Duane Morris Class Action Review - 2023 - Report - Page 174
This refined focus is likely to rest on smaller classes (e.g., confined to a single
employment site or operations in one state) with “tighter” certification requests as
opposed to nationwide, mega-classes. In attacking employment practices, they
generally confine their claims to a discrete practice - such as, for example, a hiring
screen (e.g., a criminal background or credit history check) - that impacts all class
members in a similar fashion.
Class certification is akin to the “holy grail” in employment discrimination class action
litigation. Certification of any aspect of a class action invests plaintiffs’ counsel with
significant leverage, which often leads to settlement. As a result, another innovation by
the plaintiffs’ bar post-Wal-Mart entails pursuit of hybrid or parallel class certification
theories where injunctive relief is sought under Rule 23(b)(2), and/or issue certification
(on a discrete issue such as liability) is pursued under Rule 23(c)(4).
The result of these strategies is a calculus of “aiming small” to certify a piece of the
litigation and then rely on the fee-shifting nature of employment discrimination laws to
pressure companies into class-wide settlements.
These efforts are typically coupled with pursuit of “liability only” class certification
motions, while deferring damages issues and pressuring corporate defendants to settle
due to the transaction costs of individualized mini-trials on damages.
In sum, employment discrimination class action litigation remains a high-stakes arena.
The playbook of the plaintiffs’ class action bar continues to press the legal envelope in
an effort to secure workplace changes and obtain substantial settlements.
II.
Significant Rulings In Employment Discrimination Class Actions
In 2022
In 2022, plaintiffs’ lawyers achieved solid results in their efforts to secure class
certification in employment discrimination cases. Overall, plaintiffs won a distinct
majority of class certification motions in employment discrimination cases.
In 15 class certification decisions over the past year, plaintiffs prevailed in eight cases
and lost seven cases. This past year’s class certification conversion rate of 53 percent
outpaced conversion rates in previous years.
173
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
