee Basin Operating Co., LLC v. Owens that defendants are not required to submit evidence in support of a removal petition under the CAFA, and that a short and plain statement of fact is enough. The Supreme Court also reaffirmed that there is no presumption against removals under the CAFA. Case law under the CAFA has certainly turned the corner in this regard for employers, thereby solidifying defense strategies to secure removal of class actions to federal court.
Trend # 6 – The Decisions In Wal-Mart And Comcast Corp. Had A Profound Impact On Rule 23 Case Law Developments In 2014
Sixth, the Supreme Court’s opinions in Wal-Mart and Comcast Corp. had a profound influence in shaping the course of class action litigation rulings throughout 2014. Wal-Mart and Comcast Corp. prompted defendants to mount challenges to class certification based on all sorts of theories (and not just those modeled after the nationwide class claims rejected in Wal-Mart and the antitrust damages issues discussed in Comcast Corp.). This resulted in new types of case law rulings on a myriad of Rule 23-related issues. The result was a year of decisions on class action issues the likes of which have never been seen before. This wave of new case law is still in its infancy. As many class action issues are in a state of flux post-Wal-Mart and post-Comcast Corp., these evolving precedents are expected to continue to develop in the coming year.
Implications For Employers
The past year was a big one for workplace class actions. The coming year is likely to be equally as challenging for employers.