FLSA Collective Action: Erosion of Lusardi Two-Step Certification, Alternative Standards, Circuit Split
Recording of a 90-minute CLE video webinar with Q&A
This CLE webinar will examine the status of FLSA collective action certification following the Swales and Clark appellate decisions, including a close look at the standards established under each that depart from the two-step certification method in Lusardi. The panel will address what effect these decisions are having on other circuits and the impact on litigation strategy for plaintiff and defense counsel.
Outline
- Introduction: widely used Lusardi two-step certification method
- Swales v. KLLM Transport Services L.L.C. (5th Cir. 2021)
- Clark v. A&L Home Care and Training Center L.L.C. (6th Cir. 2023)
- Adoption by other circuits
- Fourth Circuit district court split
- Eleventh Circuit district court split
- Seventh Circuit review
- Others
- Impact on plaintiff and defense litigation strategies
- Burdens of proof
- Discovery
- Motion practice
- Other considerations
- Takeaways for practitioners
Benefits
The panel will review these and other important considerations:
- How do the standards established in Swales and Clark impact litigation strategy for plaintiff and defense counsel, including burdens of proof that must be met, timing and extent of discovery, and motion practice?
- What effect have those decisions had on jurisprudence in other circuits?
- What impact might these decisions have on where and how to bring FLSA collective actions?
- What are best practices for plaintiff and defense counsel when litigating FLSA collective actions in the affected jurisdictions?
Faculty
Gerald L. Maatman, Jr.
Partner, Chair Class Action Defense Group
Duane Morris
Mr. Maatman has nearly four decades of experience practicing law and has defended some of the most... | Read More
Mr. Maatman has nearly four decades of experience practicing law and has defended some of the most significant bet-the-company cases ever filed against corporate America. He has represented companies, executive teams and boards across the country in class action litigation, ranging in size from thousands to hundreds of thousands of claims by employees. Among Mr. Maatman's accomplishments, he defended and defeated the largest systemic enforcement action ever brought in the history of the U.S. Equal Employment Opportunity Commission, the first Attorney General prosecution of a Wall Street company for workplace discrimination and harassment, and the largest wage and hour class and collective actions ever brought in Florida and New York. While he is known to be a fierce litigator, Mr. Maatman also helps his clients anticipate large-scale litigation risks before they happen to prevent issues that could turn into litigation. Mr. Maatman pioneered the process of conducting employment-practices audits to assist employers in structuring effective and practical personnel policies and protocols. He also writes and lectures extensively on class action and employment litigation topics. Mr. Maatman has authored six books on employment law topics and has spoken to employer groups throughout the United States, as well as in Asia, Europe, Canada and Mexico.
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Jennifer A. Riley
Partner, Vice Chair Workplace Class Action Group
Duane Morris
Ms. Riley has defended companies faced with significant complex litigation matters for more than two decades. She... | Read More
Ms. Riley has defended companies faced with significant complex litigation matters for more than two decades. She regularly defends companies facing class actions, collective actions, pattern or practice lawsuits, and other types of representative proceedings, ranging in size from dozens to tens of thousands of claims. Ms. Riley has represented clients facing bet-the-company cases in a wide range of complex civil litigation matters in federal and state courts across the country. She also provides counsel to employers seeking to navigate thorny issues, including investigations, compliance, and terminations. Ms. Riley is a regular speaker, author, and presenter regarding class action issues, legal developments, and challenges that companies may face in the future.
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