The Most Feared Battle Waged in Litigation

The following is a primer on the “leniency” standard for FLSA actions, and its interplay with Rule 23 guidelines. Why do we need a primer? Well, if one were so disposed as to survey a sufficient number of well-regarded class action practitioners, the result of that inquiry would most assuredly be a virtual consensus that the quest for class certification is, to a targeted defendant, the most feared battle waged in litigation. This is particularly true in actions alleging overtime exemption misclassifications where, post-certification, the primary remaining issue of liability teeters on the defendant's ability to prove the exemption as an affirmative defense.

In California state courts, where we have litigated many such wage and hour class actions, the certification process is well established, as partly evidenced by a flurry of recent state trial court certifications. Yet while California State court opinions, such as the First District's decision in Bell v. Farmers Ins. Exchange, 87 Cal. App. 4th 805, 105 Cal.Rptr.2d 59 (2001), purported to look fondly toward the federal class action procedures articulated in FRCP Rule 23 for guidance, the certification prerequisites of near-identical wage and hour claims under the federal Fair Labor Standards Act (29 U.S.C ' 216) and the opt-in scheme for claims brought there under vary significantly between federal circuits and even among their respective district courts. Moreover, even those Rule 23 and state court practitioners who are comfortable navigating the waters of these varied legal standards may be disenchanted with the notion of pursuing wage and hour actions under Section 216(b) procedures once they grasp the enormous risk associated with pursuing costly and time-consuming class litigation, only to learn that few putative class members wish to join the action and/or that the victory of “certification” may quickly be hollowed by the near-assured subsequent filing by the defendant of a more-factually comprehensive, and frequently successful, motion for decertification.