February 2025 – Page 2 – Class Action Defense

February 13, 2025February 18, 2025 by Gerald L. Maatman, Jr.

The Class Action Weekly Wire – Episode 88: Key Trends In Data Breach Class Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman and Jennifer Riley, special counsel Justin Donoho, and associate Ryan Garippo with their discussion of the key trends analyzed in the 2025 edition of the Duane Morris Data Breach Class Action Review, including the contributing factors in the exponential growth of data breach class action filings, the sophistication of the plaintiffs’ bar litigation theories, and the chart-topping settlements in this area.

Bookmark or download the Data Breach Class Action Review e-book here, which is fully searchable and accessible from any device.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Samsung Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Welcome all our loyal listeners and blog readers. Thank you for being here on our weekly podcast, the Class Action Weekly Wire. I’m, Jerry Maatman of Duane Morris, and joining me today are my colleagues, Jen, Justin, and Ryan. Thanks so much for being on this particular podcast.

Jennifer Riley: Thank you, Jerry. Happy to be part of the podcast today.

Justin Donoho: Thanks, Jerry. Glad to be here.

Ryan Garippo: Thanks for having me, Jerry.

Jerry: Today in the podcast we’re discussing the publication of this year’s Duane Morris Data Breach Class Action Review and desk reference designed for our clients to give them the latest, greatest information on the cutting-edge issues in the world of data breach class action. Listeners can find the e-book publication on our blog, the Duane Morris Class Action Defense blog. Jen, can you share with our listeners a bit about this desk reference and publication?

Jennifer: Absolutely, Jerry. The volume of data breach class actions exploded in 2024. Data breach has emerged as one of the fastest growing areas of class action litigation. The Review contains an overview of these filing numbers as well as settlements as well as some of the key decisions in this area. So, in sum, courts continue to reach inconsistent outcomes on issues such as standing and uninjured class members, those issues that are uniquely challenging in the data breach space. The Review has dozens of contributors, and it reflects really the collective experience and expertise of our class action defense group.

Jerry: I think it used to be, people thought whenever there was a drop in the stock following a company announcement, as sure as the sun rises in the east and sets in the west every day, there’d be a securities fraud class action lawsuit being filed. That seems to be the case now, when there’s a data breach incident, a data breach class action follows in its wake. Justin, can you shed some light on why this particular cause of action in this particular space has been growing incrementally over the last 36 months?

Justin: Absolutely. I mean, the frequency of the data breaches have been increasing, which is a huge part, and of course, with that comes heightened attention from both consumers and the plaintiffs’ bar. High profile cases, such as that multidistrict litigation arising from the Marriott International breach that affected over 133 million people, for example. There’s the MOVEIt MDL, which is another big one that got going last year. These have all put companies on notice that failure to secure personal data can lead to costly litigation. Cost lawsuits are not just about the breach itself, it’s also about the aftermath. So, consumers are now more aware of the risks and more inclined to seek legal recourse when their data is compromised.

Jerry: I think this is a great area where the notion that the law is trailing behind technology and can’t keep up with it – may well explain some of the developments in this particular space from a cybersecurity perspective. How do you think the increasing frequency of these sorts of events, and the sophistication of cyber criminals, is playing out in the class action space?

Ryan: Well, the rise in cyberattacks is definitely a huge factor. We’re seeing more sophisticated tactics from cybercriminals. Ransomware is at least one prime example – hackers demand payments in exchange for not publishing or further exploiting stolen data. The issue is that paying the ransom doesn’t necessarily guarantee the safe return or the deletion of the data, which makes these incidents devastating for companies. Additionally, I think we’ve seen as there’s been a shift to remote work and cloud-based infrastructure, that more vulnerabilities are exposed which ultimately increases the frequency of breaches. As a result, I think we’re seeing more lawsuits following these incidents and plaintiffs’ attorneys are more eager to capitalize on the growing number of affected individuals.

Jerry: In the last two weeks, the U.S. Supreme Court has accepted a case for review on the issue of uninjured class members, and whether or not their presence is something that can be used by a defendant to stop class certification. And one of the things we’ve seen in the last few years in the data breach area is the lack of injury or no injury-in-fact, as the Supreme Court has articulated that in TransUnion v. Ramirez. Jen, what do you see in terms of what plaintiffs are doing to try and come up with theories, at least from a financial damage or injury standpoint, that companies are now facing in what I would call data breach litigation 2.0?

Jennifer: Well, Jerry, I think several factors are really contributing to the rise of the popularity of these lawsuits. First, I think the sheer volume of people affected by these breaches has ballooned. Especially with breaches impacting millions of consumers or employees. As the size of these cases increases, I think it naturally leads to higher settlement amounts which in turn are attracting more plaintiffs’ lawyers to this area. Additionally, I think the type of data being compromised is becoming more sensitive – financial and healthcare information, for example – are leading to additional claims and higher potential damages and are leading plaintiffs’ attorneys to become more creative in looking for ways to monetize, capitalize on these breaches in terms of converting them into settlement dollars.

Justin: Yes, absolutely. And some courts are also becoming more sympathetic to plaintiffs in these cases, and to the potential long-term consequences of data breaches to plaintiffs, even where immediate harm is not apparent. So, it’ll be interesting to see where that Supreme Court case plays out. And let’s not forget about the legal fees and the expert fees also contributing to some of these large settlement dollars. As these cases become more complex with issues like class certification and determining damages, and the reasonableness of the cybersecurity, the costs involved in litigating these lawsuits are skyrocketing.

Jerry: You mentioned class certification – certainly the plaintiffs’ bar their theory is file the case, certify the case, then monetize the case, and the statistical study within the desk reference talks about the rise in class certification to 40%. Still a low number, but significantly up from 16% in calendar year 2023. What do you attribute to the trend that’s showing an upward number and a more of a chance for the plaintiffs’ bar to certify their data breach class actions?

Ryan: Well, like we mentioned before, I think it’s reflective of the fact that plaintiffs’ counsel has gotten more sophisticated in this space, and courts are getting more sympathetic to the plaintiffs at issue. But that said, class certification is still a major hurdle in any class action. And it’s particularly challenging in data breach cases. The increased success rate for class certification in the data breach space is 40% in 2024, reflecting that evolving legal precedent. Courts are now more inclined to accept the argument that consumers have suffered harm, even if their data hasn’t been directly misused, and that the mere recognition of an indirect harm, such as the increased risk of identity, theft, or emotional dispute or emotional distress, is enough to allow plaintiffs to get into court and overcome this clear obstacle.

Jerry: Jen, what were some of the major data breach litigation markers in the federal courts this year, by your way of thinking?

Jennifer: Well, Jerry, great question. We discuss in the Review some of the largest ones. Certainly, one of the prime examples is the ongoing MOVEIt Customer Data Breach Litigation. That litigation that began back in 2023 continued throughout 2024, and is ongoing. In that one, the Judicial Panel on Multidistrict Litigation consolidated more than 200 class action lawsuits. Those lawsuits resulted from a Russian cybergang hacking the file transfer software MOVEIt. The Judicial Panel on Multidistrict Litigation transferred those proceedings after consolidating them to the U.S. District Court for the District of Massachusetts. The plaintiffs in that case, as I mentioned, alleged that this vulnerability in the Massachusetts-based company MOVEIt, a transfer file software, was exploited. That data breach is considered to be the largest hack of 2023. According to the Panel’s initial transfer order, it exposed personally identifiable information of more than 55 million people. So, as I mentioned, that proceeding is ongoing. In July 2024, the Transferee Court issued an order adopting a modified bellwether structure in which it ordered the plaintiffs to file up to six consolidated amended complaints, and it ordered the parties to meet confer on the defendants to be named in each of those. The plaintiffs are going to file their motions for class certification, according to the schedule at least, in the summer of 2025. So, lots to be done in those cases yet.

Jerry: Well, it seems to me that data breach litigation, especially in the class action arena, is a problem or a fear that keeps corporate counsel up at night, and some of the top settlements in this space in 2024 maybe fuel that fear. What were some of the key and highest class action settlements in the data breach case, despite the fact that certification hovered around 40%?

The largest data breach class action settlement in 2024 was $350 million in *In Re Alphabet Inc. Securities Litigation*, Case No. 18-CV-6245 (N.D. Cal. Sept. 30, 2024), in which the court granted final settlement approval in a class action alleging that a software glitch led to a data breach in which Google+ users’ personal data was exposed for three years.

Justin: Yes, Jerry. Plaintiffs did very well in securing high dollar settlements last year, with the top 10 settlements totaling $593.2 million dollars. This was a significant increase over 2023 when the top 10 totaled $515 million – so they keep going up, too.

Jerry: Well, my prognostication is the 2025 numbers are going to go up and even exceed those chart-toppers in the next 12 months. In terms of final parting thoughts for our loyal listeners, what are some of the takeaways and key points that our listeners and readers should keep in mind for data breach issues in 2025?

Ryan: Invest in strong cybersecurity measures – it’s essential to stay out of the game in this space and constantly involve your cybersecurity infrastructure against these emerging threats. But beyond that, companies should also have a well-designated incident response plan in place and make sure that it’s regularly tested. This helps ensure not only quicker recovery, but also a stronger defense in court if a breach ever occurs. This legal landscape is evolving, and data breaches are no longer niche; they’re becoming an expected part of the litigation landscape, and so, having a proactive and comprehensive approach can help mitigate the immediate and long-term costs, and help keep you out of those $500 million numbers that Jerry and Justin mentioned before.

Jerry: Well, thanks, Jen, Justin, and Ryan, for your thought leadership and your analysis of this particular area. Loyal listeners, please stop by our blog and website to download for free our e-book, Data Breach Class Action Review – 2025. Thanks so much everyone for lending your expertise today on our Class Action Weekly Wire podcast.

Ryan: Thanks, Jerry.

Justin: Thanks for having me and thank you, listeners.

Jennifer: Thanks so much, everyone. See you next week.

February 12, 2025February 12, 2025 by Eden Anderson

The Federal Arbitration Act Turns 100

By Eden E. Anderson, Rebecca S. Bjork, Jennifer A. Riley, and Gerald L. Maatman, Jr.

The Federal Arbitration Act (FAA) turns 100 years old today.

In enacting the FAA on February 12, 1925, Congress eliminated the power of the states to require that claims be resolved in court when contracting parties instead agree to resolve their claims in arbitration. The FAA’s purpose was to reverse longstanding judicial hostility to arbitration agreements, and to place arbitration agreements on equal footing with other contracts under the law.

As we celebrate the FAA’s 100th birthday, we highlight three key areas in which the FAA’s scope and application have come under scrutiny in recent years.

The Scope Of The Transportation Worker Exemption Remains Unclear

The FAA does not apply to employment contracts of seamen, railroad employees, and workers engaged in foreign or interstate commerce. The scope of this so-called transportation worker exemption has been a hotbed for litigation in recent years, with the U.S. Supreme Court addressing the issue in multiple decisions. The high court’s decisions in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), Domino’s Pizza, LLC v. Carmona, et al., 143 S. Ct. 361 (2022), and Bissonnette v. LePage Bakeries Park St., LLC, 61 U.S. 246 (2024), emphasized that the transportation worker exemption is to be narrowly construed and that, for the exemption to apply, a worker must play a direct and necessary role in the free flow of goods across borders.

In the wake of these decisions, state and federal courts are now grappling with what that means and whether warehouse workers, last-mile delivery drivers, ride-hailing drivers, and fueling technicians meet the “direct and necessary role” test. While such classes of workers bear little resemblance to the seamen and railroad employees expressly excluded from the FAA’s scope, in jurisdictions hostile to arbitration, including California courts and the Ninth Circuit, the transportation worker exemption has been found to apply. It is therefore important for employers to include language in arbitration agreements that permits alternative enforcement of the agreement under state law if the FAA is found not to apply.

Does EFASHA Exempt Entire Cases From Arbitration?

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASHA). Under the EFASHA, an employee alleging sexual harassment or assault, whether individually or as a class representative, may pursue their claims in court rather than in arbitration, regardless of whether they agreed with their employer to arbitrate their claims.

But what happens when a plaintiff alleges such claims, but also alleges claims that permissibly can be arbitrated? Courts too have begun answering that question. Some courts have concluded that the EFASHA’s statutory language requires that the employee’s entire case remain in court, reasoning that the EFASHA makes a pre-dispute arbitration agreement invalid and unenforceable “with respect to a case” which means the entire case. (9 U.S.C. § 402(a) (emphasis added).) The court so concluded in Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535 (S.D.N.Y. 2023), in denying the employer’s motion to compel the plaintiff’s sex harassment, race discrimination, and retaliation claims to arbitration.

The outcome, however, differed in Mera v. SA Hosp. Grp., LLC, 675 F. Supp. 3d 442 (S.D.N.Y. 2023), wherein the plaintiff alleged claims that he experienced a hostile work environment on account of his sexual orientation and that he and other employees suffered state and federal wage and hour infractions. The court there determined that, because the wage and hour claims did not “relate to” the hostile work environment claim, the wage and hour claims could be compelled to arbitration. Id. at 447.

If a plaintiff can allege a plausible claim that triggers the EFASHA’s application, they may be successful in keeping all their claims in court, or possibly only some of them.

We anticipate continued litigation in this area, and an uptick in the assertion of tenuous sex-based harassment claims that might not otherwise have been plead.

Appellate Issues Raised By Recent Case And Legislative Developments

What happens to the trial court proceedings after a decision on a motion to compel arbitration has also been a hotly litigated issue.

In Smith v. Spizzirri, 601 U.S. 472 (2024), the U.S. Supreme Court held that, when a federal court finds that a dispute is subject to arbitration and a party has requested a stay of the court proceeding pending arbitration, the FAA compels the court to stay, and to not dismiss, the proceeding. Consequently, if a plaintiff’s claims are compelled to arbitration and the district court proceedings stayed, there will be no judgment with an associated right to appeal. Thus, the plaintiff’s only recourse—if they dispute the arbitration ruling—will be to seek permission to pursue an interlocutory appeal or to pursue an appeal of the forum issue long after the fact if and when they lose in arbitration.

Another stay issue that will surely be litigated concerns a 2024 amendment to California’s Code of Civil Procedure. In California, if a motion to compel arbitration is denied and that decision is appealed, there is now no longer an automatic stay of the court proceedings during the pendency of an appeal. As a result, plaintiffs can seemingly proceed with their claims in court while the employer seeks a reversal of the forum issue on appeal, unless the appellant seeks and obtains a stay from the trial court. As this law on its face disfavors arbitrate, we anticipate it will be challenged.

For a more comprehensive summary of FAA-related litigation issues, Duane Morris’s 2025 Wage & Hour Class and Collective Action Review, available here, features an entire Chapter on this topic.

February 11, 2025February 11, 2025 by Rebecca S. Bjork

Kansas Federal Court Declines To Revisit Motion for Summary Judgment Order In EEOC Lawsuit And Rejects Interlocutory Appeal Request By Employer

By Rebecca S. Bjork, Gerald L. Maatman, Jr., and Anna Sheridan

Duane Morris Takeaways: A Federal Judge in Kansas recently refused a request for reconsideration of summary judgment and a request for interlocutory appeal on the correct legal standard for hostile work environment claims post-Muldrow v. City of St. Louis, Mo. In EEOC v. Chipotle Services, LLC, Case No. 23-CV-2439 (D. Kan. Feb. 10, 2025) (linked here), Judge Kathryn H. Vratil of the U.S. District Court for the District of Kansas found that appellate review of the Muldrow standard used at summary judgment likely would not affect the case substantially, but rather lead to delay before the case would proceed in the same manner regardless of a decision by the Tenth Circuit. The opinion also rejected the employer’s motion for reconsideration to rehash arguments it should have made on summary judgment – in the Court’s view, an inappropriate use of a motion for reconsideration. This decision not only highlights the importance of timely arguments made at the appropriate stage of litigation, but also counsels employers to analyze and balance the potential outcomes of motions with the time and costs associated with non-dispositive or only partially dispositive motions.

Case Background

Areej Saifan, a Muslim woman, and former Chipotle crew member, alleged in a Charge of Discrimination that she experienced religious harassment from a co-worker during her employment. Saifan alleges that a co-worker repeatedly asked to see Saifan’s hair, which was covered by hijab, and on at least one occasion, the co-worker physically pulled on the hijab, partially uncovering Saifan’s hair. Saifan resigned the next day. After investigating the Charge, the EEOC filed suit on behalf of Ms. Saifan against Chipotle alleging that Chipotle (1) subjected Saifan to unlawful religious harassment, (2) constructively discharged her, and (3) retaliated against her for reporting religious harassment.

Chipotle filed a motion for summary judgment on all three of the EEOC’s Title VII claims but was unsuccessful on all counts.

On December 17, 2024, defendant filed two motions, asking the Court to (1) reconsider its order on defendant’s summary judgment motion, and (2) certify an interlocutory appeal.

The Court’s Ruling

Judge Vratil dismissed defendant’s motion for reconsideration as “simply a rehash of arguments that it made or could have made on summary judgment.” Slip Op. at 5. The Court rejected each of Defendant’s positions as an argument that “it [Defendant] could have raised in summary judgment briefing and chose not to.” Id. at 8. The Court found that Chipotle had not met its burden of showing an intervening change in the controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice as is required by the local Kansas rules.

Judicial economy also took center stage in this ruling when the Court denied the motion to certify its Memorandum and Order for immediate appeal, finding that an interlocutory appeal would not materially advance the ultimate termination of the litigation. While the question of whether Muldrow changed the legal standard for hostile work environment is a controlling question of law, the Court determined that Chipotle failed to establish that the Tenth Circuit would likely dispose or affect the EEOC’s claims for trial. As such, an interlocutory appeal would only delay, rather than expedite or eliminate trial.

Implications For Employers

Employers often may want to fight a non-dispositive decision that feels unfair. However, this decision counsels employers to consider the implications of motions practice before proceeding if the requested outcome would not materially change the future of the case.

February 11, 2025February 11, 2025 by Class Action Defense

Hot Off The Presses! The Duane Morris Data Breach Class Action Review – 2025

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaways: Data breaches are becoming increasingly common and detrimental to companies. The scale of data breach class actions continued its record growth in 2024, as companies faced copycat and follow-on lawsuits across multiple jurisdictions. To that end, the class action team at Duane Morris is pleased to present the second edition of the Data Breach Class Action Review – 2025. This new publication analyzes the key data breach related rulings and developments in 2024 and the significant legal decisions and trends impacting data breach litigation for 2025. We hope that companies and employers will benefit from this resource and assist them with their compliance with these evolving laws and standards.

Click here to download a copy of the Duane Morris Data Breach Class Action Review – 2025 eBook.

Stay tuned for more data breach class action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

February 6, 2025February 6, 2025 by Gerald L. Maatman, Jr.

The Class Action Weekly Wire – Episode 87: Key Trends In Wage & Hour Class And Collective Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, and Greg Tsonis with their discussion of the key trends analyzed in the third edition of the Duane Morris Wage & Hour Class And Collective Action Review, including courts’ interpretation of the conditional certification process, a circuit-by-circuit scorecard, and best practices for employers in 2025.

Bookmark or download the Wage & Hour Class And Collective Action Review e-book here, which is fully searchable and accessible from any device.

Episode Transcript

Jerry Maatman: Welcome back, podcast listeners, to our first session of the Class Action Weekly Wire for calendar year 2025. Thank you for being here. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my partners, Jen Riley and Greg Tsonis. Welcome back.

Jennifer Riley: Thank you, Jerry, happy to be on the first week of Weekly Wire podcast of 2025.

Greg Tsonis: Thanks, Jerry. Glad to be here.

Jerry: Today on our podcast we’re going to be discussing the most recent publication of the Duane Morris Class Action Defense group regarding the 2025 Wage & Hour Class And Collective Action Review. Listeners can find the e-book version of this publication on our blog, the Duane Morris Class Action Defense Blog. Jen, can you share with our listeners some of the ins and outs of this executive summary and e-book?

Jennifer: Absolutely, Jerry. In the Duane Morris Wage & Hour Class and Collective Action Review, we provide an overview of the trends, the key decisions, and the key settlements impacting the wage and hour space over the past year. The purpose of the Review is really multifaceted. First, we hope that it will demystify some of the complexities of class and collective action litigation in the wage and hour space. Second, we really hope the book will keep corporate counsel updated on the ever-evolving landscape of Rule 23 and FLSA collective actions and enable them to really make informed decisions in dealing with these complex litigation risks.

Jerry: Well, I know that wage and hour litigation is one of the hallmarks of our practice with our team collectively having over 225 years of experience in defending these sorts of cases. The review was edited by the three of us on this podcast and we have dozens of additional contributors that analyzed all of the wage and hour class and collective action certification rulings and settlements over the past 12 months. Greg, from your standpoint in terms of dealing with general counsel, what do you think are some of the benefits of this resource?

Greg: Great question, Jerry. So, wage and hour litigation has long been a focus of the plaintiffs’ class action bar. Part of our purpose in putting this together is really to assist our clients by helping them identify developing trends in the case law and offering practical approaches and dealing with these types of cases and class and collective action litigation.

Jerry: As you had mentioned – in 2024, this was a very active space for the plaintiffs’ class action bar, and I think one of the things that clients have remarked to me about is the statistical analysis contained in the Review in terms of looking at circuits’ success rates for both the plaintiff side and the defense side. I know in calendar year 2024, there were approximately 160 motions that were decided and actually plaintiffs had a high degree of success at close to 80%. Jen, what’s your take on why the plaintiffs’ bar is able to certify in essence 4 out of 5 cases?

Of the 157 total motions for conditional certification filed in federal courts in 2024, the plaintiffs won conditional certification 125 times, or at a success rate of 80%, while 32 motions were denied.

Jennifer: Great question, Jerry. So, the threshold for conditional certification tends to be very low. In many cases, plaintiffs are submitting declarations – sometimes only one or two declarations, sometimes with payroll or time records – and courts are routinely accepting this minimal showing. It’s really not about proving the case, at this stage just about showing there’s a plausible basis for contending that the same allegations apply across a defined group. So, given that the plaintiffs’ bar knows this process so well, it’s really no surprise that they are continuing to have a high rate of success here.

Greg: Exactly, and plaintiffs are often able to leverage the conditional certification process and the subsequent notice that issues to bring in more employees to build their case. The fact that it’s relatively easy to get certified gives them a significant advantage right from the start.

Jerry: At least in all circuits except two, both the Fifth and Ninth Circuits, there’s a standard two-part test. A first stage called the lenient stage of conditional certification, and then a second stage called decertification. What occurred in 2024 in terms of how decertification motions came down, especially with respect to the changes or flux in the case law based on what’s coming out of the Fifth and Sixth Circuits?

Greg: That’s right, Jerry. So, after conditional certification, there’s a decertification phase where the court looks closer at the actual claims, the actual evidence that the plaintiffs have been able to marshal, and determine whether those employees are actually similarly situated. Now, historically, federal courts were almost universally following a two-stage process, but as of 2021, the Fifth Circuit threw a wrench in that with its decision in Swales v. KLLM Transport Services. There, the Fifth Circuit essentially abandoned the two-stage process and instituted a more rigorous approach where they required plaintiffs to present stronger evidence upfront. The Sixth Circuit followed suit in a case in 2023, but took a different approach by imposing even stricter standards.

Jerry: It’s very interesting to me that a piece of New Deal legislation passed in 1938, even close to 100 years later, has three different standards – a virtual patchwork quilt of case law depending on where an employer is sued, and what particular circuit’s law is applicable to the certification motion. What’s that like, Jen, in terms of what employers face in trying to defend themselves in these sorts of cases?

Jennifer: Absolutely, Jerry. In a word, it’s creating inconsistency. And that inconsistency could be problematic because it makes predicting outcomes more difficult. And with these now 3 distinct standards, there is a growing chance that the Supreme Court eventually will step in to provide some clarity here.

Jerry: I think it also has something to do with case architecture and venue selection. In 2023, we saw two dozen rulings in the Sixth Circuit. Yet last year, only a dozen, basically a 50% drop in the number of cases filed and then went to certification there. What do you think are the long-term implications in terms of FLSA litigation and venue selection?

Given the Sixth Circuit’s abandonment of the traditional two-step certification process, we expected a material decrease in FLSA cases filed in that in 2024. Indeed, there were only 12 rulings on certification and decertification motions in 2024 in the Sixth Circuit, down from 22 total rulings in 2023. In 2024, the Second Circuit issued the most certification rulings (27 granted; 6 denied), followed by the Fourth Circuit (20 granted; 1 denied); and the Ninth Circuit (13 granted; 7 denied).

Jennifer: Well, Jerry, it’s hard to say for sure. On the one hand, the stricter certification process could deter some plaintiffs from filing in the Sixth Circuit. That certainly seems to have been the case over the past year. On the other hand, employers could face a tougher time getting cases decertified after they’ve been conditionally certified which could lead to larger settlements, or more cases being litigated in other jurisdictions. So, we may see a shift in how and where the cases are filed going forward.

Jerry: Well, certainly anyone who is awake and watching TV on January 20th saw that change is inevitable, and change is now upon us, at least at the governmental sector. Greg, what do you think 2025 bodes for employers in terms of the types of things that the private plaintiffs’ bar will do, especially in the context of FLSA class and collective action litigation?

Greg: The overall trend is clear, Jerry. Employers should be aware that wage and hour litigation isn’t going away anytime soon. Given the plaintiffs’ bar’s ongoing success in these types of cases, and the ease with which they’re able to secure conditional certification, employers really need to be proactive. That means making sure that their pay practices are fully compliant, making sure that they’re reviewing employee classifications, and being ready to respond quickly to potential lawsuits. If they don’t, they might face costly litigation even in those jurisdictions where the plaintiffs’ bar is seeing more pushback.

Jennifer: And to add to that, employers also should be mindful of jurisdictions that are considered plaintiff-friendly, such as the Second Circuit, Fourth Circuit, Ninth Circuit. These are areas where a lot of FLSA litigation is concentrated and they tend to have even higher success rates for the plaintiffs.

Jerry: Success is all about filing the lawsuit, certifying it, and monetizing it. The Review spends a lot of pages delving into key settlements in the wage and hour space – what were the results in 2024 and what does it tell us for 2025?

Greg: Well, Jerry, plaintiffs did very well in securing high-dollar settlements in 2024 in this space, although not quite as well as they did in 2023. In 2024, the top 10 wage and hour settlements totaled just shy of $615 million. That was a decrease from 2023, when the top 10 wage and hour settlements totaled $742.5 million, but relatively in line with recent years.

*The top 10 wage & hour class and collective action settlements totaled $614.55 million in 2024, down from $742.5 million in 2023, and up from $574.55 million in 2022.*

Jerry: Well, my prognostications are the numbers in 2025 are going to go through the roof, and I think we’re apt to see even higher numbers than we’ve seen ever before. But obviously the jury’s still out on that. Well, thank you, Jen, and thank you, Greg, for your thought leadership and analysis in this area, and thank you to our loyal blog readers for tuning in to our first podcast of 2025. Please order your free copy of the Duane Morris Wage & Hour Class And Collective Action Review e-book right off of our blog.

Greg: Thank you for having me, Jerry, and thank you, listeners.

Jennifer: Thanks so much, everyone.

February 4, 2025 by Gerald L. Maatman, Jr.

Just Released! The Duane Morris Wage & Hour Class And Collective Action Review – 2025

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaways: Complex wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the Fair Labor Standards Act (FLSA), often paired with state law wage & hour class claims, offers a potent combination by which plaintiffs can pursue myriad employment claims. To that end, the class action team at Duane Morris is pleased to present the second edition of the Wage & Hour Class And Collective Action Review – 2025. This new publication analyzes the key wage & hour-related rulings and developments in 2024 and the significant legal decisions and trends impacting wage & hour class and collective action litigation for 2025. We hope that companies and employers will benefit from this resource and that it will assist them with their compliance with these evolving laws and standards.

Click here to download a copy of the Wage & Hour Class And Collective Action Review – 2025 eBook.

Stay tuned for more wage & hour class and collective action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

February 3, 2025February 3, 2025 by Class Action Defense

Video Recap From Our Duane Morris Class Action Review – 2025 Book Launch Event!

Thank you to all our clients who attended the in-person book launch of the Duane Morris Class Action Review in Philadelphia last week, as well as our nationwide audience who participated via Zoom.

In case you missed it, watch a video of the live presentation below, featuring Duane Morris partners and editors of the Review, Jerry Maatman and Jennifer Riley, with ALM class action reporter Amanda Bronstad.