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Seyfarth Shaw class action report: Wage-hour settlements top exposure for companies in 2018

Seyfarth Shaw LLP has released its 14th annual edition of the Workplace Class Action Litigation Report, a complete guide to workplace-related complex litigation, which reveals wage and hour litigation to be the area of greatest exposure for corporations as we move into 2018. In this year’s report, Seyfarth analyzed a record number of 1,408 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes from 2017 and emerging litigation trends facing U.S. companies in 2018. This is the largest edition to date, coming in at 885 pages.

The 2018 report analyzes rulings from all state and federal courts—including private plaintiff class and collective actions, and government enforcement actions—in the substantive areas of Title VII, the ADEA, the FLSA, ERISA, and CAFA. It also features chapters on EEOC pattern or practice rulings, state law class certification decisions, and non-workplace class action rulings that impact employers. The Report also analyzes the leading class action settlements for 2017 for employment discrimination, wage and hour, ERISA class actions, and statutory workplace laws, as well as settlements of government enforcement actions, both with respect to monetary values and injunctive relief provisions.

Wage and hour settlements. “When one delves into the most striking aspects of this year’s class action litigation in state and federal courts, the growth in wage and hour settlements, which have risen the past two years to a combined value of 1.2 billion dollars, is the number one exposure for corporations heading into 2018,” said Seyfarth partner and author of the Report, Gerald L. Maatman, Jr. “The twists and turns of the transition in the White House also created one of the most surprising and dramatic spikes in government enforcement litigation that we’ve ever seen.”

Key trends. The Report details the four key employment litigation trends for corporations in 2018:

  • Settlements Skyrocket: The monetary value of the top workplace class action settlements shot up nearly $1 billion dollars, rising by over $970 million to reach an all-time record high of $2.72 billion in 2017.
  • Employers Continue to Improve Batting Average in Defeating Class Certification: Evolving case law precedents and new defense approaches resulted in better statistical outcomes for employers in opposing class certification requests for the second straight year. In one of the most active categories, wage and hour litigation, employers won 63 percent of decertification rulings, a success rate up nearly 20 percent from 2016.
  • Government Enforcement Litigation Ballooned: With the federal government in transition with a new administration, 2017 results were heavily influenced by Obama Administration holdover policies and personnel, as government enforcement litigation increased. EEOC filings more than doubled, rising to 184 lawsuits in 2017 from 86 the previous year, while the top government settlements spiked nearly ten-fold—from $52.3 million in 2016 to $485.25 million in 2017. This balloon is expected to burst in 2018 as the Trump Administration settles in further, pulling back these policies and positions; yet, at the same time, it is expected that the private plaintiffs’ class action bar will step up their lawsuit filings and “fill the void.”
  • U.S. Supreme Court Poised to Reshape Employment and Class Action Landscape: After issuing several key decisions in 2017 that were arguably more pro-business and pro-employer than in the past, the Supreme Court could profoundly change the class action playing field in 2018 with its highly anticipated ruling on the legality of workplace arbitration agreements with class action waivers.