This refined focus is likely to rest on smaller classes (e.g., confined to a singleemployment site or operations in one state) with “tighter” certification requests asopposed to nationwide, mega-classes. In attacking employment practices, theygenerally confine their claims to a discrete practice - such as, for example, a hiringscreen (e.g., a criminal background or credit history check) - that impacts all classmembers in a similar fashion.Class certification is akin to the “holy grail” in employment discrimination class actionlitigation. Certification of any aspect of a class action invests plaintiffs’ counsel withsignificant leverage, which often leads to settlement. As a result, another innovation bythe plaintiffs’ bar post-Wal-Mart entails pursuit of hybrid or parallel class certificationtheories 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 thelitigation and then rely on the fee-shifting nature of employment discrimination laws topressure companies into class-wide settlements.These efforts are typically coupled with pursuit of “liability only” class certificationmotions, while deferring damages issues and pressuring corporate defendants to settledue 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 inan effort to secure workplace changes and obtain substantial settlements.II.Significant Rulings In Employment Discrimination Class ActionsIn 2022In 2022, plaintiffs’ lawyers achieved solid results in their efforts to secure classcertification in employment discrimination cases. Overall, plaintiffs won a distinctmajority of class certification motions in employment discrimination cases.In 15 class certification decisions over the past year, plaintiffs prevailed in eight casesand lost seven cases. This past year’s class certification conversion rate of 53 percentoutpaced conversion rates in previous years.173© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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