Gerald L. Maatman, Jr. – Class Action Defense

December 12, 2025December 12, 2025 by Gerald L. Maatman, Jr.

Coming Soon: The Duane Morris Class Action Review – 2026!!

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

Duane Morris Takeaway: Happy Holidays to our loyal readers of the Duane Morris Class Action Defense Blog! Our elves are busy at work this holiday season in wrapping up our start-of-the-year kick-off publication – the Duane Morris Class Action Review – 2026. We will go to press in early January and launch the 2026 Review from our blog and our book launch website. This announcement also marks our 600th blog post.

The 2026 Review builds on the success of our previous editions and represents our 22nd annual study of the class action space. It will be the biggest and most comprehensive edition yet, at over 750 pages. The 2026 Review has more analysis than ever before, with discussion of over 1,700 class certification rulings from federal and state courts over this past year. The Review will be available for download as an E-Book too.

The Review is a one-of-its-kind publication analyzing class action trends, decisions, and settlements in all areas impacting Corporate America, including the substantive areas of antitrust, appeals, the Class Action Fairness Act, civil rights, consumer fraud, data breach, EEOC-Initiated and government enforcement litigation, employment discrimination, the Employee Retirement Income Security Act of 1974, the Fair Credit Reporting Act, labor, privacy, procedural issues, product liability and mass torts, the Racketeer Influenced and Corrupt Organizations Act, securities fraud, state court class actions, the Telephone Consumer Protection Act, wage & hour class and collective actions, and the Worker Adjustment and Retraining Notification Act. The Review also highlights key rulings on attorneys’ fee awards in class actions, motions granting and denying sanctions in class actions, and the top-class action settlements in each area. It also will contain a brand-new appendix featuring analysis of rulings in the generative artificial intelligence and crypto space. Finally, the Review provides insight as to what companies and corporate counsel can expect to see in 2026.

The Duane Morris Class Action Review was recently cited in briefing to the U.S. Supreme Court in as the authoritative source on FLSA certification statistics and the widening circuit split regarding when it is appropriate to send notice to would-be plaintiffs, under 29 U.S.C. § 216(b) in a Fair Labor Standards Act (“FLSA”) collective action.

In its review of our practice group’s resource, Employment Practices Liability Consultant Magazine (“EPLiC”) said, “The Duane Morris Class Action Review is ‘the Bible’ on class action litigation and an essential desk reference for business executives, corporate counsel, and human resources professionals.” EPLiC continued, “The review is a must-have resource for in-depth analysis of class actions in general and workplace litigation in particular.

With the submission of our analysis to the U.S. Supreme Court, we are humbled and proud to be cited as the authoritative source in the class action space. The Review is also relied on by some of the world’s largest plaintiffs’ firms and federal judges, see, e.g., Laverenz v. Pioneer Metal Finishing, LLC, 746 F. Supp. 3d 602, 614 (E.D. Wis. 2024). The Duane Morris Class Action Review is the “one stop shop” and authoritative source on collective action certification rates, collective action trends and analysis, and the implications, pressures, and contours that parties face when engaged in FLSA collective action litigation.

We look forward to providing the 2026 edition of the Review to all our loyal readers in early January. Stay tuned and Happy Holidays!

December 11, 2025December 11, 2025 by Gerald L. Maatman, Jr.

California Federal Court Holds That Minors Can Be Bound To Arbitration In A Class Action Context

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

Duane Morris Takeaways: On December 9, 2025, Judge Yvonne Rogers of the U.S. District Court for the Northern District of California held in Williams, et al. v. Moon Active Ltd., Case No. 4:25-CV-01626 (N.D. Cal. Dec. 9, 2025), that when a minor to a contract states her intent to disaffirm “all contracts” with a defendant, such disaffirmance of a contract “as a whole” presents an issue of contract validity for an arbitrator to resolve, and is not a specific challenge to an arbitration clause’s delegation provision that a court must resolve. Under the Williams decision, if a minor wants a court to rule upon the validity of a delegation provision contained within an arbitration agreement, then the minor must specifically disaffirm the delegation provision and not merely the whole of the contract within which the delegation provision appears. As such, this ruling is a required read for corporate counsel managing litigation risks through arbitration program.

Case Background

D.K., a minor, used the defendant’s Coin Master mobile game, which allowed users to purchase coins to spin a slot machine feature. When D.K. created an account to play Coin Master, a pop up screen asked her to confirm she was over 18 and that she had read and agreed to Terms and Conditions (Terms) applicable to her usage, with a hyperlink to those Terms also furnished. The opening paragraph of the Terms mentioned in bold that the Terms included an arbitration clause, and provided a link directly to the section of the Terms containing the arbitration clause. The arbitration clause included a delegation provision whereby any disputes concerning the enforceability, validity, scope or severability were delegated to the arbitrator to resolve.

D.K.’s mother filed a class action lawsuit on her behalf asserting claims for negligence, unjust enrichment, and violations of California’s unfair competition law, and her counsel then sent letters to the defendant indicating that D.K. disaffirmed “all contracts” with the company. Id. at 3. The defendant moved to compel arbitration.

The Decision

The court granted the motion to compel arbitration. The court first addressed whether an arbitration contract had been formed. Because California law permits a minor to contract in the same manner as an adult subject to the power of disaffirmance, and because conspicuous notice of the arbitration clause was furnished, the court held the Terms were a validly formed contract between the parties.

As to whether D.K. had disaffirmed the Terms by sending a letter to the defendant disaffirming “all contracts,” the court agreed with the defendant that such issue was a validity challenge to the Terms as a whole that needed to be resolved by the arbitrator pursuant to the delegation clause. D.K. argued that the delegation clause could not apply since she had disaffirmed the Terms. In rejecting this argument, the court explained that while courts are permitted to decide specific challenges to delegation clauses, it is arbitrators who, pursuant to delegation clauses, are to determine challenges to the validity of an arbitration agreement as a whole. The court found that D.K.’s letter, which disaffirmed “all contracts,” was a challenge to the Terms as a whole because the letter did not single out the arbitration clause or its delegation provision. In so holding, the court distinguished the circumstances that were present in J.R. v. Electronic Arts, 98 Cal.App.5th 1107 (2024) because the minor there has specifically disaffirmed “any” contract rather than “all contracts.”

Implications of the Decision

The Williams decision highlights the importance of the wording used when a minor seeks to disaffirm an arbitration agreement.

Under Williams, for a court to address the validity of a delegation provision within an arbitration agreement, the minor must specifically disaffirm the delegation provision itself and not generally disavow “all contracts.”

December 9, 2025December 9, 2025 by Gerald L. Maatman, Jr.

Reflections On The 2025-2026 Judicial Hellholes Report From The American Tort Reform Association – Ranking The Worst Jurisdictions For Defendants

By Gerald L. Maatman, Jr.

Duane Morris Takeaways: The American Tort Reform Association (“ATRA”) annually publishes its “Judicial Hellholes Report,” focusing on litigation issues and identifying jurisdictions likely to have unfair and biased administration of justice. The ATRA recently published its 2025-2026 Report and this year there was a brand-new entry for the #1 position as the most challenging venue for defendants – the courts of Los Angeles. Readers can find a copy here and the executive summary here.

The Judicial Hellholes Report is an important read for corporate counsel facing class action litigation because it identifies jurisdictions that are generally unfavorable to defendants. The Report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants. The Report is a “must read” for anyone litigating class actions and making decisions about venue strategy.

The 2025-2026 Hellholes

In its recently released annual report, the ATRA identified eight jurisdictions on its 2025-2026 hellholes list – which, in order, include: (1) Los Angeles (with massive nuclear verdicts, abusive litigation practices, and predatory no-injury lawsuits); (2) New York City (at this spot for the second time in a row, with expansive theories of product liability for tech companies and lawsuit abuses); (3) South Carolina (particularly due to a bias against corporate defendants in asbestos litigation); (4) Louisiana (namely, with the coastal litigation trial which concluded in a nine-figure verdict and various political biases); (5) Philadelphia Court of Common Pleas (for mass torts litigation); (6) St. Louis, Missouri (with focuses on junk science in the courtrooms and out-of-town ADA litigation); (7) Cook, Madison, and St. Clair Counties, Illinois (for baby formula and asbestos litigation); and (8) King County, Washington and the Washington Supreme Court (for junk science in the courtrooms and novel climate change litigation).

According to the ATRA’s analysis, these venues are less than optimal for corporate defendants and often attract plaintiffs’ attorneys, particularly for the filing of class action lawsuits. As a result, corporate counsel should take particular care if they encounter a class action lawsuit filed in one of these venues.

The “Watch List”

The ATRA also included six jurisdictions on its “Watch List” — up from only one on the previous list. These are listed in no precise order, and according to the Report, bear watching due to expansive liability and concerning trends. The Watch List selections include: Gwinnett, Fulton, and Cobb Counties in Georgia, after Georgia as a whole fell from the Hellholes list after significant reforms, these counties could remain problematic); Pennsylvania Supreme Court (which was previously listed in the Hellholes list with the Philadelphia Court of Common Pleas, and was moved to the Watch List after reforming some of the issues with forum shopping; Texas (with pro-plaintiff leanings and nuclear verdicts in trial courts); Michigan Supreme Court (which has yet to issue several high-profile, long-awaited decisions); Louisiana (on the watch list see how 2025 civil justice reforms impact the courts); and Kentucky (with regard to the trial court’s large verdict awards).

The “Dishonorable Mentions”

The ATRA included a few jurisdictions on its “Dishonorable Mentions” list, for making unsound decisions, engaging in abusive practices, or other actions that “erode the fairness of a state’s civil justice system.” The venues on the list include: (i) the Fourth Circuit (views on public nuisance); (ii) a Colorado Court (due to problematic evidentiary decision); and (iii) Ohio Appellate Courts (which permitted unlimited noneconomic damages).

Points Of Lights

In addition, the ATRA recognized that several jurisdictions made significant positive improvements this year, highlighting decisions by a Colorado court that dismissed a medical monitoring damages theory, the Delaware Supreme Court, which rejected junk science, the Maine Supreme Court, as it declined to broaden the scope of public nuisance liability, a North Carolina court which addressed legislative authority to limit noneconomic damages, and the Utah Supreme Court, which eliminated “phantom damages” windfalls.

Implications For Employers

The Judicial Hellholes Report often mirrors the experience of companies in high-stakes class actions, as California, New York, South Carolina, Louisiana, Pennsylvania, Missouri, Illinois, and Washington are among the leading states where plaintiffs’ lawyers file class actions. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and more generous damages recovery possibilities under state laws.

December 1, 2025December 1, 2025 by Gerald L. Maatman, Jr.

District Of Columbia Federal Court Declines To Narrow EEOC’s Pregnancy-Bias Suit Against Security Firm

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

Key Takeaways: In EEOC v. Security Assurance Management Inc., No. 25-CV-00181, 2025 WL 2911781 (D.D.C. Oct. 14, 2025), Judge Rudolph Contreras of the U.S. District Court for the District of Columbia refused to pare back the EEOC’s pregnancy and lactation claims against Security Assurance Management, Inc. (“SAM”), leaving all five causes of action under the Pregnant Workers Fairness Act (PWFA) and both Title VII counts intact. Applying Rule 12(c), the Court held – in an order denying Defendant’s Partial Motion to Dismiss – the “heavy burden” on a defendant seeking judgment on the pleadings and determined that the EEOC’s theories — though factually overlapping — targeted distinct harms and therefore were not “duplicative.” The Court’s refusal to dismiss any of the EEOC’s PWFA counts sends a clear signal that defendants will face an uphill battle when trying to narrow pregnancy-related claims at the pleadings stage, particularly after filing an answer.

Case Background

The EEOC filed suit under Title VII and the PWFA on behalf of Simone Cooper, a special police officer who was reassigned after the client at her post did not want her working at the site while pregnant. (Compl. ¶ 17). As the court summarized, the EEOC “brings this employment discrimination action against Security Assurance Management, Inc. pursuant to Title VII … and the Pregnant Workers Fairness Act,” alleging that SAM “disciplined and removed an employee, Simone Cooper (‘Ms. Cooper’), from her assignment due to her pregnancy-related condition and her need for accommodations.” Id. at *3.

After her maternity leave, Cooper was placed at a Hampton Inn post where she “was breastfeeding and had the pregnancy-related medical condition of lactation.” Id. The court noted that she “could nonetheless perform the essential functions of her job as an Unarmed Special Police Officer,” but SAM “repeatedly denied or ignored Ms. Cooper’s accommodation requests.” Id. The consequences were significant, as “Ms. Cooper leaked through her clothing during the workday on at least two occasions,” and because SAM provided no adequate space, “Ms. Cooper had to pump in her car in the Hampton Inn parking lot.” Id.

Despite outreach by Cooper, her union representative, and her attorney, the company allegedly did not engage in any interactive process. SAM eventually issued a written warning for “excessive absenteeism” that included days she was not scheduled and the day she left after leaking through her uniform. Id. at *4. She was later removed from the schedule entirely.

The complaint asserts seven claims, including two under Title VII and five under the PWFA for failure to accommodate, adverse action based on accommodation requests, denial of employment opportunities, retaliation, and interference. After it filed its Answer, SAM filed a partial motion to dismiss seeking dismissal of three of the counts as purportedly duplicative.

The Court’s Ruling

Because SAM filed an Answer before seeking dismissal, the court treated the request as a Rule 12(c) motion. As Judge Contreras explained, such a motion “will be granted only if Defendant can demonstrate that no material fact is in dispute and that it is entitled to judgment as a matter of law,” and at this early stage the movant “shoulders a heavy burden of justification.” Id. at *6.

The Court began with its definition, citing from Wultz v. Islamic Republic of Iran’s “duplicative claim test.” It explained that “duplicative claims are those that stem from identical allegations, that are decided under identical legal standards, and for which identical relief is available.” Id. at *7 (quoting Wultz, 755 F. Supp. 2d 1, 81 (D.D.C. 2010)). SAM argued that several PWFA claims were repetitive, but after analyzing each count, the Court held otherwise.

Most notably, SAM asserted that the “Adverse Actions” claim duplicated the PWFA retaliation claim because both concerned similar employment decisions. Judge Contreras disagreed, emphasizing that the counts “assert different motivations for Defendant’s allegedly unlawful conduct.” Id. at *8. The adverse-action theory centers on actions taken “on account of” Cooper’s accommodation requests, while retaliation requires adverse treatment because she opposed unlawful practices. “Because Count Two (Adverse Actions) and Count Four (Retaliation) arise from different allegations,” the court concluded, “the claims are not duplicative.” Id. at *9.

The Court applied the same reasoning to SAM’s attempt to collapse the PWFA adverse-action, denial-of-opportunities, and interference counts into the single failure-to-accommodate claim. Those theories, Judge Contreras explained, each addressed different harms and are evaluated under distinct legal standards. As a result, “none are duplicative,” and the Court denied the motion in full. Id. at* 7.

Implications For Employers

This opinion is a reminder that overlapping facts do not automatically render multiple statutory claims redundant — especially under the PWFA, where Congress created several discrete causes of action aimed at different workplace harms. Courts are giving each theory breathing room rather than collapsing them into a single “pregnancy discrimination” count.

Procedurally, the decision warns defendants against using post-Answer motions to trim suits. Under Rule 12(c), the movant faces a “heavy burden,” and close questions typically favor allowing the case to proceed to discovery.

Substantively, the facts the Court credited (removing a visibly pregnant worker at a client’s request, ignoring repeated lactation-related accommodation needs, forcing pumping in a car, and disciplining a worker for consequences of inadequate accommodations) are the kinds of scenarios likely to support claims not just under the PWFA, but also under Title VII.

The decision reinforces that the PWFA is a powerful, stand-alone statute with multiple actionable theories. Courts will not readily prune these claims at the pleading stage, and the EEOC is deploying them aggressively. Employers should treat pregnancy-related accommodation requests with the same rigor as disability accommodations – engage promptly, document communications, provide appropriate space and break time, and avoid client-driven decisions that move or remove pregnant workers.

December 1, 2025December 1, 2025 by Gerald L. Maatman, Jr.

Florida Federal Court Denies Certification Of Nationwide Classes Of Burger King Consumers in Suit Alleging Deceptive Practices

By Gerald L. Maatman, Jr., Brett Bohan, and Andrew Quay

Duane Morris Takeaways: On November 25, 2025, in Coleman, et al. v. Burger King Corp., Case No. 22-CV-20925, 2025 U.S. Dist. LEXIS 231422 (S.D. Fla. Nov. 25, 2025), Judge Roy K. Altman of the U.S. District Court for the Southern District of Florida denied a motion for class certification of three nationwide classes of consumers against one of the Burger King after the lawsuit narrowly survived two motions to dismiss. The Court held that due to the predominance of individual questions between the proposed classes, and plaintiffs’ lack of class-wide evidence to support certification, the plaintiffs failed to establish the prerequisites for class certification from the sale of “Whoppers” and “Big Kings” across the country. The opinion illustrates the hurdles plaintiffs face when attempting to certify multi-state, let alone nationwide, classes, and the fundamental, yet effective arguments corporate counsel can raise to defeat them.

Case Background

Plaintiffs, a group of Burger King consumers alleging that Burger King materially overstates the size of its burgers in advertisements, sought certification of three nationwide classes. Id. at *2. Plaintiffs sought certification under Rule 23(b)(3), which allows a district court to certify a class only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Id. at *6-7 (quoting Fed. R. Civ. P. 23(b)(3)). Plaintiffs insisted that they each purchased a burger because of the advertising and would not have if the size of the burgers had been portrayed accurately. Id. at *3. Notably, the plaintiffs did not offer any substantive analysis on variations between state laws despite their request for certification of nationwide classes.

Burger King responded that plaintiffs’ motion could not satisfy predominance and superiority under Rule 23(b)(3) and commonality and typicality under Rule 23(a). Id. at *8. Burger King argued that plaintiffs’ lack of class-wide evidence, coupled with Burger King’s affirmative defenses that raise additional individualized questions, was fatal to their motion for class certification. Id. at *33. Also weighing against predominance, Burger King argued, the proposed class members “were exposed to a wide variety of advertisements,” and “[n]o single photograph of a burger . . . can represent the appearances of the burgers every other class member received.” Id. at *23, 28.

The Court’s Opinion

In a 35-page opinion, Judge Roy K. Altman denied plaintiffs’ motion for class certification for failing to carry their Rule 23 burden. Explaining that plaintiffs are not entitled to “a mere pleading standard” on a motion for class certification, and that they must “affirmatively demonstrate” their compliance with each element of Rule 23, the Court held that plaintiffs failed to establish predominance and superiority under Rule 23(b)(3) and, at minimum, commonality under Rule 23(a). Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)).

As for predominance, the Court explained that Plaintiffs needed to be able to prove “the relative smallness of the burgers [they bought compared to the burgers in the advertisements] with a few pieces of common evidence that apply with equal force to everyone.” Id. at *30. Plaintiffs could not do that, the Court held, because each putative class member saw a particular advertisement and received a specific burger. Id. Plus, by seeking certification of nationwide or multi-state classes, plaintiffs bear the heavy burden to demonstrate that “variations in state law” do not threaten to “swamp any common issues and defeat predominance.” Id. at *10 (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir. 2004)). Plaintiffs’ motion for certification did not provide “any analysis of potential state-law conflicts,” thus “utterly fail[ing]” to meet their burden of showing that common issues of law predominate. Id. at *12.

The Court further agreed that Burger King’s affirmative defenses raised additional individualized inquiries. If the Court were to grant certification, a “potentially significant percentage” of the putative class members may be precluded from pursuing their claims by virtue of an arbitration clause and class action waiver that loyalty rewards program users had agreed to, and with respect to at least one class, numerous plaintiffs and putative class members did not properly notify Burger King of the alleged breaches within a reasonable time after they discovered the alleged breaches.

For similar reasons, the Court rejected plaintiffs’ proffered method of calculating class-wide damages by subtracting the price of the burger from the value of the item as determined by the jury. Id. at *45. Burger King menu items vary by location, and the prices likely differed throughout the class period, so the Court would need to confirm when and where each individual plaintiff purchased a burger in order to compute damages. Id. at *46.

Turning to superiority, the Court held that plaintiffs’ proposed classes “would create an administrative nightmare.” Id. at *51. Plaintiffs contended that “there are no significant or unusual difficulties in managing this case” because Burger King’s liability “can be proven by its uniform advertisements and photographs of the actual Menu Items served to customers, which are common to the entire class.” Id. at *50. The Court rejected plaintiffs’ conclusory argument because the proposed class involves millions of consumers stretching to 2018, “very few of whom are likely to have retained proof of (or even remember) their fast-food purchases.” Id. at *52.

Finally, though not necessary for denying class certification, the Court held that plaintiffs failed to show that common questions they raised, such as whether Burger King’s advertisements are materially misleading, can be raised through class-wide evidence. Id. at *54. While plaintiffs offered questions common to the class, they failed to show that a class-wide proceeding would “generate common answers apt to drive the resolution of the litigation.” Id. at *55 (quoting Dukes, 564 U.S. at 350).

In sum, after narrowly surviving two motions to dismiss, plaintiffs were unable to surmount their burden at the class certification stage, and the Court denied their motion for class certification.

Implications For Companies

The Court’s holding in Coleman demonstrates the burden that plaintiffs must overcome when seeking to certify a class. Coleman shows that plaintiffs cannot rest on the allegations in their complaints to satisfy the elements of class certification and must instead put forth evidence from which courts may determine commonality and predominance.

In cases involving allegations of consumer fraud, it may not be sufficient for plaintiffs to establish that they were all deceived by the same allegedly fraudulent behavior. Instead, to certify a nationwide class, plaintiffs may also need to overcome differences between locations; difficulties in supplying reliable, supporting proof; and variations between state laws.

Additionally, Coleman represents a reminder of the continued utility of an arbitration agreement for defeating class certification, even where the agreement may not extend to all members of the class.

December 1, 2025 by Gerald L. Maatman, Jr.

Nevada Supreme Court Rejects Portal-to-Portal Exemptions: Pre-Shift COVID Testing Counts As Work Under State Law And Legislature Quickly Reverses Course

By Gerald L. Maatman and Anna Sheridan

Key Takeaways: In Amazon.com Services, LLC v. Malloy, 141 Nev. Adv. Op. 50 (Oct. 30, 2025), the Nevada Supreme Court resolved an important certified question affecting wage-and-hour litigation statewide – it ruled that Nevada’s wage laws do not incorporate the federal Portal-to-Portal Act’s (“PPA”) broad exclusions for preliminary and postliminary activities. The ruling arose in the context of Amazon’s mandatory pre-shift COVID-19 testing policy during the pandemic, under which employees alleged unpaid time for required health screenings. Because Nevada has not adopted the PPA, the Court held that these federally recognized exemptions are not available to employers as a categorical defense under state law. However, the Nevada Legislature acted almost immediately, enacting SB 8 in a special session just weeks later to expressly import PPA style exemptions into the state law.

Case Background

Nevada Resident Dwight Malloy, a warehouse employee at an Amazon fulfillment center, filed a putative class action in the U.S. District Court for the District of Nevada alleging that Amazon violated NRS 608.016 by requiring workers to undergo mandatory health screenings without paying them for the time spent completing these protocols. He alleged that the mandatory COVID-19 testing before each shift added several minutes of unpaid time. Relying on Nevada’s broader state constitutional wage protections, Malloy brought a proposed class action seeking compensation for all employees subjected to this COVID-19 testing.

Amazon moved to dismiss, urging the district court to apply the Portal-to-Portal Act and treat the testing as non-compensable preliminary activity. Under the PPA, federal law excludes from the definition of compensable work time activities “preliminary to” or “postliminary to” an employee’s principal duties. Amazon argued that Nevada has historically mirrored the FLSA and that the PPA’s framework should follow. The district court disagreed, concluding that Nevada law had not incorporated the PPA and that mandatory testing time was compensable. Faced with competing interpretations of the statute and no controlling Nevada precedent, the federal court invoked Nevada Appellate Procedure Rule 5 and certified the central question to the Nevada Supreme Court. The Nevada Supreme Court accepted the certified question, setting the stage for a definitive interpretation of NRS 608.016.

The Nevada Supreme Court’s Ruling

Justice Ron Parraguirre authored the opinion of the Nevada Supreme Court and began by reframing the certified question to ensure a precise answer. The opinion was clear that the Supreme Court would decide only “whether Nevada’s wage-hour laws incorporate the exceptions to compensable ‘work’ that are laid out in the PPA.” Id. at 1-2. That focus on the exceptions drove the Supreme Court’s analysis.

Although Nevada’s wage laws often “mirror the FLSA,” the Supreme Court emphasized that its prior decisions have repeatedly refused to follow federal law where the texts diverge. Amazon.com Servs., LLC v. Malloy, 141 Nev. Adv. Op. 50, 2025 WL 3032215, at 2 (2025). This case, the Supreme Court explained, was one of those moments. The PPA provides a sweeping “catchall” set of exclusions for any activity deemed preliminary or postliminary. Id. at 4. Nevada’s statutes, by contrast, contain only “narrow and specific exceptions,” such as those enumerated in NRS 608.0195 and NRS 608.215. Id.

The Supreme Court stressed the structural mismatch: the PPA creates a broad outer boundary of non-compensable time, whereas Nevada’s Legislature chose not to include any analogous, general preliminary-activity exemption. The opinion makes the legislative intent point explicit: “The plain language of NRS Chapter 608 does not evince legislative intent to mirror the PPA, and the PPA’s broad exceptions do not correspond with the narrow and specific exceptions Nevada provides.” Id.

The Supreme Court also observed that the Legislature has amended Nevada’s wage-and-hour provisions “on multiple occasions” to align certain terms with federal law when it wished to do so—yet it never added PPA-style text or referred to preliminary or postliminary activities. Id. at *5. In other words, the Legislature knew how to adopt the PPA and simply chose not to.

Based on this textual and structural analysis, the Supreme Court answered the certified question “in the negative.” Id. Nevada has not incorporated the PPA’s exceptions, and employers cannot rely on them to avoid paying for required pre-shift tasks.

Notably, the Supreme Court did not resolve whether COVID testing is necessarily compensable in every scenario. Instead, the ruling’s effect is to eliminate the PPA as a categorical shield. Whether a specific pre-shift activity is compensable will depend on Nevada’s own definition of “work,” not federal carve-outs.

Implications for Employers

Although Malloy was quickly overtaken by legislative action, its interpretive significance cannot be overstated. For roughly two weeks, Malloy dramatically broadened the scope of compensable time under Nevada law by removing the federal preliminary/postliminary framework entirely. Employer groups immediately warned that the ruling could expose businesses to retroactive claims for any mandatory pre- or post-shift activity — health screenings, safety checks, clock-in delays, security gates, equipment pickups, or similar tasks.

In mid-November 2025, the Nevada Legislature enacted SB 8, expressly adding PPA-style exemptions into NRS Chapter 608 and applying them retroactively. The Governor signed it into law on November 20, and it took immediate effect. That legislation largely neutralized the backward-looking exposure that Malloy might have created. However, SB 8 itself carries a 2029 sunset, meaning Nevada may revisit the issue in future sessions. If SB 8 lapses or is modified, Malloy’s reasoning will again guide courts in interpreting Chapter 608.

Even with SB 8 in place, Malloy is a consequential decision for Nevada employers. It clarifies that Nevada’s wage statutes stand on their own terms and will not absorb federal exemptions absent explicit legislative action. Employers with Nevada operations should ensure that any required pre- or post-shift activity is properly categorized, measured, and recorded — and should keep a close eye on the evolving legislative environment as the 2029 sunset approaches.

November 26, 2025November 26, 2025 by Gerald L. Maatman, Jr.

The EEOC Can Chart Its Own Path: Why The EEOC’s Latest “Win” Is Good News For Employers

By Gerald L. Maatman, Jr., Adam D. Brown, and Elizabeth G. Underwood

Duane Morris Takeaways: On November 25, 2025, in Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764 (D.D.C. Nov. 25, 2025), Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia dismissed an Amazon delivery driver’s lawsuit against the EEOC. The lawsuit alleged that the EEOC illegally halted investigations of disparate impact claims following an executive order from President Trump. The district court’s ruling is at least a short-term win for employers, demonstrating that a plaintiff who is not the subject of an EEOC action cannot easily resort to the federal courts to challenge the internal investigation and enforcement policies that caused the EEOC not to pursue theories of employer liability. The “win” is likely the first in a series of challenges to the EEOC’s stance on disparate impact litigation.

Case Background

The plaintiff in this case, Leah Cross, who worked as Amazon delivery driver for several months in 2022, was fired after she failed to satisfy Amazon’s delivery quota requirements. In May 2023, Cross filed a sex-based charge of discrimination against Amazon with the Colorado Civil Rights Division, asserting violations of Title VII and Colorado state law.

Cross contended that Amazon’s delivery quotas and resulting bathroom limitations had a disparate impact on female Amazon employees. Specifically, she alleged, Amazon enforced excessively high delivery quotas, which forced delivery drivers to forgo bathroom breaks. According to Cross, this disparately impacted female delivery drivers because of their differing personal needs relative to male drivers.

In January 2024, the EEOC’s Denver office began investigating the charge. But in April 2025, President Trump issued Executive Order 14281 titled “Restoring Equality of Opportunity and Meritocracy,” which instructed federal agencies to deprioritize enforcement of antidiscrimination laws based on disparate impact theories of liability. That Executive Order also specifically directed the EEOC to examine all pending investigations of such claims and take appropriate action consistent with the new enforcement priorities.

In September 2025, the EEOC issued a memorandum requiring staff to close all investigations of disparate impact claims, which included Cross’s claims. Thereafter, Cross filed a lawsuit against the EEOC, alleging that she “ha[d] been denied the benefit of a full investigation” by the Commission. Cross v. EEOC, No. 1:25-CV-3702, 2025 WL 3280764, at *3 (D.D.C. Nov. 25, 2025).

Cross claimed the EEOC’s memorandum violated § 706(2) of the Administrative Procedure Act, arguing that: (1) the Commission acted contrary to Title VII and the Age Discrimination in Employment Act by “selectively exclud[ing] categories of discrimination from the charge-investigation process;” (2) the Commission acted arbitrarily and capriciously in abruptly changing its policy; (3) the Commission’s memorandum constituted a substantive rule that was “in excess of statutory jurisdiction, authority, or limitations”; and (4) the Commission should have promulgated its memorandum through proper notice-and-comment rulemaking procedures. Id. Therefore, Cross sought a preliminary injunction requesting, among others, for her investigation to be reopened.

The Court’s Opinion

The Court held Cross failed to establish that she had standing to bring her claims and thus dismissed Cross’s claims for lack of subject-matter jurisdiction, without addressing them on the merits. To remedy Cross’s alleged injuries, the Court suggested that Cross could pursue a Title VII action directly against Amazon.

The Court determined that Cross did not show any judicially cognizable injury from the EEOC’s closure of her investigation. Moreover, the Court opined that “even if that were the kind of injury capable of judicial resolution, Cross has not shown that a favorable ruling by this Court would redress that injury.” Id. at *1.

The Court explained that “federal courts are ‘not the proper forum for resolving claims that the Executive branch’ should ‘bring more’ investigations and enforcement actions.” Id. at *4 (quoting United States v. Texas, 599 U.S. 670, 680 (2023)). Under applicable case law recognizing this principle, the Court held, because Cross was not the subject of an EEOC enforcement action, she lacked standing to challenge the agency’s investigation and enforcement decisions.

Implications For Companies

The Court’s ruling is a win for companies, confirming that federal courts currently are not willing to interfere with the EEOC’s internal investigation and enforcement policies regarding disparate impact claims. Even more broadly, the Court’s order reinforces the substantial deference federal courts grant the EEOC in its internal decision-making processes, which could cut in different directions depending on the enforcement priorities and policies of a particular executive branch or EEOC leadership regime.

Crucially, however, employers are not in the clear. Companies still should be proactive and continue to audit regularly their hiring and employment practices for potential disparate impact, which remains unlawful under both federal and state laws notwithstanding any vacillation in EEOC policy. While the EEOC may choose to deprioritize pursuing disparate impact claims, a charging party who receives a Notice of Right to Sue letter still can file a private lawsuit in reliance on longstanding precedent regarding disparate impact.

November 26, 2025November 26, 2025 by Gerald L. Maatman, Jr.

California Court Of Appeal Affirms Dismissal Of Standalone PAGA Action Because A Prior Global Settlement Precluded Overlapping Claims

By Gerald L. Maatman, Jr., Jennifer A. Riley, and George J. Schaller

Duane Morris Takeaways: On November 19, 2025, in Brown v. Dave & Buster’s of Cal., Inc., Case No. B339729, 2025 Cal. App. LEXIS 750 (Cal. App. Nov. 19, 2025), the California Court of Appeal for the Second Appellate District affirmed a trial court’s decision granting judgment on the pleadings that barred a standalone PAGA plaintiff’s claims for lack of standing and due to a prior global settlement with overlapping claims.

In an important decision for all employers in California, the Court of Appeal recognized a prior PAGA settlement fully encompassed and released the standalone plaintiff’s claims as to all defendant entities. Accordingly, the Court of Appeal affirmed the trial court order finding that the plaintiff did not have standing to sue and her claims were barred by claim preclusion.

Case Background

Lauren Brown worked for Dave & Buster’s of California, Inc. and Dave & Buster’s Inc. (collectively “Buster’s”) in its Westchester restaurant location from November 2016 to April 2018. Id. at *1-2.

In June 2019, Brown filed a standalone representative action under the Labor Code Private Attorneys General Act (“PAGA”) against Buster’s and alleged Buster’s “failed to provide meal periods, rest periods, vacation pay, and wage statements . . . and routinely required employees to work off-the-clock.” Id. at *2.

Buster’s filed a demurrer to abate/stay, or in the alternative, a motion for discretionary stay, and argued that Brown’s action “was between the same parties on the same cause of action in at least two previously-filed actions” in Espinoza v. Dave & Buster’s Management Corporation, Inc., Los Angeles County Superior Court Case No. BC710345, and Lopez v. Dave & Buster’s of California, Inc., et al.,San Diego County Superior Court Case No. 37-2018-00054080-CU-OE-CTL. See Brown, 2025 Cal. App. LEXIS 750at *2. In October 2019, the trial court found Brown’s case was “‘substantially identical’ to the Espinoza action” and sustained Buster’s demurrer and stayed the case. Id.

Buster’s, in February 2020, filed a statement with the trial court concerning additional information on earlier-filed PAGA actions. Buster’s statement included “when each case was filed, when the other plaintiffs submitted their requisite notices to the Labor and Workforce Development Agency (Agency), and which claims overlapped with Brown’s.” See id. at *3. Buster’s disclosed Rocha v. Dave & Buster’s Management Corporation, Inc., Santa Clara County Superior Court Case No. 19CV348961, and Andrade v. Dave & Buster’s Management Corporation, Inc., San Diego County Superior Court Case No. 37-2019-00019561-CU-OE-CTL (“Andrade”). See Brown, 2025 Cal. App. LEXIS 750at *3.

On April 1, 2022, the Andrade parties entered into a long-form settlement agreement with all three Buster’s entities, including those that Brown sued. Included in the released claims was “failure to pay accrued vacation pay at the end of employment, including but not limited to claims under the California Labor Code.” The released claims specifically cited § 227.3 of the California Labor Code regarding vacation pay. Id. at *4-5.

The plaintiff in Andrade moved for settlement approval, showing she notified the Agency of her motion and settlement agreement. The Agency accepted the settlement and did not oppose it. On November 4, 2022, the San Diego Superior Court granted approval of the Andrade settlement. Id.

In April 2023, the parties in Brown’s action notified the court that the Andrade action had settled. Brown alleged there “might not be complete overlap with Andrade as to her unpaid vacation claim, but she was still checking on this issue.” Id. at *4.

Thereafter, in June 2023, Buster’s moved for judgment on the pleadings and argued the Andrade settlement released all of Brown’s claims and that claim preclusion barred Brown’s lawsuit. Id. Buster’s supported its motion with various documents from the Andrade action, including the pre-filing notice to the Agency on May 13, 2019, the Andrade complaint filed on November 14, 2019 (which omitted a vacation pay violation), the amended notice letter to the Agency on February 3, 2022, and the corresponding amended complaint filed in Andrade on March 10, 2022. The amended notice to the Agency added a vacation pay claim, under § 227.3, and added the named defendants in Brown’s case. Id. at *4.

Brown opposed Buster’s motion and asserted she had standing to bring all claims in her PAGA letter because Buster’s violated her rights under the Labor Code. Citing LaCour v. Marshalls of Cal., LLC, 94 Cal. App. 5th 1172 (2023), Brown maintained because the Andrade plaintiff failed to exhaust her claims before the Agency, “she was therefore not deputized to pursue and settle the Labor Code violations in [Andrade’s] amended complaint.” See Brown, 2025 Cal. App. LEXIS 750at *5. Brown also noted the plaintiff in Andrade waited 35 days between sending her amended pre-filing notice and filing her complaint in court, and therefore, the Andrade settlement did not apply to Brown’s §227.3 vacation pay claims against the Buster’s entities Brown sued. Id.

The trial court granted Buster’s motion without written comment, dismissed Brown’s complaint with prejudice, and entered judgment in favor of Buster’s. Thereafter, Brown appealed. Id. at *5-6.

The California Court of Appeal’s Decision

The Court of Appealaffirmed the trial court’s decision, finding Brown lacked standing, claim preclusion barred Brown’s PAGA claims, and the Andrade plaintiff’s failure to wait 65 days to file her amended complaint was a “harmless defect” where the Agency had an opportunity to object to the Andrade global settlement and did not do so.

At the outset, the Court of Appealopined Brown identified no error from the trial court decision and determined Brown “effectively concede[d]” the Andrade settlement resulted in a final judgment on the merits and did not bar her non-vacation pay claims. Id. at *6. The Court of Appealsimilarly rejected Brown’s argument that she had standing to pursue Labor Code violations after November 4, 2022, the date after court approval of the Andrade settlement, because her employment with Buster’s ended in 2018. Id. at *6-7.

The Court of Appealconsidered the sole issue as — “did Andrade’s failure to adhere strictly to the 65-day waiting period for her amended claims defeat Buster’s claim preclusion argument?” Id. at *7. In determining this question, the Court of Appealexplained § 2699.3 of the Labor Code provides “if the Agency does not respond within 65 calendar days of an aggrieved employee providing it with written notice, ‘the aggrieved employee may commence a civil action.’” The crux of the Court of Appeal’sdecision centered on Andrade’s amended complaint which was filed “fewer than 65 days after her amended notice to the Agency.” Id.

The Court of Appealreasoned claim preclusion “bars a new lawsuit if the first case had (1) the same cause of action; (2) between the same parties, or parties in privity; and (3) a final judgment on the merits” and noted the doctrine “promotes judicial economy by requiring all claims based on the same cause of action that were or could have been raised to be decided in a single suit.” Id.

Brown argued LaCour, 94 Cal.App.5th 1172 (2023), controls and suggested the Court of Appealfind the Andrade settlement “does not bar her vacation pay or reach the Buster’s defendants in [Brown’s] case because [the] Andrade [plaintiff] filed her second amended complaint only 35 days after submitting her amended presuit notice to the agency.” See Brown, 2025 Cal. App. LEXIS 750at *7-9. The Court of Appeal interpreted Brown’s reliance on LaCour to suggest the plaintiff in Andrade “was never authorized to pursue the additional vacation pay claim and new defendants in her amended complaint” which would necessarily encompass Brown. Id. at *9.

Buster’s contended LaCour is “‘completely inapposite’ and factually distinguishable” given “Andrade’s initial notice letter, initial complaint, amended notice letter, and amended complaint ‘expressly include all of Brown’s alleged Labor Code violations such that they encompass Brown’s entire PAGA claim.’” Buster’s additionally contended “Andrade’s failure to abide by the 65-day waiting period is a technicality” and “not dispositive as to the issue of administrative exhaustion under PAGA.” Id.

The Court of Appealdetermined on the “administrative exhaustion issue, LaCour does not apply” and California’s Supreme Court has described “PAGA’s statutory pre-filing notice requirement as a ‘condition of suit.’” Similarly, the Court of Appealreasoned the purpose of PAGA’s pre-filing notice requirement is to afford “the Agency ‘the opportunity to decide whether to allocate scare resources to an investigation…’” Id. at *11. It explained “[n]othing in the statute’s language or any published case law suggests the 65-day waiting period also applies to amended notices and complaints.” Id. Accordingly, the Court of Appealfound “Andrade’s failure to wait 65 days was a harmless defect” and the “Agency accepted Andrade’s global settlement with Buster’s after it had an opportunity to object.” Id. at *12.

In sum, the Court of Appeal held “Andrade’s settlement fully encompassed and released Brown’s claims as to all Buster’s entities, thus satisfying all elements of claim preclusion” and affirmed the trial court’s decision.

Implications For Employers

Employers facing PAGA litigation can rely on Brown for support that prior settlements have a preclusive effect where, as here, the prior settlement and second lawsuit have overlapping claims.

Brown also supports the proposition that PAGA’s 65-day notice waiting period requirement for filing suit may not apply to amended PAGA notices. In another win for employers, the Court of Appeal found the plaintiff in Brown could not recover for periods after she left the company in 2018 – thereby limiting the scope of PAGA penalties further.

Given the myriad issues employers defend against in PAGA litigation, this decision signals an important strategic consideration in defending overlapping PAGA actions. Employers when faced with multiple PAGA actions must consider the sequencing of PAGA settlements and whether an already settled PAGA action can create a preclusive effect barring a separate PAGA action.

November 23, 2025November 23, 2025 by Gerald L. Maatman, Jr.

Illinois Supreme Court Imposes Stricter Standing Test For “No-Injury” Class Actions Premised On Statutory Violations

By Gerald L. Maatman, Jr., Tyler Zmick, and Hayley Ryan

Duane Morris Takeaways: In Fausett v. Walgreen Co., 2025 IL 131444 (Nov. 20, 2025), the Illinois Supreme Court narrowly construed the private right of action set forth in the federal Fair Credit Reporting Act (FCRA), holding that because the FCRA does not explicitly authorize consumers to sue for violations, the law does not authorize individual lawsuits unless a consumer shows that a violation caused a concrete injury. Thus, at least for FCRA actions, a plaintiff must now allege a “concrete injury” in Illinois state courts similar to what a plaintiff must allege to establish Article III standing in federal courts. This is a significant development, as Illinois courts have not previously required “concrete-injury” allegations for statutory claims under the state’s more liberal standing test.

Fausett is therefore a must-read opinion that represents an obstacle for future plaintiffs pursuing “no-injury” claims premised on the FCRA, in addition to other federal statutes containing similar private rights of action.

Case Background

Plaintiff alleged that Defendant violated the Fair and Accurate Credit Transactions Act (FACTA) – a provision of the FRCA – by printing a receipt containing more than the last five digits of her debit card number. Plaintiff sought statutory damages for the alleged FACTA violation, though she did not claim the violation led to actual harm by, for example, a third party using the receipt to steal her identity.

Plaintiff moved to certify a class of individuals for whom Defendant printed receipts containing more than the last five digits of their payment card numbers. In granting class certification, the trial court rejected Defendant’s argument that Plaintiff had no viable claim due to lack of standing. The trial court reasoned that Illinois courts are not bound by the same jurisdictional restrictions applicable to federal courts and that the Illinois Supreme Court’s decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, established that “a violation of one’s rights afforded by a statute is itself sufficient for standing.” Fausett, 2025 IL 3237846, ¶ 15. The Illinois Appellate Court affirmed the trial court’s class certification order, and Defendant subsequently appealed to the Illinois Supreme Court.

The Illinois Supreme Court’s Decision

The issue before the Illinois Supreme Court was whether standing existed in Illinois courts for a plaintiff alleging a FACTA violation that did not result in actual harm.

The Court began by distinguishing the standing doctrines applied in Illinois state courts vs. federal courts. The Court observed that Illinois courts are not bound by federal standing law and that Illinois standing principles apply to all claims pending in state court – even those premised on federal statutes.

The Court then identified the two different types of standing that exist in Illinois courts, including: (1) common-law standing, which – like Article III – requires an injury in fact to a legally recognized interest; and (2) statutory standing, which requires the fulfillment of statutory conditions to sue for legislatively created relief. See id. ¶ 39 (for statutory standing, the legislature creates a right of action and determines “who shall sue, and the conditions under which the suit may be brought”) (citation omitted). The Court further noted that a statutory violation, without actual harm, can establish statutory standing only where the statute specifically authorizes a private lawsuit for violations.

Turning to Plaintiff’s FACTA lawsuit, the Court determined that Plaintiff’s claim could not invoke statutory standing because the FCRA’s liability provisions “fail to include standing language. In other words, Congress did not expressly define the parties who have the right to sue for the statutory damages established in FCRA.” Id. ¶ 40; see also id. ¶ 44 (“the plain and unambiguous language” of the FCRA “does not state the consumer or an aggrieved person may file the cause of action”). Thus, because the FCRA is “silent as to who may bring the cause of action for damages,” Plaintiff’s FACTA claim “does not implicate statutory standing principles, and thus common-law standing applies to plaintiff’s suit.” Id.

As for common law standing, the Court concluded that Plaintiff’s claim did not satisfy Illinois’s common law standing test, under which an alleged injury, “whether actual or threatened, must be: (1) distinct and palpable; (2) fairly traceable to the defendant’s actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief.” Id. ¶ 39 (quoting Petta v. Christie Business Holdings Co., P.C., 2025 IL 130337, ¶ 18). The injury alleged must also be concrete – meaning that a plaintiff alleging only a purely speculative future injury lacks a sufficient interest to have standing.

The Court held that Plaintiff failed to allege or prove a concrete injury because she conceded that she was unaware of any harm to her credit or identity caused by the alleged FACTA violation, and she could not identify anyone who had even seen her receipts “beyond the cashier, herself, and her attorneys.” See id. ¶ 48. Thus, Plaintiff could only show an increased risk of identity theft – something the Court has found to be insufficient to confer standing for a complaint seeking money damages. Because Plaintiff lacked a viable claim due to lack of standing, the Court held that the trial court abused its discretion in granting Plaintiff’s motion for class certification.

Implications Of The Fausett Decision

Fausett will impact FCRA class actions in a significant manner by precluding plaintiffs from bringing certain “no-injury” class actions in Illinois state courts. Federal courts have regularly dismissed such claims for lack of Article III standing based on the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016).

Fausett now forecloses plaintiffs from refiling the same claims in Illinois state courts, leaving plaintiffs without a venue to prosecute no-injury FCRA claims in Illinois. Importantly, the Fausett decision will likely reach beyond the FCRA context, as other federal consumer-protection statutes contain liability provisions with private-right-of-action language similar to the language found in the FCRA.

November 19, 2025November 19, 2025 by Gerald L. Maatman, Jr.

Duane Morris Class Action Review Cited In Three U.S. Supreme Court Briefs

By Gerald L. Maatman, Jr., Jennifer A. Riley, Ryan T. Garippo, and George J. Schaller

Duane Morris Takeaways: On October 15, 2025, in Eli Lilly & Co., et. al. v. Richards, et al., No. 25-476 (U.S. Oct. 17, 2025), Eli Lilly & Co. filed a Petition For Writ Of Certiorari after a decision by the U.S. Court of Appeals for the Seventh Circuit which created a four-way circuit split as to the proper interpretation of 29 U.S.C. § 216(b). This petition drew briefing from several amici curiae, including the U.S. Chamber of Commerce and the CHRO Association.

Similarly, when the U.S. Court of Appeals for the Ninth Circuit decision widened that circuit split to include five different methodical approaches in Cracker Barrel Old Country Store, Inc. v. Andrew Harrington, et al., No. 25-559 (U.S. Nov. 5, 2025), Cracker Barrel also filed a Petition For A Writ of Certiorari.

Significant for readers of this blog, both petitioners and amici also cited the Duane Morris Class Action Review as the authoritative source on FLSA certification statistics and the widening circuit split regarding when it is appropriate to send notice to would-be plaintiffs, under 29 U.S.C. § 216(b) in a Fair Labor Standards Act (“FLSA”) collective action.

With the submission of our analysis to the U.S. Supreme Court, we are humbled and proud to be cited as the authoritative source in the class action space.

The Briefing In Richards And Harrington

Both Cracker Barrel and Eli Lilly correctly argued in their petitions that “the circuits are split five ways in how to interpret” Section 216(b) and the case law in this area “is in total disarray.” Both petitions ask the U.S. Supreme Court to help organize this “disarray.” As such, a brief guide through these disjointed methodological approaches is included below.

First, there is the familiar and lenient two-step standard in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), which was expressly adopted by the U.S. Court of Appeals for the Second Circuit, Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 515 (2d Cir. 2020), and “acquiesced to . . . without express adoption” by the First, Third, Tenth, and Eleventh Circuits. Kwoka v. Enterprise Rent-A-Car Company of Boston, LLC, 141 F.4th 10, 22 (1st. Cir. 2025); Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 534 (3d Cir. 2012); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1105 (10th Cir. 2001); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)

Under the Lusardi approach, at step one, a plaintiff moves for conditional certification, relying solely on his or her allegations, and not competing evidence submitted by the employer. If the employee’s motion is granted, would-be plaintiffs receive notice of the lawsuit and then have the ability to opt-in as party plaintiffs to the case and participate in discovery. At the close of discovery, the employer can then move to decertify the conditionally certified collective action, and prove the employees are not similarly situated with the benefit of discovery and evidence.

Second, in Campbell v. City of Los Angeles, 903 F.3d 1090, 1114 (9th Cir. 2018),the Ninth Circuit adopted a variation of the Lusardi two-step approach but also required the plaintiff to show he or she is similarly situated to his or her fellow employees in “some material aspect of their litigation” and not just similar in some sort of irrelevant way, but the plaintiff may rely on mere allegations to make that showing.

Third, the Fifth Circuit in Swales v. KLLM Transp. Servs., LLC, 985 F.3d 430, 443 (5th Cir. 2021), rejected Lusardi’s two-step approach outright, and required its district courts to “rigorously enforce” the FLSA’s similarity requirement at the outset of the litigation in a one-step approach. “[T]he district court needs to consider all of the available evidence” at the time the motion is filed and decide whether the plaintiff has “met [his or her] burden of establishing similarity.” Id. at 442-43.

Fourth, the Sixth Circuit in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023), adopted a comparable standard to Swales requiring the employee to show a “strong likelihood” that others are similarly situated to him or her before the district court can send notice, but leaving open the possibility of the employer filing a motion for decertification down the line. Clark, 68 F.4th at 1011.

Fifth, the Seventh Circuit in Richards, et al. v. Eli Lilly & Co, et al., 149 F.4th 901 (7th Cir. 2025), rejected the Lusardi framework but declined to go as far as Clark or Swales. Instead, the Seventh Circuit approach requires “a plaintiff must first make a threshold showing that there is a material factual dispute as to whether the proposed collective is similarly situated” to secure notice and an employer “must be permitted to submit rebuttal evidence” for the court to consider. Richards, 149 F.4th at 913. But, there is not a bright line rule as to whether the court should decide the similarly situated question in a one or two step approach as the analysis is not an “all-or-nothing determination.” Id. at 913-914.

Sixth, as correctly noted by counsel for Cracker Barrel, the U.S. Courts of Appeal for the D.C., Fourth, and Eighth Circuits have not yet opined on the proper interpretive method, leaving their district courts free to choose among the available options.

Duane Morris Class Action Review Citations

It should go without saying that these issues are complicated, and employers are looking to experienced practitioners to help them navigate this procedural morass. For that reason, both petitioners and the amici curiae turned to the Duane Morris Class Action Review, and its authors, as the authoritative source in support of their petitions.

The first citation is found in Eli Lilly’s petition for writ of certiorari, which cites Avalon Zoppo, Circuit Split Widens on Judicial Approach to Sending FLSA Collective Action Notices, Nat. L. J. (Aug. 11, 2025), regarding the proper interpretation of Richards, following the Seventh Circuit’s decision in that case. In that article, Gerald L. Maatman, Jr., Chair of the Duane Morris Class Action Defense Group, stated “[t]he [Seventh Circuit’s] holding is going to reverberate and have a huge impact on wage and hour litigation throughout the United States.”

The second citation can be found in Cracker Barrel’s petition, following the Ninth Circuit’s holding in Harrington, which cites directly to the Duane Morris Class Action Review for varying conditional certification rates under this patchwork quilt of legal standards. Indeed, in the 2024 and 2025 editions of the Duane Morris Class Action Review, our analysis showed that: (1) the federal circuit courts that follow or acquiesce to Lusardi grant conditional certification at rates of 84%; (2) the Ninth Circuit grants conditional certification at rates of approximately 71% under the lenient-plus approach; and (3) the remaining Fifth, Sixth, and Seventh Circuits, with varied stricter standards, granted certification at rates approximating 67%. The petition further noted our finding that only approximately 10% of conditionally certified FLSA collective actions reach the decertification stage.

The third citation is found in the U.S. Chamber of Commerce and the CHRO Association’s amicus brief which relies on the Duane Morris Class Action Review for the proposition that “motions for conditional certification . . . are granted in a large majority of [FLSA] cases.” Looking at the statistics, the amici highlight “[i]n 2024, district courts granted 80% of motions seeking court-ordered notice” with “Plaintiffs enjoy[ing] similar success in past years”

These U.S. Supreme Court practitioners and defense counsel are not alone as others refer to the Duane Morris Class Action Review as “the Bible” on class action litigation. It is also relied on by some of the world’s largest plaintiffs’ firms and federal judges, see, e.g., Laverenz v. Pioneer Metal Finishing, LLC, 746 F. Supp. 3d 602, 614 (E.D. Wis. 2024). The Duane Morris Class Action Review is the “one stop shop” and authoritative source on collective action certification rates, collective action trends and analysis, and the implications, pressures, and contours that parties face when engaged in FLSA collective action litigation.

Implications For Employers

Although the petitioners are still briefing their petitions, it is clear that the myriad approaches adopted by the federal circuit courts are ripe for some clarity from the U.S. Supreme Court, which would hopefully provide a roadmap for district courts to assess collective actions uniformly.

Further, the framework for when and how to send notice under Section 216(b) are not the only issues presented by these petitions. Eli Lilly expressly invited the U.S. Supreme Court to overturn Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165 (1989) and plaintiff-appellee in Harrington would also have the high court decide whether Bristol-Myers Squibb Co. v. Sup. Ct. of Cal., 582 U.S. 255 (2017) applies to collective actions, which we blogged about here.

Because these questions, and many others, remain in flux and unanswered, employers should monitor this blog for updates as it is a trusted source for companies, defense counsel, plaintiffs’ firms, federal judges, and U.S. Supreme Court practitioners alike. We will be following these petitions as they unfold.