By Jessie Kokrda Kamens
The U.S. Supreme Court's landmark 2011 class action decisions set the stage
for a year of “significant change” in workplace class action litigation in 2012,
led by the “halo effect” of the Wal-Mart Stores Inc. v. Dukes decision, a
law firm report released Jan. 14 said.
The opinion in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011)
(62 BTM 193, 6/21/11) “dominated the legal landscape” and was cited by lower
courts an “astounding” 541 times in 2012, Seyfarth Shaw said in its 2013
Workplace Class Action Litigation Report.
“Marked by the halo effect of [Dukes], this past year created a number
of lasting changes in employment law that will continue to alter the legal
landscape and litigation strategies for employers in 2013,” Gerald L. Maatman
Jr., co-chair of Seyfarth's class action defense group and the report's author,
said in a statement.
“Meanwhile,” Maatman said, “wage and hour claims continue to rise with no
sign of a crest in lawsuit filings and the EEOC's renewed focus on systemic
investigations also poses high-stakes challenges for employers.”
The Dukes decision held that Federal Rule of Civil Procedure 23(b)(2)
cannot be used to recover individualized monetary relief for a class, and
established a heightened standard for Rule 23(a)'s commonality requirement, the
The report said the Dukes decision caused federal and state courts to
conduct a “wholesale review” of class certification orders in pending cases.
The decision also prompted defendants to file new rounds of motions for
decertification, it said.
The vacated class in Dukes involved an allegedly discriminatory
employment policy allowing managers to exercise discretion in pay and promotion,
but the report added that these types of claims are not entirely dead.
“Courts are beginning to allow discretionary elements of an identifiable
policy to be attacked” in the employment discrimination context, the report
The U.S. Supreme Court's opinion in AT&T Mobility LLC v.
Concepcion, 131 S.
Ct. 1740(2011) (62 BTM 138, 5/3/11), was already producing “second
generation” issues, according to the report.
That decision held that the Federal Arbitration Act preempts state law and
paves the way for broad use of class action waiver clauses in arbitration
The key battleground issue going forward is whether class action bans in
arbitration agreements should escape enforcement in cases where the plaintiff
produces hard evidence that it would be too costly to pursue an individual
action, the report said.
In such cases, plaintiffs argue that a class action is the only mechanism
that allows plaintiffs to vindicate their statutory workplace rights
effectively, the report said.
Settlement values in the employment discrimination class action context
nose-dived following the Dukes decision, according to the report.
The top 10 settlements in 2012 totaled $48.65 million, a sharp decline from
2010, the year prior to Dukes, when the total was $346.4 million.
This trend may reverse itself in 2013 as the plaintiffs' class action bar
“reboots” its approach to litigation, the report predicted.
The report found that wage and hour litigation outpaced all other types of
workplace class actions in 2012, with a total of 7,672 Fair Labor Standards Act
suits filed last year. That represented an increase of 893 from the then-record
Generally, the report said, the still-flagging U.S. economy in 2012 fueled
more class action and collective action litigation.
This trend will likely continue in 2013 “as businesses retool operations in
an improving economy and the Obama administration renews an emphasis on
enforcing workplace laws.”
The report also said government enforcement remained “white hot” in 2012. The
Equal Employment Opportunity Commission racked up a fourfold increase in
recoveries against employers for its systemic discrimination investigations, it
Enforcement actions will accelerate even more in 2013, the report
The complete 870-page report is available as an eBook. To request a free
copy, visit http://www.seyfarth.com/publications/Ninth-Annual-Workplace-Class-Action.