Archives: Conditional Certification

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District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

By Greg Mersol on July 1, 2021 Posted in Conditional Certification, FLSA

Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit? That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, … Continue Reading

A Lawful Job Description Doesn’t Support Conditional Certification

By Greg Mersol on June 5, 2020 Posted in Conditional Certification

Virtually every brief seeking conditional certification will point to an employer policy that allegedly ties the collective or class together. But as a growing number of courts are recognizing, a uniform policy is not sufficient; rather, the plaintiffs must point to some classwide policy or practice that is actually illegal. That was the issue in … Continue Reading

District Court Denies Conditional Certification of Off-the-Clock Case Despite Bad Emails

By Greg Mersol on June 3, 2016 Posted in Conditional Certification, Wage and Hour

“As far as overtime, you (like I) can only bill a 40hr work week even though we put in like 60hrs at times.” This isn’t exactly the email you want to see if you are defending an off-the-clock wage and hour claim, but it was one of several addressed this week by the District of … Continue Reading

New York District Court Denies Conditional Certification of Second FLSA Collective Action

By Greg Mersol on August 27, 2015 Posted in Collective Action, Conditional Certification

Because of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is notable not only for the fact that the court denied conditional certification, but also that it actually examined the events … Continue Reading

Court Sends Plaintiffs Back to the Locker Room Unhappy When It Denies Conditional Certification

By Jeffrey Vlasek on September 29, 2014 Posted in Conditional Certification, FLSA

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 … Continue Reading

Minnesota District Court Rejects Nationwide Scope and Conditionally Certifies Class of One Chipotle Store

By Greg Mersol on September 18, 2014 Posted in Conditional Certification, FLSA, Retail

Employees win most motions for conditional certification under the FLSA, with many courts declining to perform a probing analysis at that stage. A recent case from the District of Minnesota, in which the court still applied a deferential standard, had the unusual result that the court granted conditional certification as to a single Chipotle store … Continue Reading

New York District Court Conditionally Certifies Class of Interns

By Greg Mersol on August 20, 2014 Posted in Collective Action, Conditional Certification, FLSA

A Blog About Bloggers Have you read any of the following lately? “Chinese Government Fans the Flames of the Ebola Zombie Rumors” “Arrested for Marijuana, Jackie Chan’s Son Could Face Execution” “Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?” These are all recent headlines from various blogs run by Gawker Media … Continue Reading

Federal Court In New York Decertifies FLSA Collective Action Of 1,000 Hospital Workers Challenging Auto-Deduct Policy

By Gilbert Brosky on June 23, 2014 Posted in Conditional Certification, FLSA

Over the past several years, medical providers in particular have been beset by wage and hour claims arising out of so-called “auto-deduct” policies. A recent case, arising out of the Eastern District of New York, a jurisdiction that has generally been friendly to plaintiffs in this arena, suggests that such claims may ultimately fail. In … Continue Reading

New York District Court Grants Summary Judgment Against FLSA Class of Insurance Claims Adjusters

By Greg Mersol on November 25, 2013 Posted in Conditional Certification, FLSA

In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern: file the case, do minimal discovery, move for conditional certification under the first-tier lenient standard, and then settle before decertification. While frustrating for employers, it can be, and often is, a … Continue Reading

Florida District Court Denies Conditional Certification in Off-the-Clock Case

By Greg Mersol on July 27, 2012 Posted in Conditional Certification, Wage and Hour

Courts often cite the generally lenient standard for conditional certification, but that standard, like any other, has its limits. In Holmes v. Quest Diagnostics, Inc.pdf., Case No. 11-80567 (S.D. Fla. June 14, 2012), the plaintiffs sought to represent a class of phlebotomists for Quest Diagnostics nationwide. They claimed that the company essentially required off-the-clock time … Continue Reading

Court Denies Conditional Certification of FLSA Class of Satellite Dish Technicians

By Greg Mersol on June 16, 2011 Posted in Class Certification, Conditional Certification, FLSA, Wage and Hour

It has been a good few weeks for employers in the satellite dish industry. Just last week, we wrote of the case of Espenscheid v. Directsat USA, LLC.pdf, Case No. 09-cv-625-bbc (W.D. Wis. May 23, 2011), in which the court decertified a class of satellite dish technicians only days before trial. In that case, the court, … Continue Reading

Another Court Denies Conditional Certification of a Putative FLSA Class

By Greg Mersol on March 14, 2011 Posted in Conditional Certification, FLSA

The mantra uttered by plaintiffs in FLSA cases is the “fairly lenient” standard used by many courts to determine conditional certification. As we have written before, this standard may give the plaintiffs an early victory, but may not really benefit either side as such claims are frequently decertified, suggesting that the original decision to certify … Continue Reading

Supreme Court Accepts Certiorari In Dukes v. Wal-Mart

By Greg Mersol on December 8, 2010 Posted in Conditional Certification, Rule 23

We’ve already written twice now on the case of Dukes v. Wal-Mart Stores, 605 F.3d 571 (9th Cir. 2010), most recently to argue (August 27, 2010) that the Supreme Court should accept certiorari and reverse. The Supreme Court has now accepted cert., but has done so in a manner that leaves the scope of the … Continue Reading

Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard

By Gilbert Brosky on November 8, 2010 Posted in Class Certification, Conditional Certification, FLSA, Nonexempt Status, Overtime Claims, Rule 23, Wage and Hour

On October 27, 2010, the Second Circuit affirmed a federal court’s refusal to certify a proposed class of Hertz Station Managers allegedly denied overtime under New York law. (Myers v. Hertz Corp., No. 08-1037 (2d Cir. Oct. 27, 2010)). In doing so, the court addressed the potential difficulties of certifying Rule 23 overtime exemption cases … Continue Reading

Another Court Decertifies An FLSA Class

By Greg Mersol on October 18, 2010 Posted in Conditional Certification, FLSA, Nonexempt Status, Wage and Hour

As we wrote on August 31, many plaintiffs and defendants assume, if often implicitly, that conditional certification of an FLSA class is tantamount to a win for the plaintiffs. This is so even though conditionally certified classes are frequently decertified later in the case. In fact, conditional certification, despite having the name “certification” in its … Continue Reading

Sanctions Recommended For Opt-In Plaintiffs In FLSA Collective Action

By Todd Dawson on October 14, 2010 Posted in Class Certification, Conditional Certification, FLSA, Wage and Hour

“Hey, Judge, You Don’t Understand……I Just Wanted The Money!” About two dozen people who opted into an FLSA collective action in Nevada federal court may soon be reminded that the pinch is usually in the fine print. Magistrate Judge Peggy A. Leen recommended sanctions against these individuals after they refused to respond to discovery. In … Continue Reading

Preliminary Certification Is Not The End

By Greg Mersol on August 31, 2010 Posted in Class Certification, Conditional Certification

Many courts today use the two-step procedure described in Lusardi v. Xerox Corp., 99 F.R.D. 89 (D.N.J.1983), to decide whether to certify potential classes under section 16(b) of the Fair Labor Standards Act. Under that procedure, the court the court looks at certification twice, first before much discovery is done, and again at the close … Continue Reading