2012 Landmark Year for Workplace Class Action Litigation: Study

When it comes to complex employment-related legal disputes, 2012 will be considered a landmark year, according to a new report on employment class action litigation.

Many of the key rulings of 2012 in class action cases hinged on the U.S. Supreme Court’s 2011 rulings in three milestone cases – Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, and Smith v. Bayer– according to the 9th annual edition of the “Workplace Class Action Litigation Report,” published by Seyfarth Shaw LLP.

The Seyfarth report identifies six emerging workplace class action trends for employers to heed in 2013:

1. The Supreme Court’s opinions in Wal-Mart and 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.
2. The U.S. Equal Employment Opportunity Commission (EEOC) garnering a four-fold increase in recoveries against employers for its systemic discrimination investigations. Government enforcement activity is expected to accelerate even more in 2013.
3. 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 10 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.
4. 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.
5. Wage and 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.
6. The 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 set of challenges for employers.

The report is available at: www.seyfarth.com/publications/Ninth-Annual-Workplace-Class-Action.