In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern: file the case, do minimal discovery, move for conditional certification under the first-tier lenient standard, and then settle before decertification. While frustrating for employers, it can be, and often is, a viable strategy.
But it doesn’t always work. Some cases don’t settle, and keeping a class together under the less lenient, second-tier standard is much more difficult than getting it conditionally certified in the first place. Even if the class survives the employer’s motion to decertify, the court may revisit the issue and decertify the case on the eve of trial as recently happened in Espenscheid v. DirectSat, LLC, Case No. 1943 (7th Cir. Feb. 4, 2013). We blogged the Espenscheid case on February 7, 2013.
Even worse than decertification, what if the court accepts the arguments that the putative class members are similarly situated, but then grants summary judgment against the entire class? That is exactly what happened earlier this month in the case of Harper v. Government Employees Insurance Co., Case No. 2:09-CV-02254-LDW-GRB (E.D.N.Y. Nov. 4, 2013).
A dozen years ago, in Bell v. Farmers Insurance Exchange, 87 Cal. App. 4th 805, cert. denied, 534 U.S. 1041 (2001), a California Court of Appeals launched a tsunami of wage and hour litigation against the insurance industry by holding that certain Farmers claims adjusters were non-exempt as a matter of law. The Bell case, which had some peculiar and largely unfavorable facts for the employer, however, soon proved to be the high water mark and a series of subsequent decisions and Department of Labor guidance reversed the tide over the next...
