In January 2014, NFL Commissioner Roger Goodell raised eyebrows (and ire) when he announced that the league was considering eliminating the extra point after a touchdown. As Goodell put it, “the extra point is almost automatic,” given that it is kicked from the twenty yard line, and it is exceptionally rare that a professional NFL kicker would miss at such a short distance.
The same can be said for recent decisions regarding conditional certification in FLSA lawsuits. As courts and plaintiffs have frequently pointed out, the first stage of the near-universally applied Lusardi FLSA certification requires that plaintiffs meet only a “lenient” evidentiary standard. While plaintiffs may try to argue that conditional certification is as “automatic” as an extra point, that may not always be the case. Just as the Cleveland Browns proved when they botched the play on September 14, 2014, an extra point after a touchdown is never “automatic.” And as much as no one wants to be compared to the Cleveland Browns, the recent, related cases of Pullen v. McDonald’s Corp., case no. 5:14-cv-11081 and Wilson v. McDonald’s Corp., case no. 2:14-cv-11082 in the Eastern District of Michigan, both managed to miss the “automatic” extra point at the first stage of certification. Unlike the Browns’ play, however, the court’s reasoning was straight-forward and logical. Continue Reading