These numbers no doubt flow from the different standards by which courts in differentcircuits evaluate motions for conditional certification and decertification and, in turn, thelikelihood of plaintiffs’ success on such motions in these areas. Various factorsdiscussed in this Review could impact these trends in 2023. If, for instance, the SixthCircuit joins the Fifth Circuit in abandoning the two-step certification process, andthereby increases the time and expense of gaining a conditional certification order, itmay lead to a reshuffling of the deck in terms of where plaintiffs seek to pursue cases.Trend # 5 – Government Enforcement In 2022 Took A Back SeatOver the past year, the Biden Administration continued to roll out changes on severalfronts as it aimed to expand the rights, remedies, and procedural avenues available toworkers. During 2022, such efforts fueled litigation. With its decision in West Virginia v.Environmental Protection Agency, 142 S.Ct. 2587 (2022), the U.S. Supreme Courtimposed another hurdle to agency rule-making. Meanwhile, government enforcementlitigation activity took a back seat.Over the past two years, the U.S. Department of Labor, in particular, has continued toroll out worker-friendly rules that could have a cascading impact on workplace classactions, including rules designed to wipe out the pro-business policies of the Trump22© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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