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CHICAGO - Leading employment law firm Seyfarth Shaw LLP has issued its annual Workplace Class Action Litigation Report, covering a charged national landscape of "bet the company" employment disputes fueled by an aggressive plaintiffs' bar, invigorated federal and state enforcement regimes, a sluggish economic recovery, and several groundbreaking rulings by the U.S. Supreme Court in 2011 that are certain to reverberate in the year ahead and beyond, the firm said in a press release.
Seyfarth notes that the Supreme Court's decision in Wal-Mart Stores v. Dukes, handed down last June, has already been cited more than 260 times in federal and state court opinions, and AT&T Mobility v. Concepcion 215 times - remarkable figures for rulings less than a year old. Dukes, which established a new standard for certifying class actions, and Concepcion , which held that federal arbitration law supersedes limitations imposed by individual states, opened the floodgates to a wave a new case law in class actions, which will continue to evolve in the coming year and impact litigants for years to come.
Released this week, Seyfarth's 8th annual Workplace Class Action Litigation Report examines the theoretical and strategic uncertainties stemming from the Supreme Court's employment law rulings in 2011, and the challenges they pose for companies and their defense counsel. The new report is the most comprehensive yet, examining 976 class action decisions rendered in the past 12 months by federal and state courts, including private plaintiff and government enforcement actions. The number of case rulings covered by Seyfarth climbed 15 percent over last year's total of 849 - a direct result of issues raised by Dukes and Concepcion that have loomed over workplace litigation since those landmark decisions last spring.
Seyfarth's Report remains the sole compendium dedicated exclusively to labor and employment class action litigation in the United States. Regarded as "the definitive source on employment class action litigation" (EPLiC Magazine, Spring 2011), it has become the "go-to" research and resource guide for businesses and corporate counsel facing complex litigation. Corporate counsel routinely depict the prospect of large workplace class-actions as especially worrisome for companies, as well as a significant burden for in-house legal budgets.
As it has since its first edition in 2004, the report is authored by Seyfarth Shaw partner Gerald L. Maatman Jr., co-chair of the firm's class action defense group and co-author of one of two amicus briefs submitted by Seyfarth to the Supreme Court in Dukes. Maatman also led a number of his own winning class action defense strategies in 2011, including a historic turn in a lawsuit brought by the EEOC in which he won the right to depose EEOC officials about the agency's own personnel practices.
Click here to link to the introductory chapter on trends in the 2012 edition of the Workplace Class Action Litigation Report.
The report makes clear that 2011 workplace collective filings rose on nearly every front, from Fair Labor Standards Act and ERISA claims to government enforcement actions, even as other prime litigation theaters such as shareholder and securities actions were largely static. The Equal Employment Opportunity Commission (EEOC) set a new record with nearly 100,000 new discrimination filings against private-sector employers - an expression, the report notes, of challenging economic conditions as well as the Obama Administration's emphasis on aggressive enforcement. These EEOC charges "will become ripe for initiation of lawsuits in 2012," Maatman says.
Reflecting what the report calls the EEOC's "laser focus on high-impact litigation," the agency in 2011 launched 580 systemic investigations involving large groups of alleged victims - a 24 percent spike over 2010.
Maatman notes that employers should prepare themselves for a particular irony in light of the essentially favorable Dukes ruling.
"One of the inevitable consequences of Dukes is not a decrease in the number of workplace class actions, but a likely increase - the wrinkle being that the new difficulty in achieving nationwide certification is forcing the plaintiffs' class action bar into seeking multiple state or perhaps regional class cases to improve the chances of certification. Whatever the overall dimensions of class action filings, one certainty is that plaintiffs' attorneys will be seeking a new template for certifying workplace class cases for the purpose of negotiating large settlements with defendants."
He continues, "As for the EEOC, we expect it to continue pursuing its priority of bringing widespread, high-stakes pattern or practice lawsuits, and pursuing novel litigation issues and industry leaders for maximum impact. Despite a number of judicial sanctions levied by federal courts against the EEOC in 2011 for exceeding the bounds of good faith in prosecuting some of its lawsuits, the EEOC does not seem to have been deterred at all from maintaining a white-hot level of enforcement."
The 2012 Workplace Class Action Litigation Report highlights several significant developments and emerging trends whose effects are likely to be felt throughout the new year:
"In terms of workplace litigation, the continuing trend is greater aggressiveness by plaintiffs' lawyers and government attorneys in bringing large, complex cases against employers," Maatman says. "There has been a significant re-shuffling of the deck as a result of landmark Supreme Court rulings in 2011; the plaintiffs' bar has quickly adopted new strategies, which calls for equal agility and innovation on the part of companies and defense counsel. Given the pervasiveness of collective and class actions in corporate America, and thus the enormous financial stakes, employers are best served by pro-active planning to determine their potential class action vulnerabilities and prepare strategies to avert full-blown class action litigation."
Seyfarth Shaw has more than 750 attorneys in 10 offices throughout the United States, including Atlanta, Boston, Chicago, Houston, Los Angeles, New York, Sacramento, San Francisco and Washington, D.C., as well as internationally in London. Seyfarth Shaw provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. The firm's clients include more than 300 of the Fortune 500 companies, and the practice reflects virtually every industry and segment of the economy. For more information, visit www.seyfarth.com.
Click here to request a copy of the report.