By: Jennifer A. Riley
Duane Morris Takeaway: Although courts issued fewer decisions on motions for class certification in 2024 as compared to 2023, the plaintiffs’ class action bar obtained certification at a more consistent rate across all substantive areas, suggesting that plaintiffs are being more selective in their investments and the cases they pursue through class certification.
Watch Duane Morris partner Jennifer Riley discuss the consistent certification rates in 2024 and what it means for 2025 in the video below:
In 2024, courts issued rulings on 432 motions for class certification, a decrease from 2023, when courts issued rulings on 451 motions for class certification. Of those, courts granted motions for class certification at a lower rate. Courts granted 272 of those motions, for a certification rate of approximately 63%. In 2023, by contrast, courts granted 324 motions for class certification, for a certification rate of approximately 72%.
Although the certification rate overall was lower, plaintiffs obtained certification at a more consistent rate across substantive areas, from a low of 33% in the RICO area, to a high of approximately 86% in the WARN areas. By contrast, in 2023, the numbers varied more substantially across substantive areas, from a low of 14% in the data breach area, to a high of 97% for securities fraud.
Plaintiffs Continued To Certify Cases At High Rates
In 2024, plaintiffs succeeded in certifying class actions at a high rate. Across all major types of class actions, courts issued rulings on 432 motions to grant or to deny class certification in 2024. Of these, plaintiffs succeeded in obtaining or maintaining certification in 272 rulings, an overall success rate of approximately 63%.
The numbers show that, when compared to 2023, plaintiffs filed fewer motions for class certification in 2024, and succeeded in certifying fewer classes in 2024.
By comparison, in 2023, courts issued rulings on 451 motions to grant or deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 324 rulings, with an overall success rate of 72%. In 2022, courts issued rulings on 335 motions to grant or to deny class certification, and plaintiffs succeeded in obtaining or maintaining certification in 247 rulings, an overall success rate of nearly 74%.
In 2024, the number of motions that courts considered varied significantly by subject matter area, and the number of rulings varied across substantive areas. The below chart summarizes these results in each of the key areas of class action litigation (sorted by plaintiffs’ success rate).
The plaintiffs’ bar obtained the highest rates of success in WARN Act, wage & hour, securities fraud, and antitrust class actions. In cases alleging claims for violation of the WARN Act, plaintiffs succeeded in obtaining orders certifying classes in six of seven rulings issued during 2024, a success rate of 85.7%. In wage & hour class and collective actions, plaintiffs succeeded in obtaining first-stage certification orders in 124 of 156 rulings issued during 2024, a success rate of 79.5%. In cases alleging antitrust violations, plaintiffs succeeded in obtaining orders certifying classes in 15 of 21 rulings issued during 2024, a success rate of 71.4%.
Although the certification rate overall was lower, as discussed above, moving down to 63% in 2024 from 72% in 2023, plaintiffs obtained certification at a more consistent rate across substantive areas. In 2024, plaintiffs succeeded in certifying cases alleging WARN Act violations at a rate of 85.7%, their highest rate of success among substantive areas. Plaintiffs succeeded in certifying cases alleging RICO violations at a rate of 33.3%, their lowest rate of success across substantive areas. Compared to 2023, these numbers reflect less variance across substantive areas.
In 2023, plaintiffs succeeded in certifying cases alleging securities fraud at a rate of 97.2%, their highest rate of success among substantive areas. Plaintiffs succeeded in certifying cases alleging data breach claims at a rate of 14.3%, their lowest rate of success across substantive areas.
The year over year compression suggests that plaintiffs were more selective during 2024 relative to the cases in which they sought class certification, particularly at the low end.
In 2024, for example, the number of rulings on motions for class certification in the data breach area dropped to four, a decrease of 42.9%, but plaintiffs fared better on those four, going two for four, for a success rate of 50.0%.
Courts Issues More Rulings In FLSA Collective Actions Than In Any Other Area Of Law
In 2024, courts issued more certification rulings in FLSA collective actions than in any other type of case. Many courts historically have applied a more lenient standard to such motions, allowing plaintiffs to increase the size of their cases with comparatively low investment, contributing to the number of filings in this area.
Overall, courts issued 171 rulings. Of these, 156 addressed motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions for decertification of collective actions. Of the 167 rulings that courts issued on motions for conditional certification, 125 rulings favored plaintiffs, for a success rate of nearly 75%.
Plaintiffs’ success rate at the conditional certification stage outpaced their performance from 2023. In 2023, courts issued 183 rulings. Of these, 165 addressed motions for conditional certification of collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions for decertification of collective actions. Of the 167 rulings that courts issued on motions for conditional certification, 125 rulings favored plaintiffs, for a success rate of nearly 75%.
The results plaintiffs achieved in 2024 are more similar to the results they obtained in 2022, during which courts issued rulings on 236 motions. Of these, 219 addressed motions for conditional certification of collective actions, and 18 addressed motions for decertification of collective actions. Of the 219 rulings that courts issued on motions for conditional certification, 180 rulings favored plaintiffs, for a success rate of 82%.
Although success rates stayed high, and climbed closer to the rate observed in 2022, the overall number of rulings declined. This phenomenon likely reflects the impact of the so-called Swales-Clark movement. Until 2021, courts almost universally applied a two-step process to certification of FLSA collective actions. At the first stage, courts required a plaintiff only to make a “modest factual showing” that he or she was similarly-situated to others, and plaintiffs often met such burden at the outset of litigation by submitting declarations from a limited number of potential collective action members.
At the second stage, courts conducted a more thorough examination of the evidence to determine whether in fact the plaintiff was similarly-situated to others and the court manageably could try the case on a collective basis.
Over the past few years, however, courts have started taking a fresh look at the two-step process and whether it comports with the FLSA. Federal appellate courts in two circuits – the Fifth Circuit and Sixth Circuit – along with various district courts answered that question in the negative.
In 2021, the Fifth Circuit in Swales, et al. v. KLLM Transport Services, LLC, 985 F.3d 430, 436 (5th Cir. 2021), rejected the two-step approach to evaluating collective action certification, holding instead that district courts should “rigorously scrutinize the realm of ‘similarly-situated’ workers … at the outset of the case.”
In 2023, the Sixth Circuit in Clark v. A&L Homecare & Training Center, LLC, 68 F.4th 1003 (6th Cir. 2023), likewise jettisoned the two-step approach but expressly declined to adopt the standard approved by the Fifth Circuit. Instead, the Sixth Circuit introduced a new standard that requires the plaintiff to demonstrate a “strong likelihood” that other employees are “similarly-situated” to the plaintiff.
Although different, both Swales and Clark require plaintiffs to make a more substantial showing than the first-step approach requires, thereby requiring more factual development and, as a result, more investment on the part of the plaintiffs’ bar. As a result, we have seen fewer motions filed in these two circuits over the past two years, as plaintiffs progress further into discovery before filing their motions for conditional certification and as plaintiffs shift their efforts away from pursuing collective actions in the Fifth and Sixth Circuits.
Indeed, once a hotbed of filings, the number of rulings in the Fifth and Sixth Circuits were muted in 2024. In the Fifth Circuit, courts issued rulings on six motions for conditional certification, and plaintiffs prevailed on five, for a success rate of 83%, and, in the Sixth Circuit, courts issued rulings on ten motions for conditional certification, and plaintiffs prevailed on eight, for a success rate of 80%. While the results are solid for plaintiff’s side lawyers, the investment of time and effort to secure certification and thereafter monetize their cases shows a far longer track than in other federal circuits
These numbers illustrate the impact of Clark. Whereas courts in the Sixth Circuit issued rulings on ten motions for conditional certification this year, in 2023, as Clark began to take hold, courts in the Sixth Circuit issued 22 decisions on motions for conditional certification.
In 2022, the last full year before Clark, courts in the Sixth Circuits issued 36 decisions on motions for conditional certification. These numbers show a decrease of 14 rulings in each of the past two years. These numbers may continue to decline as plaintiffs shift their case filings to other circuits that have retained the lenient two-step approach or to other areas.
The distribution of conditional certification rulings over the past years shows that a disproportionate number emanated from traditionally pro-plaintiff jurisdictions, including the judicial districts within the Second Circuit (33 decisions) and Ninth Circuit (21 decisions), which include New York and California, respectively. The following map illustrates these variations:
At the decertification stage, courts generally have conducted a closer examination of the evidence and, as a result, defendants historically have enjoyed an equal if not higher rate of success on these second-stage motions as compared to plaintiffs. The results in 2024, however, were less favorable for defendants. Courts issued 15 rulings on motions for decertification. Of these, five rulings favored defendants, for a success rate of only 33.3%, and 10 rulings favored plaintiffs, for a success rate of 66.6%.
By comparison, in 2023, courts issued 18 rulings on motions for decertification of collective actions. Of these, eight favored defendants, for a success rate of 44.4%, and ten rulings favored plaintiffs, for a success rate of 55.6%. Such a rate aligns with the success rate defendants enjoyed in 2022. In 2022, courts similarly issued 18 rulings on motions for decertification of collective actions. Of these, defendants prevailed in nine, for a success rate of 50%, and plaintiffs prevailed in nine, for a success rate of 50%.
The variation in numbers across federal circuits no doubt flows from the different standards and approaches that different courts take in evaluating motions for conditional certification and decertification and, in turn, the likelihood of plaintiffs’ success on such motions. If more courts join the Fifth and Sixth Circuits in abandoning the traditional two-step certification process, and thereby increase the time and expense of gaining a conditional certification order, it may lead to a reshuffling of the deck in terms of the types of cases plaintiffs pursue and where plaintiffs choose to file them.