January 10, 2018

The Trump administration’s expected pullback from big-ticket enforcement litigation will fuel more private lawsuits from plaintiffs firms seeking to “fill the void,” according to a Seyfarth Shaw LLP report issued Wednesday that also found the value of the 10 top workplace class action settlements reached a record $2.7 billion last year.

In 2017, the U.S. Equal Employment Opportunity Commission more than doubled the number of merits cases it filed from the prior year, including an increased number of high-impact cases alleging systemic violations, according to the management-side law firm's annual Workplace Class Action Litigation report.

The U.S. Department of Labor’s Wage and Hour Division recovered more than $270 million in back pay for hundreds of thousands of workers last year, the report said. Agency figures show that is $4 million increase from 2016.

Overall, the report found that the top 10 settlements in government enforcement litigation increased nearly tenfold from $52.3 million in 2016 to over $485 million in 2017.

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But while plaintiffs side attorneys agree that the federal agencies are likely to pull back on their current enforcement posture, they say it remains to be seen just how many cases that fall through the agency cracks they will be able to effectively take on.

While he hopes the end result turns out otherwise, Joseph Sellers of Cohen Milstein Sellers & Toll PLLC told Law360 on Wednesday that if past is prologue, the Trump administration will devote fewer resources to enforcement and litigation, particularly when it comes to pursuing cases involving patterns and practices of potentially illegal behavior.

Although Sellers said the plaintiffs side of the bar does not tailor its work to what an administration is or isn’t doing, a reduction in federal resources for enforcement activity “is going to place a greater demand” on the plaintiffs bar, which he says “is already pretty busy.”

“There is no shortage in interest and will, but the question is: How much more can the plaintiffs bar take on?” Sellers said, noting the impact will “be most acute” on costly pattern and practice cases and the ability for those cases to be brought.

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[When asked about the decertification of class cases]

Sellers, however, believes that the U.S. Supreme Court and by extension lower courts “have been more exacting and demanding” over the past 15 years as to the standards for winning class certification.

For plaintiffs attorneys, he said, the certification now occurs later in the case and the cost of it “is now very close to what is required to prove liability."

“It’s a larger undertaking and there are more opportunities along the way for employers to erect obstacles for certification,” Sellers said. “I don’t think there’s any magic formula for blocking certification.”

The full article can be read here.