Duane Morris Class Action Review - 2023 - Report - Page 220
won conditional certification 180 times, or at a rate of 82%, while 39 motions were
denied. This compares favorably to the statistical totals in 2021, when the plaintiffs’ bar
won 84% of first stage conditional certification motions, and 2020, when the plaintiffs’
bar secured a success rate of 81% of such motions.
Regarding decertification motions, employers achieved approximately the same
success in 2022 as they did in 2021. In 2022, 18 decertification decisions were issued,
and plaintiffs prevailed in 9 cases while defendants achieved decertification in 9
decisions. Plaintiffs’ success rate of 50% is on par with their 2021 success rate of 53%,
as compared to 58% in 2020.
The top jurisdictions for FLSA-related litigation, and those perceived as most plaintifffriendly, are the Second, Ninth, and Sixth Circuits. While the Sixth Circuit has seen
consistent increases in recent years, it may join the Fifth Circuit in abandoning the twostep certification process, which allows the plaintiffs’ bar to conditionally certify a
collective action with ease and exert substantial settlement leverage with minimal work
and expense. Should the Sixth Circuit do so, it would likely lead to a precipitous decline
in FLSA cases filed in that jurisdiction.
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Duane Morris Class Action Review – 2023
