Plaintiffs attorneys win more class certification rulings in 2018

Plaintiffs attorneys were more successful in obtaining class certifications in wage and hour cases last year compared with 2017, while government enforcement litigation increased, says a law firm report.

The plaintiffs bar “scored exceedingly well in securing class certification rulings in 2018” compared with 2017, according to the 15th Annual Workplace Class Action Litigation Report, issued Tuesday by Chicago-based law firm Seyfarth Shaw LLP.

The report said of the 273 wage and hour certification decisions in 2018, plaintiffs won 196 of 248 conditional certification rulings, or 79%, and lost 13 of 25 decertification rulings, about 52%. 

This compares with 2017’s 257 wage and hour certification decisions, where plaintiffs won 170 of 233 conditional certificating rulings, about 73%, and lost 15 of 24 decertification rulings, about 63%. 

“In sum, employers lost more first stage conditional certification motions in 2018, and saw a reduction of their odds – a decrease of 11% – of fracturing cases with successful decertification motions,” said the report.

The report also said filings and settlements of government enforcement litigation in 2018 “did not reflect a head-snapping pivot from the ideological pro-worker outlook of the Obama Administration to a pro-business, less regulation/litigation viewpoint of the Trump Administration.” 

The U.S. Equal Employment Opportunity Commission alone, said the report, brought 199 lawsuits in 2018 compared with 184 in 2017 and 86 in 2016. 

The report said one explanation for this is the time lag between Obama-appointed enforcement personnel leaving their posts and Trump-appointed personnel taking charge.

The report said also the #MeToo movement “is fueling employment litigation issues in general and workplace class action litigation in particular.” It has “raised the level of awareness of workplace rights and emboldened many to utilize the judicial system to vindicate those rights.” 

It said 74% of the EEOC’s filings under Title VII of the Civil Rights Act of 1964 in 2018 targeted sex-based discrimination, compared with 65% in 2017.

The report said another significant development was the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis, which upheld the legality of class action waivers in mandatory arbitration agreements.

“It is already having a profound impact on the prosecution and defense of workplace class action litigation, and in the long run, Epic Systems may well shift class action litigation dynamics in critical ways,” said the report.