By Gerald L. Maatman, Jr.
Our loyal blog readers know that the start of the year is the launch date of Seyfarth’s Annual Workplace Class Action Litigation Report.
And here it is – our 9th Annual Report: click here to download a PDF of the introduction “trends” chapter and the “top ten” settlements chapter.
Called the “definitive source of information on employment class action litigation” by EPLiC Magazine and a resource that “no practitioner who deals with employment claims . . . should be without,” the 870 page Report covers 1,059 class action rulings rendered by federal and state courts in 2012 on workplace laws. To order your copy of the 2013 Report, please click here and complete an order form.
The Report notes that 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 continue to evolve on a landscape that is undergoing significant change. At the same time, governmental enforcement litigation and regulatory oversight of workplace issues heated up to higher levels as compared to past years, thereby challenging businesses to integrate their litigation and risk mitigation strategies to navigate these exposures.
The Report analyzes a landmark year for complex employment-related disputes in 2012 and predicts an array of developing trends for employers to monitor in 2013, led by a dramatic “halo effect” from the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
Wal-Mart’s impact on changing Rule 23 class certification standards dominated the legal landscape in 2012 and was cited by lower courts an astounding 541 times in 2012, generating a tidal wave of new class certification rulings and related decisions on a wide variety of class action issues.
The Report identifies six emerging workplace class action trends for employers to heed in 2013:
First, the Supreme Court’s opinions in Wal-Mart and AT&T Mobility LLC v. Concepcion had a profound influence in shaping the course of class action litigation rulings in 2012, beginning a new wave of creative case law theories that will continue to evolve and impact employers in the defense of their cases in 2013.
Second, government enforcement remained “white hot” in 2012 with the U.S. Equal Employment Opportunity Commission (EEOC) garnering a four-fold increase recoveries against employers for its systemic discrimination investigations. Government enforcement activity is expected to accelerate even more in 2013.
Third, Wal-Mart significantly influenced settlement strategies for workplace class actions in 2012, as employers settled fewer employment discrimination class actions and at a fraction of the levels experienced from 2006 to 2011 (a total of $48.65 million for the top ten settlements in 2012 compared to $346.4 million in 2010 prior to the Wal-Mart ruling in 2011). Against this backdrop, the plaintiffs’ class action bar is “re-booting” its approach to class litigation and this trend may reverse itself in 2013.
Fourth, the sluggishness of the U.S. economy during 2012 fueled more class action and collective class action litigation. This trend is expected to continue in 2013 as businesses retool operations in an improving economy and the Obama Administration renews an emphasis on enforcing workplace laws.
Fifth, wage & hour litigation continued to outpace all other types of workplace class actions in 2012, led by 7,672 Fair Labor Standards Act (FLSA) lawsuits filed this past year, an increase of 893 cases from the then record levels in 2011. These figures are expected to grow again in 2013, as well wage & hour class action litigation in employee-friendly state courts like California and New York.
Sixth and finally, the tight-knit plaintiffs’ class action bar has moved quickly to respond to Wal-Mart and craft new approaches to class-wide theories of certification, liability, and damages related to the Rule 23 developments, creating a new – and evolving – set of challenges for employers.
We hope you enjoy the 2013 Report!