Presenting a live 90 ‐ minute webinar with interactive Q&A FLSA Collective Action Discovery Strategies Discovery Tactics Before and After Conditional Certification of the Opt ‐ In Class WEDNES DAY, NOVEMBER 2, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f William C. Martucci, Partner, Shook Hardy & Bacon , Washington, D.C. ang, Partner , Cohen Milstein Sellers & Toll , Washington, D.C. Jenny R. Y Kristen A. Page, Partner, Shook Hardy & Bacon , Kansas City, Mo. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Strafford Publications Discovery FLSA Collective Action Tactics Before and After Disco er Strategies Discovery Strategies Conditional Certification November 2, 2011
Program Outline Program Outline I. Brief FLSA Foundational Overview II. Discovery Limitations & Strategies for FLSA Actions A. A Starting Place – The Dukes Impact B. Strategy Approaches, the Spectrum and Shaping C. Before Conditional Certification D. After Conditional Certification III. Resolving Discovery Disputes IV IV. Discovery Considerations for Summary Judgment and Other Discovery Considerations for Summary Judgment and Other Procedural Mechanisms V. Discovery Considerations for Trial y 6
Questions We’ll Consider Questions We ll Consider • How does the landmark Dukes v. Wal ‐ Mart decision impact p strategic considerations for discovery in FLSA cases? • What are the most common discovery challenges counsel face when litigating FLSA collective action lawsuits—from initiation h liti ti FLSA ll ti ti l it f i iti ti through resolution of the case? • What strategies have been effective for counsel in wage and g g hour collective action litigation for obtaining essential information in the least expensive manner? • What is the scope of evidence that is discoverable before and Wh i h f id h i di bl b f d after conditional certification of the collective class and how can you limit or best manage discovery? 7
Brief FLSA Foundational Overview SECTION 1 SECTION 1
FLSA Overview FLSA Overview • The FLSA authorizes actions to recover damages for violation of the Act’s minimum wage and overtime provisions and to enforce the retaliation prohibition. 29 U.S.C. §216(b) and (c). • FLSA actions can be “individual” or “collective.” If collective, employees “opt in” to join the case. Those who do not opt ‐ in are not bound by the result and can pursue their own lawsuits. • There is a two ‐ year statute of limitations, which can be extended to three years for violations that are “willful.” 29 U.S.C. §255(a). • Most courts apply a “two ‐ tier” framework – (1) notice phase – whether to conditionally certify the action (lenient standard); and (2) decertification y y ( ) ( ) phase (more stringent standard). • The focus is on whether sufficient evidence exists to suggest that the named plaintiffs and putative class members are “similarly situated.” p p y 9
“Similarly Situated” Key Factors Similarly Situated Key Factors The employment and factual settings of the plaintiffs p y g p Evidence of a company ‐ wide policy The various defenses available to defendants Considerations of fairness, procedure and manageability 10
Typical FLSA Case Sequence Typical FLSA Case Sequence 1. Filing 2. Preliminary, limited discovery 3. Early motion for conditional certification 4. If conditionally certified, broadened discovery 5. Potential motion to decertify 6. Resolution – dismissal, settlement or trial 11
Discovery Contours for FLSA Actions Discovery Contours for FLSA Actions The “certification” stage generally determines the scope: g g y p • Before conditional certification – more limited • After conditional certification – more robust (but often still quite limited in light of “representative” context) 12
Discovery Limitations & Strategies SECTION 2 SECTION 2
A Starting Place – The Dukes Impact Discovery Limitations Discovery Limitations & Strategies
Overview of Dukes and the Landscape Overview of Dukes and the Landscape • The Dukes plaintiffs alleged unequal pay and promotional p g q p y p opportunities for women at Wal ‐ Mart • Prior to Dukes , litigation trend was to certify classes based on company ‐ wide statistics, expert views, and anecdotal id t ti ti t i d d t l evidence • Post ‐ Dukes , focus is shifting back to employer policies and , g p y p decisions – reinforcing that certification requires a “rigorous analysis” and issues common to all class members 15
The Dukes Decision Itself The Dukes Decision Itself • Claims for individualized relief, like back pay sought by the , p y g y Dukes plaintiffs, cannot be brought under FRCP 23(b)(2) • “Trials by formula” are prohibited • Commonality prong not satisfied 16
Its True Significance? Its True Significance? • Defendants argue Dukes tightens the standards and signals g g g the decline of the class action remedy across the board • Plaintiffs argue the Dukes’ result came about through application of traditional class action standards to a very li ti f t diti l l ti t d d t challenging set of facts in a large ‐ scope context, with relevance only to discrimination cases • The truth is that Dukes’ significance remains to be seen 17
Key Impact Areas from Dukes Key Impact Areas from Dukes Commonality Expert Testimony Trial by Formula Subjectivity • Need “common • “Significant • Employer has the • Allowing answers,” not just proof” required right to raise discretion by local common common to bridge the to bridge the individual individual supervisors in supervisors in questions wide gap affirmative decisions should between an defenses under itself raise no • Must show the individual’s claim Title VII inference of “glue” holding and the existence discrimination the alleged the alleged • “Trial by formula” Trial by formula of a class of reasons for all the is not an • Showing invalidity people who have decisions acceptable of one manager’s suffered the same together replacement for use of discretion injury that right does nothing to • Application of demonstrate Daubert at invalidity of certification stage another’s 18
Does Dukes Concern FLSA Cases? Does Dukes Concern FLSA Cases? • The Dukes litigation did not involve the FLSA or the §216(b) g § ( ) analysis • Dukes only concerned Rule 23 certification standards • Traditionally, courts have distinguished between Rule 23’s “commonality” standard and § 216(b)’s “similarly situated” standard • Nonetheless, there is a lot of chatter about the potential application of Dukes to FLSA actions • And the courts are starting to weigh in – very preliminary, yet still instructive, at this point 19
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