Gregory Tsonis – Class Action Defense

June 10, 2026June 10, 2026 by Gerald L. Maatman, Jr.

Seventh Circuit Affirms Summary Judgment For Tortilla Manufacturer El Milagro In Sexual Harassment Suit

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

Duane Morris Takeaways: On May 27, 2026, in Sanchez, v. El Milagro, Inc., 2026 U.S. App. LEXIS 14984 (7th Cir. May 26, 2026), the Seventh Circuit issued an opinion that affirmed a district court’s decision granting summary judgment in favor of tortilla manufacturer El Milagro, Inc. (“El Milagro”) for claims of sexual harassment in the workplace in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Illinois Human Rights Act (“IHRA”).

The opinion fully vindicated the Company’s defenses, and clarifies that a prompt and thorough investigation coupled with appropriate action to bring harassment to an end are crucial to avoid liability under sexual harassment law.

Background

In 2022, Plaintiff Alma Sanchez filed a Class Action Complaint against her employer, El Milagro, Inc. (“El Milagro”), a tortilla manufacturer and distributor of tortilla products, alleging a sexually hostile work environment in violation of the IHRA and, subsequently, Title VII.

Plaintiff alleged she joined El Milagro in July 2019. Plaintiff claimed that in 2020, co-worker Francisco Gutierrez sexually harassed her by “inappropriately touching her three times,” although the Seventh Circuit’s opinion noted that Plaintiff’s version of events changed in numerous ways over time. Id.

According to the subsequent statement to Human Resources that Plaintiff submitted after the third alleged incident, Gutierrez “inappropriately touched [Plaintiff] first in October or November 2019, then in March 2020, and finally in August 2020.” Id. *4-5. Her Complaint, however, alleged that “Gutierrez touched her first in May or June 2020, then in July 2020, and finally in August 2020.” Id. *5.

As to her first alleged incident of harassment, Plaintiff’s Complaint asserted that Gutierrez “intentionally ‘rubbed his genitals’ against her buttocks as he passed her on the production line and then continued to walk away.” Id. In her deposition, however, Plaintiff testified that “she believe[d] Gutierrez purposefully touched her because ‘there were many ways for him to pass through without touching [her],” that he did not “touch her for long because ‘he made it look like he was passing by,’” and when she felt the contact and turned around “[h]e had already passed.” Id. In her later statement to Human Resources, Plaintiff wrote that Gutierrez “said sorry” but at her deposition, she testified that Gutierrez “turned around and stare[d] at me like watching and saying ‘oops.’” Id. *5-6.

Plaintiff alleged she verbally reported this incident two hours later to Supervisor Arturo Brito, which Brito denied. Id. *6. In her HR statement, Plaintiff “stated that although she mentioned this incident to Brito, she did not tell him Gutierrez’s name.” At her deposition, however, Plaintiff claimed that “she ‘specifically told Brito that Mr. Gutierrez had rubbed his genitals on my buttocks’” but, when asked outright, she “agreed that she did not share Gutierrez’s name with [the supervisor] when she reported the first incident.” Id. No Human Resources report was made about this incident at the time.

Plaintiff also asserted Gutierrez “sexually harassed her for the second time in July 2020” and claimed that he “groped her buttock with his hand.” Id. *6-7. Plaintiff contradicted herself about whether and when she reported this incident. In her HR statement, she wrote that she “could not have reported the incident because the factory had been permanently shut down because of the pandemic, but later claimed in the lawsuit that she did report the harassment to Brito the day after it happened. Id. *7. Plaintiff alleged that she informed Brito about this incident, but no complaint about this alleged incident was sent to El Milagro’s Human Resources department. Id.

The third incident occurred on August 29, 2020, and Plaintiff contended that “Gutierrez touched her buttocks for ‘a short time,’ or ‘a few seconds’ while she was stooping down to put down boxes that she was holding.” Id. In her written statement to HR, Plaintiff claimed that “Gutierrez touched her buttocks with one hand” but asserted during the lawsuit that “Gutierrez groped her with both hands when she bent over to put down a box that she was carrying.” Id.

After reporting the third incident to Brito, Plaintiff submitted a written statement to Human Resources describing the three incidents. Gutierrez’s statement claimed he accidentally touched Plaintiff while packing tortillas and apologized. Id. Plaintiff later testified that she “had not seen anyone else experience sexually harassing conduct at any time during her employment at El Milagro.” Id. Plaintiff also alleged subsequent verbal harassment by other coworkers, but Plaintiff did not tell Brito or El Milagro’s HR the names of those individuals. Id. *9.

The district court granted El Milagro summary judgment on Plaintiff’s claims. It also ruled that Plaintiffs’ class action claims could not be certified. Plaintiff appealed the district court’s decision on her individual claim to the Seventh Circuit.

The Seventh Circuit’s Opinion

The Seventh Circuit, in an opinion written by Judge Kenneth F. Ripple, affirmed the district court’s decision granting summary judgment in favor of El Milagro and fully vindicated its position.

As to the controlling legal standard, the Seventh Circuit first concluded that while Title VII and the IHRA do not contain identical language, “both this court and Illinois state courts consistently state that the analytical standards are the same.” Id. *9. Thus, “[t]o constitute actionable sexual harassment, the activity ‘must be sufficiently severe or pervasive to alter the conditions of the [the victim’s] employment and create an abusive working environment.” Id. *10. While noting that “physical acts are considered ‘more severe than harassing comments alone,’” the Court also noted that “physical harassment lies along a continuum just as verbal harassment does.” Id. *12.

Turning to the merits, the Seventh Circuit noted an employer is liable under the IHRA and Title VII “only if it was negligent in controlling working conditions.” To prove such negligence, the Seventh Circuit explained Plaintiff must establish two points: (1) that El Milagro had “notice or knowledge of the harassment,” and (2) that El Milagro “did not take ‘prompt and appropriate corrective action reasonably likely to prevent harassment from recurring.” Id. *16.

Assuming that Plaintiff reported the first two incidents to Brito, as she claimed, the Seventh Circuit concluded that Plaintiff could not establish El Milagro’s knowledge of the first two incidents of alleged harassment. Based on the record evidence, the Court reasoned that “what she told Brito led him to believe that she was complaining of accidental touching that happened because the production lines on which she and Gutierrez worked had close quarters.” Id. at *21. As a result, the Seventh Circuit concluded that “[w]e do not believe that a reasonable jury could conclude from [Plaintiff’s] deposition testimony, or any other evidence in the record related to her reporting of the first two incidents, that she gave Brito ‘enough information to make a reasonable employer think that there was some probability that she was being sexually harassed.’” Id. *20-21.

As to the third incident, all three judges agreed that investigation and corrective measures taken by El Milagro’s Human Resources department were sufficient. The Seventh Circuit noted that “[a]n HR employee interviewed [Plaintiff] and Gutierrez separately,” “HR concluded that the events described by [Plaintiff] could not be substantiated,” and that El Milagro “provided [Plaintiff] with a letter, dated September 16, informing her that the case was closed and that it had told Gutierrez, in a ‘call of attention’ letter, to immediately change his behavior toward her.” Id. *21-22. The Seventh Circuit also determined that “[a]lthough El Milagro did not interview any witnesses, [Plaintiff] did not identify any.” Id. *22.

Thus, the Seventh Circuit concluded that the “prompt investigation” was “the hallmark of a reasonable corrective action” (id.) and that “El Milagro’s investigation shows that it ‘took the harassment seriously and took appropriate steps to bring the harassment to an end.’ . . . [i]t had in place a viable and appropriate mechanism for reporting the misbehavior.” Id. A jury could not reasonably conclude, the Seventh Circuit held, that “El Milagro was negligent in fulfilling its responsibilities in responding to the situation.” Id.

Finally, as to alleged verbal harassment that occurred after HR investigated, the Seventh Circuit concluded that Plaintiff “did not report to anyone the names of the people who made the harassing comments that she overheard after the investigation concluded so El Milagro could not investigate them.” Id.

Accordingly, the Seventh Circuit affirmed the judgment of the district court.

Implications For Employers

The Seventh Circuit’s opinion clarifies what constitutes proper notice in alleged incidents of sexual harassment and reasonable corrective measures taken when an employer is properly on notice, including prompt investigations to bring alleged harassment to an end.

Employers should evaluate their sexual harassment policies and practices to ensure that reporting mechanisms, documentation, and investigation process are sound and that reports of harassment are communicated promptly to those responsible for investigating them. A thorough investigation and quick implementation of reasonable corrective measures can often insulate employers from liability under either Title VII or the IHRA.

May 27, 2026May 27, 2026 by Jennifer A. Riley

The Beard Group’s Class Action Money & Ethics Conference Covers Major Developments And Trends In Class Action Litigation

By Jennifer A. Riley, Greg Tsonis, George J. Schaller, and Ryan T. Garippo

Duane Morris Takeaways: Jennifer A. Riley, Greg Tsonis, George J. Schaller, and Ryan T. Garippo, members of the Duane Morris Class Action Defense Group, recently attended the Beard Group’s Class Action Money & Ethics Conference organized in New York City. The conference, held on May 21, 2026, hosted hundreds of attendees, covered key trends in class action litigation, and honored several attorneys for their accomplishments in the class action industry. Jennifer A. Riley of Duane Morris gave the keynote address, and George J. Schaller and Ryan T. Garippo of Duane Morris received awards for their accomplishments as two of 12 Premier Class Action Lawyers Of Tommorow in the United States.

The Conference

At the Class Action Money & Ethics Conference, the Beard Group, Inc. hosts a gathering of the top class action professionals to discuss the hottest topics in class action and multi-plaintiff litigation, including new filings, pre-trial proceedings, settlements, verdicts, and the latest trends in this area of the law. The Conference featured panelists and attendees who are attorneys on both sides of the bar, judges, as well as other professionals who focus their work on class action litigation.

The Conference features panels that speak on a wide range of topics. These topics included the use of data analytics and artificial intelligence in class action litigation, mass arbitrations, the trends in data breach and consumer protection litigation, environmental class actions, and more.

The State Of The Industry

Jen Riley, Vice Chair of Duane Morris’s Class Action Defense Team, opened the Conference by presenting the ten latest trends in class action and multi-plaintiff litigation in her keynote speech. The presentation is based on the findings from the Duane Morris Class Action Review, which is a “one-of-a-kind” publication, that summarizes class action trends and decisions across substantive areas of law.

As Jen Riley explained, in 2025, class action litigation exploded which led to record-breaking settlement figures by a wide margin. In 2025, the ten largest class action settlements can be aggregated to a total of over $79 billion dollars which were paid from corporate defendants to individuals across the nation. This trend was driven by high class certification rates, high quantities of class action filings, shifts within the substantive claims that plaintiffs are pursuing and several other variables. The net effect of these trends was that the class action mechanism served as an effective tool for the plaintiffs’ bar to redistribute wealth at an unprecedented level.

Jen Riley also discussed the shifting landscape with respect to some of the most cutting-edge defenses to defeating class actions. She discussed the success of corporate defendants in defeating class actions via motions to compel arbitration, and some of the latest case law on arbitrations that is currently being litigated before the U.S. Supreme Court. In addition, she reviewed the ongoing federal appellate circuit split concerning the standards for when to grant conditional certification (if at all) under the Fair Labor Standards Act and the applicability of the personal jurisdiction defense to the claims of individual class and collective action members. Jen Riley, providing the keynote address, is pictured below:

Panels On Class Actions And Related Issues

Following Jen Riley’s keynote address, numerous panels followed on the state of class action litigation across various areas of substantive law. The panels in the morning focused on a wide range of topics. The first panel discussed the use of data analytics in class action litigation, particularly by plaintiffs’ attorneys, to identify potential defendants to sue and then effectively prosecute their clients’ claims after. There were also panelists on securities class actions, which helped explain the role that private plaintiffs’ firms have to play during the Trump administration’s control of the U.S. Securities and Exchange Commission. The morning ended with a discussion of the future of litigation financing and the impact of various state laws on the continued viability of the practice.

The panels in the afternoon focused largely on consumer class actions and again covered many areas of substantive law. The afternoon opened with a lively panel on the current state of mass arbitrations, including a conversation regarding the plaintiffs’ bar’s use of arbitration agreements in their engagement letters, and how it impacts their ability to challenge the viability of arbitration agreements in federal and state courts across the country. There were panels on how the plaintiffs’ bar evaluates claims in data breach cases, as well as the shifting trends in data privacy class actions as a result. These panels were followed by additional discussions on the impact of multi-district litigation, environmental class actions, and a comparative analysis of global class actions which explained the various ways that plaintiffs are seeking to monetize mass torts and other alleged harms outside of Rule 23’s class action mechanism. The afternoon concluded with a panel on the scope of consumer protection class actions, including the cutting-edge theories that plaintiffs are pursuing to advance the law in this space, as well as the challenges in identifying plaintiffs to pursue such claims in light of the Eleventh Circuit’s decision that service payments are per se impermissible in class action settlements.

Premier Class Action Lawyers Of Tommorow Award Ceremony

After the panels concluded, there was a reception which was emceed by the Honorable Kathy King, who is a Justice on the Supreme Court in New York County state court. Justice King gave her concluding remarks on the event and also awarded this year’s Premier Class Action Lawyers Of Tommorow with awards for accomplishments in the class action industry. The award was provided to twelve attorneys, under the age of 40, who are redefining the frontiers of class action litigation through innovative strategies, landmark victories, and unwavering commitment to justice on both sides of the bar.

This year’s award winners included Ryan Garippo and George Schaller, both of Duane Morris, who were honored to accept their awards from Judge King and the Beard Group. George and Ryan are pictured below:

April 27, 2026April 27, 2026 by Gregory Tsonis

Class Action Issues In 2025/2026 – Report From The Perfect Law Global Class Actions and Mass Torts Conference In London

By Gregory Tsonis

Duane Morris Takeaways: Gregory Tsonis, a Partner in the Duane Morris Class Action Defense Group, recently spoke at the Global Class Actions and Mass Torts Conference organized by Perfect Law in London. During the conference on April 22 and 23, 2026, over 200 attendees discussed key issues impacting class action litigation in 2025/2026. As a guest presenter from the United States on employment class actions, Greg spoke on United States class action trends and defense strategies.

The Conference

Perfect Law brings together top practitioners on both sides of the bar, as well as academics and the judiciary, to tackle contemporary issues in complex litigation, focusing on class actions and mass torts. The conference featured several prominent federal judges who handle leading MDL proceedings and class actions, including Judge Robert Dow, Northern District of Illinois (and Counselor to the Chief Justice of the US Supreme Court), Judge Robin L. Rosenberg, Southern District of Florida, and Judge Yvonne Gonzalez Rogers, Northern District of California. In addition, Judge Amy J. St. Eve of the U.S. Court of Appeals for the Seventh Circuit spoke on multiple panels.

The organizers compiled a wide range of knowledge and experience on cutting edge class action topics, including recent trends and emerging issues. The presenters covered the latest developments in class action trends across Canada, the United States, and Europe. They discussed trends and legal developments in consumer, privacy, and employment class actions, as well as the continued growth of mass tort actions targeting various industries.

Trends in Global Mass Torts and Public Nuisance

I had the privilege of speaking on class action and mass tort trends. Our panel addressed a wide variety of cutting-edge class action issues running the gamut from settlements, the important arbitration defense, and litigation funding.

The proliferation of mass tort and class action litigation is largely driven by heightened risks and elevated exposure that are connected to record-breaking settlement numbers. In 2025, settlement numbers reached an unprecedented level in class action litigation. In 2024, settlement numbers broke the $40 billion mark for the third year in a row. In 2025, the cumulative value of the highest ten settlements across all substantive areas of class action litigation surpassed that benchmark and totaled $79 billion. Combined, the top 10 settlement numbers of the past four years in all substantive areas exceeded $238 billion, representing use of the class action mechanism to redistribute wealth at an unprecedented level. Mass tort litigation has recently also somewhat shifted away from areas like the pharmaceutical companies and the opioid crisis to industries like technology companies, for example, on the basis that tech companies knew and disregarded harms from social media.

I was also able to address the effectiveness of the arbitration defense to preclude or limit class action litigation. Arbitration agreements with class action waivers provide the foundation for one of the most potent defenses to class action litigation. While the U.S. Supreme Court has continued to promote arbitration agreements, plaintiffs have continued to attack their enforceability, and courts across the country have continued to apply exceptions in inconsistent and expansive ways. Mass arbitration has also emerged as a way to weaponize arbitration proceedings, with the plaintiffs’ bar seeking to adjudicate hundred or thousands of claims by bypassing Rule 23’s class certification requirements.

Litigation funding by private entities also continues to fuel the prevalence of class action and mass tort litigation. Financial firms are continuing to invest substantial sums into portfolios of class action and mass tort litigation, and disclosure requirements continue to be a source of dispute.

Panel On Thresholds For Class Certification Across Jurisdictions

On the first day of the conference, an interesting panel discussion ensued on class certification standards in various jurisdictions. Panelists spoke to the general requirements under Rule 23(a) – numerosity, commonality, adequacy, and typicality – and the differences between class action requirements in the United States and other countries. In Canada, for example, a sufficiently numerous class can consist of as little as two people, while in the United States 40 individuals will typically be sufficient to satisfy numerosity.

In discussing the Rule 23 standard in the United States, the panel presented to the audience the statistics on class certification presented in the Duane Morris Class Action Review – 2026. In terms of class certification motions, the Plaintiffs bar successfully secured certification in 68% of cases over the past year, a slight increase from the 63% success rate in 2024. In 2025, plaintiffs also maintained more consistent certification rates across substantive areas, from a low of 33% in the data breach area, to highs above 70% in the antitrust, wage & hour, and securities fraud areas. Likewise, courts granted more than 90% of the motions for class certification that they adjudicated in 2025 in the ERISA and WARN areas. Additionally, the panel spoke to the importance of reaching the class certification stage in a case, which in many cases can take three to four years, and that approximately 75% of Rule 23(f) petitions to appeal class certification decisions during the pendency of the case are denied by courts of appeal.

Panel on Class Representative Duties

Another panel of plaintiffs lawyers, defense lawyers, judges, and professors addressed the duties of class representatives in varying jurisdictions. The panelists discussed how in the United States, class representatives are expected to be knowledgeable about the litigation, the claims asserted, and the class nature of the action. The class representatives must individually be adequate and have claims that are typical of the putative class as well. The panelists discussed the ability to compensate class representatives for their participation as class representatives, with all but one circuit in the United States permitting such incentive payments (the Eleventh Circuit does not allow incentive payments). Europe largely does not permit incentive payments to class representatives, with such payments expressly forbidden in the Netherlands.

April 14, 2026April 14, 2026 by Gerald L. Maatman, Jr.

The New Hospitality Class Action Review – 2026 Is Now Available!

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

Duane Morris Takeaway: We’re excited to officially announce the release of the all-new Hospitality Class Action Review – 2026, a new desk reference resource designed to help legal professionals and businesses better understand the evolving landscape of class action law this quickly evolving industry.

As the hospitality industry continues to evolve in a landscape shaped by shifting labor laws, consumer protection regulations, and data privacy concerns, class action litigation has become an increasingly significant area of exposure. This new publication offers a comprehensive, practical guide to understanding and managing these complex legal challenges.

Hotels, restaurants, and travel-related businesses face a growing wave of class actions—ranging from wage and hour disputes to hidden fee allegations and data breach claims. This book breaks down these trends and provides actionable insight into how organizations can proactively mitigate risk and respond effectively when litigation arises. The Duane Morris Class Action Team created this new resource offering clear, practical insights into the rules, trends, and key considerations that define class action practice in the hospitality industry. This is the second book in our new series focusing on industry-specific class action litigation, and dives deep into industry-specific procedures, recent case developments, and strategic considerations.

The Hospitality Class Action Review – 2026 is now available here.

Stay tuned to the Class Action Weekly Wire for more information on this new addition to the Duane Morris Class Action Review series.

March 26, 2026March 26, 2026 by Gerald L. Maatman, Jr.

Illinois Appellate Court Affirms Corporate Officers Who Did Not Knowingly Permit IWPCA Underpayment Violations Are Not Employers

By Gerald L. Maatman, Jr., Gregory Tsonis, and George J. Schaller

Duane Morris Takeaways: On March 17, 2026, in People ex. rel. Ill. DOL v. Quality Therapy & Consultation, Inc., et al., 2026 Ill. App. Unpub. LEXIS 594 (1st Dist. 2026), the Illinois Appellate Court affirmed the circuit court’s decision finding corporate officers were not “employers” as defined in section 2 of the Illinois Wage Payment And Collection Act (“IWPCA”), the corporate officers had not knowingly permitted underpayments, and accordingly, the corporate officers were not liable under Section 13 of the IWPCA. Justice Margaret S. McBride authored the opinion on behalf of the Appellate Court.

The decision in Quality Therapy protects corporate decision-makers from personal and strict liability where those decision-makers do not “knowingly permit” a corporation, or such an employer, to violate provisions of the IWPCA.

Case Background

In 1996, Quality Therapy and Consultation, Inc. was founded by Frances M. Parise and John Parise (collectively “the Parises”). Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594,at *2. Quality Therapy provided occupational therapy, speech therapy, and physical therapy services in Illinois to long-term care facilities. Frances Parise acted as Quality Therapy’s president and secretary whereas John Parise was the chief executive officer, and each owned 50% of Quality Therapy and shared authority for business decisions. Id. at *2-3.

After Quality Therapy incurred substantial legal fees from a 2015 federal investigation into its Medicare billing practices and experienced a slow in payments from a primary client, the State of Illinois, Quality Therapy’s profit margins shifted into the negative. Id. at *3-4. In September 2017, Quality Therapy, as a result of the negative margins, could not meet its payroll obligations and issued a WARN Act notice to its employees, “advising that the business would close and all employment would cease in 60 days.” Id. at *4.

Thereafter Quality Therapy informed staff they would not receive their September wages and Quality Therapy was closing on September 30, 2017. Id. Throughout September, the Illinois Department of Labor (the “Department”) received the first of “93 wage applications from [former] employees that would eventually total $550,496, exclusive of statutory penalties.” See id. at *5.

Quality Therapy relied on a bank line of credit to fund payroll on a timely basis, and after the Parises notified the bank that Quality Therapy was closing, the bank immediately called the corporation’s line of credit and froze all funds on hand. Id. Quality Therapy never regained control of its bank account and was unable to access any of its money to pay its employees.

Circuit Court Case Background

In December 2019, the Department filed a three-count complaint, which was later amended in February 2020, and directed individual counts against Quality Therapy, as well as Frances and John Parise, that each knowingly permitted Quality Therapy’s underpayments of unpaid wages and other compensation. The Department maintained all three defendants met the definition of employer under the IWPCA. Id. at *7.

Quality Therapy had been dissolved and was found in default. The Parises moved for summary judgment on the amended complaint and argued that the Illinois’ Supreme Court decision in Andrews v. Kowa Printing Corp., 217 Ill. 2d 101 (2005), “precluded a corporate officer’s individual liability under section 2 of the Wage Act.” Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594, at *7-8. The Department responded that “[the Parises] each acted directly or indirectly in [Quality Therapy’s] interest, which made them ‘employers’ within the meaning of section 2.” Id. at *8

The circuit court denied summary judgment and then presided over a two-day bench trial focusing on Quality Therapy’s ability to pay. Id. The circuit court entered default judgment against Quality Therapy, but, the circuit court rejected “the Department’s argument that the Parises were ‘employers’” as defined in section 2 of the IWPCA, and found that “only [Quality Therapy] was the wage claimants’ employer under section 2.” Id. at *8. The circuit court also denied the claims against the Parises under section 2 and found “[t]he only proper [IWPCA] claim brought under the pleadings against [the Parises] is grounded in” section 13 of the IWPCA. Id. The circuit court reasoned that Frances and John Parise, as corporate officers of Quality Therapy, had not knowingly permitted the underpayments and were not liable under section 13 since Quality Therapy was incapable of meeting its payroll. Id.

The Department appealed on the grounds that “the circuit court erred in finding that the Parises were not employers with Section 2.” The Department acknowledged its argument on appeal ran contrary to the Illinois Supreme Court’s decision in Andrews, 217 Ill. 2d 101, but the Department contended that the 2011 amendment to section 13 of the IWPCA “impliedly amended section 2 [of the IWPCA] and superseded Andrews.” Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594, at *9.

The Appellate Court Decision

The Appellate Court affirmed the circuit court’s holding that the Parises were not employers within section 2 of the IWPCA. The Appellate Court, applying the Andrews precedent and interpreting “the statutory language,” concluded “that the amendment to section 13 had no effect whatsoever on section 2” of the IWPCA. Id. at *11.

The Appellate Court rejected the Department’s argument that the 2011 amendment to the IWPCA blended sections 2 and 13 such that it “would render anyone who had a decision making role in payment decisions personally liable for unpaid wages and final compensation.” Id. at *9. The Appellate Court explained the two sections contained distinct definitions, standards, and terms, and presumed that “the legislature did not intend, inconvenient, absurd, or unjust consequences.” Id. at *10.

The Department’s appeal focused on the last clause of section 2 stating that “any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee” is deemed an “employer” for purposes of the IWPCA. Id. at *11 (quoting 820 ILCS § 115/2). The Department asserted the last clause of section 2 should be read “in conjunction with section 13.”

At issue was the underlined language, added to section 13 in the 2011 amendment:

“In addition to an individual who is deemed to be an employer pursuant to section 2 of this Act, any officers of a corporation or agents of an employer who knowingly permit such employer to violate the provisions of this Act shall be deemed to be the employers of the employees of the corporation.” 820 ILCS § 115/13.

The Appellate Court disagreed that the 2011 amendment to section 13 “effectively modified section 2 and dramatically changed a corporate decision maker’s potential liability for wages.” Id. at *11-12. The Appellate Court reasoned that the IWPCA imposes liability on “two separate and distinct definitions of ‘employer’” because “[i]f there was no distinction between the liability of the corporation and the individual officer, then there would be no reason to have two separate definitions of what constitutes an ‘employer.’” Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594at *12-13 (citing Elsener v. Brown, 2013 IL App (2d) 1209209 ¶ 66).

The Appellate Court also rejected the Department’s expansive interpretation of section 2 and section 13 as “unpersuasive.” Id. at *13. Notably, the Appellate Court cited the Illinois Supreme Court’s language in Andrews, which acknowledged “the breadth of the language” in section 2 was “confounding” because when read literally, it would “make an ‘employer’ out of every person who possesses even a modicum of authority over another employee, from the CEO to the head of the maintenance staff, as such persons undeniably act ‘directly or indirectly in the interest of an employer in relation to an employee.’” Andrews, 217 Ill 2d. at 107. Accordingly, following the Illinois Supreme Court, the Appellate Court opined that “[a] literal reading [of that clause] would result in absurdity or unjustness in part because of an employer’s strict liability for wages.” Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594at *13.

Various other reasons supported the Appellate Court’s decision. Andrews, the Appellate Court noted, has been consistently applied without “any court or litigant suggesting that the analysis was abrogated by the amendment to section 13 that took effect in 2011.” Id. at *16 (collecting cases following Andrews.) Additionally, the Appellate Court noted that the legislature’s drafted language across both relevant sections of the IWPCA were not constructed with “parallel wording” nor a declaration of an intent to change section 2’s meaning for the phrase “any person or group of persons.” Id. at *18. Following the Department’s interpretation of the IWPCA, the Appellate Court reasoned, would upend “well-established principles of corporate law” and “create personal liability for shareholders, officers, managers, and supervisory employees, regardless of the precision with which corporate formalities are observed, and would remove the fundamental protections afforded by long-standing principles of corporate law.” Id. at *21-22.

Consequently, the Appellate Court found “the amendment to section 13 maintains the framework of the [IWPCA] – it did not alter the general definition set out in section 2 nor did it modify liability under section 13.” Id. at *20.

Finally, the Appellate Court also dismissed the Department’s “new argument on appeal” that it could rely on a self-adopted regulation “which blends sections 2 and 13 based on the Department’s reading of the amendment.” Id. at *22. The Appellate Court found the Department’s interpretation was not well founded and the regulation was “also flawed because it is not based on the new, clear prefatory clause in section 13.” Id. at *26-27.

Accordingly, the Appellate Court affirmed the circuit court’s judgment.

Implications For Employers

Quality Therapy draws a line in the sand delineating when a corporate decisionmaker meets the definition of “employer” under section 2 of the IWPCA. The Appellate Court relied on longstanding Illinois Supreme Court precedent to find the 2011 amendment to section 13 of the IWPCA did not alter the scope of section 2 of the IWPCA.

Employer’s facing claims for violations of the IWPCA must ensure they comply with the payment provisions of the IWPCA. However, protections for corporate-decision makers remain intact, and merely being in a decision-making role with respect to payment decisions is insufficient to establish personal liability for unpaid wages and final compensation under the IWPCA.

Instead, Quality Therapy establishes that only those corporate decision makers who “knowingly permit” an employer to violate provisions of the IWPCA shall be also deemed an “employer of the employees of the corporation” pursuant to section 13 of the IWPCA.

March 11, 2026March 11, 2026 by Gerald L. Maatman, Jr.

Illinois Court Holds “Interested Party” Enforcement Provision Of The Day And Temporary Labor Services Act Unconstitutional

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

Duane Morris Takeaways: In a significant decision issued on March 6, 2026, Judge Neil H. Cohen of the Circuit Court of Cook County, Illinois, held that Section 67 of the Illinois Day and Temporary Labor Services Act (“DTLSA”), 820 ILCS 175/67, is unconstitutional because it improperly authorizes private parties to enforce the statute in a manner that usurps the constitutional authority of the Illinois Attorney General. The ruling arose in Figueroa, et al. v. Visual Pak Holdings, LLC, et al., No. 2025 CH 04411 (Cir. Ct. Cook County Mar. 6, 2026), and can be found here.

The court concluded that the statute’s “interested party” enforcement provision effectively creates a qui tam-style enforcement mechanism without the safeguards that preserve the Attorney General’s control over litigation brought on behalf of the State. Because the statute does not require notice to the Attorney General and gives the Attorney General no authority to intervene, control, dismiss, or settle such cases, the court held that the provision violates the Illinois Constitution. The ruling could significantly affect the growing wave of DTLSA litigation brought by worker advocacy organizations and may reshape how the statute is enforced going forward.

Background On The Day And Temporary Labor Services Act And Figueroa Lawsuit

The Illinois Day and Temporary Labor Services Act, 820 ILCS 175/1 et seq., regulates staffing agencies that provide temporary or day laborers to client companies. The statute imposes obligations on staffing agencies and the client companies that utilize temporary labor. These obligations include registration requirements, disclosure rules governing job assignments, and compliance with wage and safety protections designed to regulate the temporary labor industry.

In recent years, amendments to the statute expanded its scope and enforcement mechanisms, including provisions mandating equal pay to equivalent permanent employees, safety training, recordkeeping and disclosure requirements, and joint compliance obligations between staffing agencies and the companies that receive temporary workers.

Central to the dispute in Figueroa was Section 67 of the statute, which authorizes enforcement actions by so-called “interested parties.” The statute defines an “interested party” broadly as “an organization that monitors or is attentive to compliance with public or worker safety law, wage and hour requirements, or other statutory requirements.” 820 ILCS 175/5. Under Section 67, these organizations may file civil actions after providing notice to the Illinois Department of Labor and certain requirements are met, and can seek injunctive relief to compel compliance with the statute even if the organization itself did not employ the workers and did not suffer a direct injury. Pursuant to Section 67(d) of the DTLSA, an “interested party” that prevails in a civil suit can recover 10% of any statutory penalties awarded, as well as attorneys’ fees and costs.

The Figueroa litigation was brought by temporary workers and the Chicago Workers’ Collaborative (“CWC”), a nonprofit worker advocacy organization, alleging violations of the DTLSA by the defendants. The defendants moved to dismiss CWC’s claims in the complaint, asserting that CWC lacks standing to bring suit because its standing is based Section 67 of the DTLSA, which is unconstitutional. The defendants also moved to dismiss the individual plaintiffs’ claims and challenged venue in Cook County, as CWC is the only entity located in Cook County and the defendants and employee plaintiffs are located in Lake County, Illinois.

Because the challenge implicated the constitutionality of a state statute, the Illinois Attorney General intervened in the case to defend the law.

The Court’s Decision

After first establishing that CWC lacked associational standing that would allow it to bring claims, the court turned to assessing the constitutionality of Section 67, on which CWC’s standing relied.

The court first analyzed whether Section 67 of the DTLSA is a “qui tam” statute. Under a “qui tam” enforcement mechanism, private parties may bring lawsuits on behalf of the government and receive a portion of the penalty recovered. “Qui tam” statutes are not inherently unconstitutional, but typically contain procedural safeguards that ensure the government retains ultimate control over the litigation. Although the Attorney General “argue[d] that section 67 is not a qui tam statute,” the court noted that the Attorney General took the opposite position in another case, Staffing Services Association of Illinois v. Flanagan, Case No. 1:23-cv-16208 (N.D. Ill). Ultimately, because the State, and not the interested party, is the entity with “an actual and substantial interest” in the action, the court had little difficulty concluding that “Section 67 is a qui tam statute.” Id. at 5.

Next, the court turned to whether Section 67 of the DTLSA improperly usurps the power of the Attorney General to represent the state. Under the Illinois Constitution, the Attorney General serves as the State’s chief legal officer and possesses the authority to enforce state law on behalf of the public. While the legislature may create private rights of action, it cannot enact statutes that effectively transfer the State’s enforcement authority to private actors. Qui tam statutes found constitutional, such as the False Claims Act, “provide for control over the litigation by the Attorney General by granting the Attorney General authority to intervene at any time, authority to control the litigation. and the authority to dismiss or settle the litigation at any time regardless of the wishes of the qui tam plaintiff.” Id. at 5.

By contrast, the court concluded, the DTLSA contains none of those safeguards. Section 67 does not require notice to the Attorney General when an interested party files suit, nor does it give the Attorney General authority to intervene, take control of the case, or dismiss or settle the action. The statute therefore allows private organizations to pursue enforcement litigation entirely independent of the State.

The Attorney General argued that such explicit authority over suits was unnecessary in the statutory text of the DTLSA, as the Attorney General Act provides the Attorney General with authority to intervene, initiate, and enforce any proceedings concerning “the payment of wages, the safety of the workplace, and fair employment practices.” Id. at 6 (quoting 15 ILCS 205/6.3(b)). The court, however, noted that the DTLSA does not require an “interested party” to provide the Attorney General with notice that it filed a suit under Section 67, and thus the Attorney General “cannot exercise its authority to represent the State if it has no notice of the filing of suit under Section 67” of the DTLSA. Id. at 6. As a result, the court held, the lack of notice “renders section 67 an unconstitutional usurpation of the Attorney General’s authority[.]” Id. at 6.

Although the failure to provide notice was sufficient to find Section 67 unconstitutional, the court also held that Section 67 was also unconstitutional on the separate grounds that it “does not grant the Attorney General any control over the interested party’s suit.” Id. The court found unpersuasive the argument that the Attorney General Act provides the Attorney General with the right to intervene, reasoning that “[a] right to intervene is not the same as a right to control the litigation, including the right to dismiss that litigation over the objections of the plaintiff. Id. Because the statute allows private actors to enforce public rights without oversight or control by the Attorney General, the court concluded that Section 67 improperly interferes with the Attorney General’s constitutional authority and is therefore unconstitutional.

Because Section 67 was found unconstitutional, the court dismissed CWC’s claims for lack of standing and the case was appropriately transferred to a proper venue in Lake County, which could properly consider the arguments for dismissal of the individual plaintiffs.

Implications For Employers

The Figueroa decision could significantly affect the enforcement landscape under the DTLSA, though it is likely to face appellate review. Employers operating in Illinois should therefore closely monitor further developments as the courts continue to address the scope and enforcement of the statute.

In recent years, worker advocacy organizations have increasingly relied on Section 67 to bring enforcement actions seeking injunctive relief against staffing agencies and the companies that utilize temporary labor. By holding that provision unconstitutional, the decision calls into question the viability of those lawsuits and may substantially limit the ability of advocacy groups to initiate DTLSA litigation. As a result, the ruling may shift enforcement of the statute more squarely toward state regulators, including the Illinois Department of Labor and the Attorney General’s Office. While this could reduce the number of private enforcement actions filed by advocacy organizations, employers should expect that regulatory authorities will continue to scrutinize staffing practices and DTLSA compliance.

Finally, employers should not interpret the ruling as diminishing the importance of DTLSA compliance. Importantly, the decision does not invalidate the DTLSA itself, but strikes only the statute’s “interested party” enforcement mechanism as unconstitutional. The statute’s substantive requirements remain in effect, including the provisions governing wage protections, safety obligations, and responsibilities shared between staffing agencies and client companies. Staffing agencies and employers that utilize temporary labor should continue to review their staffing arrangements and compliance practices carefully.

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

Webinar Replay: Year-End Review Of EEOC Enforcement Litigation & Strategy

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

Duane Morris Takeaway: Thank you to all the loyal blog readers and followers who joined us for our Year-End EEOC Strategy And Litigation Review webinar! In this 30-minute program, Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik and Gregory Tsonis analyzed the latest impact of the dramatic changes at the U.S. Equal Employment Opportunity Commission, including its new strategic priorities and the EEOC lawsuits filed throughout fiscal year 2025, and discussed how heading into FY 2026 with significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative.

If you were unable to attend the webinar, it is now available on our podcast channel. Click to watch below and stay tuned for important EEOC trends and developments throughout the year.

September 30, 2025October 1, 2025 by Gerald L. Maatman, Jr.

Signaling A Slowdown? EEOC’s FY 2025 Lawsuit Filings Reflect A Narrowing Of Priorities After Change In Presidential Administration

By Gerald L. Maatman, Jr., Alex W. Karasik, Jennifer A. Riley, Gregory Tsonis, and George J. Schaller

Duane Morris Takeaways: In FY 2025 (October 1, 2024 to September 30, 2025), the EEOC’s litigation enforcement activity stalled significantly compared to previous years. By the numbers, FY 2025 lawsuit filings ended on the lower end of the spectrum with 94 lawsuits filed compared to the height of filings in FY 2018 (217 lawsuits). The decline in enforcement activity suggests that during President Trump’s second term in office, employers should not expect the EEOC to be as aggressive as past regimes in terms of the volume of government enforcement lawsuits, particularly in terms of systemic litigation.

Though the overall filings totals are lower than previous years, certain geographic regions, types of claims, and key industries remain prime targets of the Commission’s lawsuits. Our analysis of these patterns is set forth below and is offered to arm employers with the EEOC’s FY 2025 litigation scorecard through an evaluation of district office enforcement activity, filings by statute and discrimination basis, and the most impacted industries.

In sum, there is still a bevy of EEOC lawsuits being filed against businesses, but in a more localized and targeted fashion. Employers should continue their legal compliance with all EEOC initiatives.

Lawsuit Filings Based On Month And Year

The EEOC’s fiscal year ends each year on September 30. The final deluge of filings for EEOC-initiated litigation maintained its year-end boost in 2025. This year, in September alone, 35 lawsuits were filed, down from September filings in FY 2024 (50 lawsuits filed) and September filings in FY 2023 (67 lawsuits filed) – but still a significant total, nonetheless. Of the 94 total filings this year, just over one-third of EEOC lawsuits were filed in September, down from FY 2024’s last-minute filing frenzy accounting for half of that year’s filings. The following chart shows the EEOC’s filing pattern over FY 2025:

We track the EEOC’s filing efforts across the entire fiscal year with its beginning in October through the anticipated filing spree in September. Unlike other fiscal years, the EEOC’s filing patterns were consistent in the first half of FY 2025, peaking with 14 lawsuits in January. Filings again slowed down until Summer, where there was a resurgence of another 14 lawsuits in June 2025. Thereafter, lawsuit filings dipped until the “eleventh hour” in September.

Comparing these filings in FY 2025 to previous years, the EEOC filed significantly less lawsuits than in FY 2024 (111) and FY 2023 (144 lawsuits), signaling a trend in decreased EEOC enforcement activity. Though EEOC litigation filings continuously decreased compared to pre-COVID era filing metrics, the EEOC’s presence as a litigation powerhouse persists. The following graph shows the EEOC’s year-over-year fiscal year filings beginning in FY 2017 through FY 2025:

Lawsuit Filings Based On EEOC District Offices

In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most actively filing new cases throughout the EEOC’s fiscal year. Some district offices tend to be more aggressive than others. Some focus on different case filing priorities. The following chart shows the number of lawsuit filings by each of the EEOC district offices.

In FY 2025, Philadelphia and Chicago led the pack in filing the most lawsuits at 11 each, followed by Indianapolis with 8 filings, then Atlanta, Birmingham, Houston, and Phoenix with 7 filings, and Charlotte, New York, and Miami each with 6 filings. St. Louis had 5 filings, Los Angeles and San Francisco had 4 filings, and Dallas had 3 filings. Memphis had the lowest amount with only 2 filings.

Like FY 2024, Philadelphia proved itself as a leader in EEOC enforcement filings. Chicago remained steady with 11 filings, same as FY 2024. St. Louis (2 filings in FY 2024) and Phoenix (4 filings in FY 2024) also experienced increases in filings compared to last year. Other offices comparatively lagged in enforcement activity, Atlanta (11 filings in FY 2024), Indianapolis (9 filings in FY 2024), and Houston (8 filings in FY 2024), showed slight decreases in enforcement activities. Across the board filings generally evened out for each district office compared to FY 2024, but overall, filings fell.

Although filing trends were down for all Districts, the total filings demonstrate the EEOC maintained its consistent litigation strength, across all district offices. Employers with operations in Philadelphia and Chicago should pay extra attention to EEOC charge activity given the aggressiveness of the Commission in those regions.

(Note: Three EEOC press releases from the Washington D.C. Field Office included their lawsuit filings as part of the Philadelphia District Office statistics)

Lawsuit Filings Based On Type Of Discrimination

We also analyze the types of lawsuits the EEOC filed in terms of the statutes and theories of discrimination alleged. This enables us to determine how the EEOC is shifting its strategic priorities.

When considered on a percentage basis, the distribution of cases filed by statute skewed significantly in favor of Title VII cases when comparing FY 2025 to previous fiscal years. Title VII cases once again made up the majority of cases filed, as they constituted 50% of all filings in FY 2025 (decreased from 58% of all filings in FY 2024, significantly down from 68% of all filings FY 2023 and 69% of filings in FY 2022, and decreased compared to 61% of all filings in FY 2021).

Overall, ADA cases also made up the next most significant percentage of the EEOC’s FY 2025 filings – totaling 31.5%. This is an overall decrease in previous years where ADA filings amounted to 42% in FY 2025, 34% in FY 2023, and 37% in FY 2021. Though these filings are marginally higher than FY 2022 where ADA filings on a percentage basis amounted to 29.7% of all filings.

There was also an uptick in ADEA filings, as 9 ADEA cases were filed in FY 2025, whereas 6 age discrimination cases were filed in FY 2024, after 12 age discrimination cases were filed in FY 2023 and 7 age discrimination cases were filed in FY 2022. Like FY 2024, this year the EEOC pursued Pregnant Worker’s Fairness Act cases with 6 filings compared to FY 2024’s 3 filings. In addition, FY 2025 had a slight increase in Pregnancy Discrimination Act cases where 5 cases were filed compared to FY 2024’s 4 filed cases. Notably absent from FY 2025’s filing balance are cases under the Equal Pay Act and Genetic Information Nondiscrimination Act. The following graph shows the number of lawsuits filed according to the statute under which they were filed.

We also collect data on the allegations for which the EEOC bases its litigation filing.

The EEOC’s basis for suit remained the same among its core tenets, with Disability, Sex, and Retaliation claims leading the way. Collectively, these three bases were alleged in 59.4% of FY 2025 EEOC filings. In FY 2024, those same three core tenets also took the top three spots (collectively alleged in 67.6% of FY 2024 EEOC filings). Notably, in FY 2025, only 3 Race or National Origin based lawsuits were filed by the EEOC, or 2.3% of the total lawsuit filings. In FY 2024, 8.9% of all filings included Race claims. The following graph shows a comparison of the filings in FY 2025 to FY 2024 for the allegation basis in filings:

Lawsuits Filings Based On Industry

In monitoring the EEOC’s filings by industry, FY 2025 aligns with prior EEOC-initiated lawsuits in the top two industries compared to FY 2024, demonstrating the Commission’s focus on a few major industries.

In FY 2025, two industries remained in the EEOC’s targets: Hospitality and Healthcare: On a percentage basis, Hospitality (Restaurants / Hotels / Entertainment) comprised 25% of filings, and Healthcare had 21.3% of filings. A key difference in FY 2025 compared to FY 2024 is Manufacturing (15% of FY 2025 filings; 12.1% of FY 2024 filings) overtaking Retail (11.3% of FY 2025 filings; 23.1% of FY 2024 filings) as the next most targeted industry. The staggering drop in enforcement actions against Retailers poses a distinct drop in enforcement actions in this industry. Only one other industry, Transportation & Logistics, entered double digit enforcement activity (with 10%).The remaining industries in FY 2025 did not enter double-digit percentages though Staffing and Construction each experienced EEOC initiated litigation in FY 2025 (8.8%, and 8.8% of filings respectively per industry).

Unlike FY 2024, FY 2025 did not have any actions which involved Property Management industries. Overall, the FY 2025 industry spread aligns with FY 2024, where Hospitality and Healthcare are the most heavily targeted industries. Though Manufacturing and Retail swapped positions in enforcement priority, both still placed in the third and fourth impacted industries. Like FY 2024, the EEOC’s FY 2025 fiscal year again did not advance any industry-based filings in the Automotive, Security, and/or Technology industries.

Like FY 2024, Hospitality and Healthcare employers should continue to monitor their compliance with federal anti-discrimination laws. These industries are regular hotbeds for charges and ultimately lawsuits. No matter the industry, every employer should recognize they are vulnerable to EEOC-initiated litigation as detailed by the below graph.

Looking Ahead To Fiscal Year 2026

Moving into FY 2026, the EEOC’s budget justification includes a $19.618 million decrease from FY 2025. President Trump’s Administration prioritizes a return to the “agency’s true mission.” The reinvigorated EEOC aims to “return to its founding principles and restore evenhanded enforcement of employment civil rights laws on behalf of all Americans.” The EEOC’s mission is guided by the President’s pledge to “restore dignity to the American worker” and is bolstered by the President’s series of executive orders.

The FY 2026 EEOC budget justification signals a transition to “attacking all forms of race discrimination, including rooting out unlawful race discrimination arising from DEI programs, policies, and practices; protecting American workers from unlawful national origin discrimination involving preferences for foreign workers; defending women’s sex-based rights at work; and supporting religious liberty by protecting workers from religious bias and harassment and protecting their rights to religious accommodations at work.” The Commission also intends to continue its efforts in incorporating technological advances, streamlining and improving operational processes, and refining its organizational structure to ensure efficiency and effective EEOC enforcement.

The EEOC also shifted its goals in FY 2025. The EEOC now prioritizes three strategic goals. First, the EEOC will combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities. In achieving this goal, the EEOC will employ broad remedial measures and exercise its enforcement authority fairly, efficiently, and based on the circumstances of the charge or complaint. Second, the EEOC will prevent employment discrimination and advance equal employment opportunities through education and outreach. Namely, the EEOC will increase public awareness of employment discrimination laws, and knowledge of specific rights and responsibilities under these laws, while also using its agencies to advance and resolve EEO issues. Third, the EEOC will strive for organizational excellence through its people, practices, and technology. In so doing, the EEOC intends to achieve a culture of accountability, inclusivity, and accessibility balanced against intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace.

Key Employer Takeaways

In several respects, FY 2025 represented a change in enforcement targets and continued efforts in key discriminatory areas. While total filings decreased, the new administration foreshadows a targeted approach in upcoming EEOC enforcement. This is considerably true where the requested budget decrease reflects a narrower window of enforcement priorities but maintains the EEOC’s hallmark tradition of defending public civil liberties.

Given the President’s second term is just beginning, the EEOC’s FY 2025 data should be taken with a grain of salt. After all, it was a year of transition for the Commission. The Commission’s FY 2025 filings suggest discrimination always stays within the purview of the EEOC’s priorities, but what constitutes “actionable” or “litigation-worthy” discrimination is wavering. We anticipate these figures will grow by next year’s report. Finally, given the volatility of the EEOC’s priorities, it is more crucial than ever for employers to stay abreast of EEOC developments and comply with anti-discrimination laws.

***This article is published in advance of EEOC’s FY 2025, with the data current as of 5:00 p.m. CST. Duane Morris will post the final numbers and statistics through FY 2025, by 5:00 p.m. CST on October 1, 2025.

***For more on the EEOC’s FY 2025, we invite you to attend Duane Morris’ Year-End EEOC Review Webinar on October 22, 2025. To register for the webinar access the link here.

September 24, 2025September 24, 2025 by Gerald L. Maatman, Jr.

You’re Invited: Year-End Review Of EEOC Strategy And Litigation Review Webinar

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

Mark your calendars for our bi-annual program analyzing the latest EEOC developments: Wednesday, October 22, 2025 from 11:00 a.m. to 11:30 a.m. Central. Reserve your virtual seat for the program here.

Join Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik and Gregory Tsonis for a live panel discussion analyzing the latest impact of the dramatic changes at the U.S. Equal Employment Opportunity Commission, including its new strategic priorities and the EEOC lawsuits filed throughout fiscal year 2025. In its annual performance report for FY 2024, the agency touted a record $700 million in monetary recoveries for workers through litigation and administrative avenues. Heading into FY 2026 with significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative. Our virtual program will empower corporate counsel, human resource professionals and business leaders with key insights into the EEOC’s latest enforcement initiatives and provide strategies designed to minimize the risk of drawing the agency’s scrutiny.

Presenters

Gerald L. Maatman Jr.

Jennifer A. Riley

Alex W. Karasik

Gregory Tsonis

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

Illinois Federal Court Allows FLSA Collective Action To Proceed In Misclassification Case

By Gerald L. Maatman, Jr., Gregory Tsonis, and Christian J. Palacios

Duane Morris Takeaways: On August 22, 2025, U.S. District Judge Matthew Kennelley for the Northern District of Illinois ruled that a group of supermarket meat, bakery, and deli managers could maintain their collective action against the grocery chain, Mariano’s, despite the differences in job responsibilities and store locations of collective action members. In the same order, Judge Kennelley denied Plaintiffs’ motion to certify a proposed class pursuant to Rule 23, highlighting the more demanding requirements for class certification. The case, captioned Depyper, et al. v. Roundy’s Supermarkets, Inc. et al., Case No. 20-C-2317 (N.D. Ill. Aug. 22, 2025) and available here, is significant because it is one of the first times a court considers a defendant’s “decertification” motion following the Seventh Circuit Court of Appeals decision in Richards, et al. v. Eli Lilly & Co., Case No. 24-2574, 2025 WL 221850 (7th Cir. Aug. 5, 2025), (“Eli Lilly”), which addressed the standard applicable for conditionally certifying an FLSA collective action. As this decision illustrates, although plaintiffs may face a higher legal bar for sending notice to a purported collective post-Eli Lilly, maintaining the collective after it has been “conditionally certified” is still subject to a much less demanding analysis than under Rule 23.

Background

Mariano’s and its banner store, Roundy’s Supermarkets, Inc. (“Defendant”), a well-known grocery store chain in the state of Illinois, was sued on April 14, 2020, by a former meat manager and bakery manager, alleging violations of the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”), seeking unpaid overtime wages and alleging they were misclassified as exempt under both laws. Two years later, on April 21, 2022, a former deli manager filed a similar lawsuit alleging similar violations on behalf of her and other similarly situated deli managers. Id. The first lawsuit was “conditionally certified” on November 9, 2020, and Defendant stipulated to conditional certification in the second action on June 14, 2022.

Following the close of the lawsuits’ respective notice periods, the first collective action (comprised of meat managers and bakery managers) numbered twenty-eight (28) plaintiffs, while the second collective action (comprised of deli managers and hot foods managers) contained seventy-six (76) plaintiffs. Id. The parties consolidated the actions shortly thereafter to streamline discovery. Id.

After the close of discovery, Plaintiffs moved for “final certification” of the FLSA collective and concurrently moved to certify a IMWL class under Rule 23 comprised of all Mariano’s deli, hot foods, bakery, and/or meat department managers which were paid a weekly salary and classified as exempt, within the statutory period. Id. at 5. In response, Defendant moved to “decertify” both collectives. Id.

The Court’s Ruling

In a lengthy, 39-page opinion, the Court denied Plaintiffs’ motion for class certification under Rule 23 while simultaneously granting Plaintiffs’ motion for collective action certification (thus denying Defendant’s decertification motion).

The Court considered Plaintiffs’ class certification motion first, holding that while Plaintiffs established a common question (i.e. whether Defendant maintained an unofficial policy of misclassifying department managers), they did not establish that common issues predominated over individual issues. Id. at 10-11. As Defendant maintained that it properly classified Plaintiffs as exempt from the FLSA under the Administrative or Executive exemptions, the Court determined that individualized inquiries would be required to establish whether exempt work was the primary duty of an employee. Id. at 14. Thus, even though proving an unofficial policy “will move the plaintiffs’ claims forward,” the factfinder would still have to determine whether that policy resulted in a department manager having non-exempt primary duties. Id. Notably, the Court also credited various declarations provided by Defendant from department managers that indicated a wide range of “supervisory responsibility,” thus requiring further individualized inquiries regarding satisfaction of the discretion and independent judgment necessary to establish the Administrative exemption, further precluding predominance. Id. at 15-16. Finally, the Court also denied Plaintiffs’ fallback argument for “issue-class certification” under Rule 23(c)(4), similarly reasoning that even isolating the alleged misclassification policy as a common issue would not materially advance the litigation, given liability still turned on an individualized analysis of plaintiffs’ primary duties. Id. at 19.

With respect to Plaintiffs’ motion for FLSA collective action certification, the Court’s analysis and conclusion differed markedly. The Court first noted that FLSA collective actions do not have the same requirements as Rule 23 class actions and, unlike Rule 23, nothing in the FLSA required “adequate representation,” establishing predominance, or proving the superiority of proceeding as a collective. Id. at 21. Notably, the Court first analyzed and considered the Seventh Circuit Court of Appeals’ recent decision in Eli Lilly, which revised the standard for granting conditional certification of an FLSA collective, and its consequence on the instant action. As the Court noted, although Eli Lilly provided some guidance on the “notice” stage of an FLSA collective action, once opt-in discovery concluded, Plaintiffs bore the burden of establishing that they were similarity situated at the final certification stage by a preponderance of evidence. Id. at 23. The Court also noted that Eli Lilly was silent on the standard that district courts should apply to determine whether the collective contains “similarly situated” employees. Id. at 23.

Given the lack of guidance from the Seventh Circuit, the Court applied a three-factor test adopted by district courts in Illinois and elsewhere, which considers: “(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns.” Id. at 23.

Applying these factors, the Court determined that plaintiffs met their burden and could maintain both collectives. Specifically, the Court found that the collective members uniformly testified that they were classified as exempt, constrained by upper-level management hierarchy, expected to work 50 hours per week, and often performed the same tasks as hourly employees. Id. at 28. Though Defendant attempted to point to dissimilarities between Plaintiffs’ testimony and the department manager job descriptions, the Court noted that this argument “does not show a difference among the plaintiffs,” concluding that “[t]he fact that the plaintiffs uniformly testified that their job descriptions did not accurately reflect their actual work is a similarity among them, not a difference.” Id. The Court further rejected Defendant’s argument that managers’ job responsibilities varied across locations, noting that the fact that Mariano’s had forty-four (44) locations was not dispositive. Id. at 27. Defendant did not demonstrate how each store was different from the others, the Court opined, further noting that Defendant itself thought store location was “immaterial” when classifying department managers as exempt. Id. at 27-28. Accordingly, the Court certified the twenty-eight (28) collective action of meat and bakery managers and the seventy-six (76) collective action of deli and hot foods managers.

Takeaway for Employers

This decision highlights the relatively lenient standard applicable to FLSA collective actions, as opposed to Rule 23 class actions. Significant variation among job duties, titles, and responsibilities may not be enough to defeat collective action certification, and Employers should formulate an aggressive strategy for obtaining record evidence of substantial dissimilarities to prevail at the decertification stage. The Depyper decision also demonstrates that, while the Seventh Circuit has weighed in on the notice requirement for conditional certification, district courts retain substantial discretion in deciding what standard to apply at the “decertification” stage in assessing whether FLSA collective action members are “similarly situated.” Ultimately, even where employers prevail against Rule 23 class claims, they can still face costly and broad FLSA collective action litigation on wage and hour claims.