The number and scope of class actions in the employment and consumer protection contexts have surged dramatically. In the last few years alone, class and collective actions (and other multi-party lawsuits) at both the federal and state levels in the areas of wage and hour, discrimination, and employee benefits have cost employers hundreds of millions of dollars in judgments and settlements. This figure does not include the negative impact that these actions may have on a company's public image.
Also, companies in numerous industries are increasingly being targeted by class action lawyers under the Telephone Consumer Protection Act (TCPA), which protects consumers from unsolicited auto-dialed and prerecorded phone calls, text messages, and faxed advertisements. Equally troubling for the health care industry, despite a TCPA exemption for health care-related calls, some of the most well-known U.S. pharmacies, health plans, and medical technology companies have been falling victim to TCPA class action lawsuits. Recipients of such unsolicited communications are allowed to sue for damages of $500 (for negligent violations) or $1,500 (for willful violations) for each unlawful call, text, or fax. When these damages are aggregated in a class action lawsuit, a company could face massive financial exposure.
Class Action Defense
Epstein Becker Green attorneys have extensive experience representing companies in a wide range of industries in both federal and state class actions and multi-party litigation. This includes Fair Labor Standards Act (FLSA) collective actions; Rule 23 class actions involving Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA) and other federal and state anti-discrimination laws; and class actions involving the TCPA and/or other consumer protection laws.
A company's first and often best opportunity to successfully defend a class action is to defeat certification of the proposed class. Through thoughtful and comprehensive pre-certification discovery and investigation, along with the development of creative, case-specific strategies, we have successfully opposed class certification for many clients. We also have succeeded in decertifying classes in Title VII, the ADEA, the Americans with Disabilities Act, and comparable state court actions; in FLSA wage and hour collective actions; and in TCPA class actions.
Beyond the proper handling of discovery and other pre-trial litigation, the successful defense of class and collective actions often involves the compilation and analysis of statistical data and the retention of appropriate expert witnesses to interpret and explain the compiled data. Epstein Becker Green attorneys have broad experience in the development, analysis, and presentation of expert testimony, including the use of statistical data.
Because of the potentially significant impact of a class action on a company's reputation, we also assist our clients with developing legally and operationally sound internal and public communications throughout the litigation process.
Class Action Avoidance
In light of the fact that class and collective actions are often high-stakes litigation, we work closely with our clients to develop an effective prevention plan. Although a client cannot insulate itself from ever being sued, it can take steps to maximize its chances for a speedy outcome at minimal cost.
Epstein Becker Green attorneys assist clients in identifying areas of vulnerability and developing practical strategies for minimizing the risk of liability in employment-related class actions, including:
- Developing internal auditing practices to uncover vulnerabilities in such areas as wage and hour policies, as well as the types of practices that might support a claim of "pattern and practice" discrimination
- Advising on legally sound alternatives to current, problematic workplace policies with the goal of meeting, to the greatest extent possible, the company's business needs and objectives, such as proper classification of employees under wage and hour laws and the prevention of overtime issues
- Assisting in federal and state government audits of wage and hour practices and in government investigations of discrimination claims
- Reviewing proposed business transactions and operational changes for potential class action vulnerability, including restructuring, mergers and acquisitions, and layoffs, as well as contemplated actions involving promotions, discipline, and changes in compensation policies
To reduce the threat of consumer litigation or class actions and to protect our clients’ interests, Epstein Becker Green attorneys offer a wide range of services, which include, among other things:
- Counseling clients on all aspects of TCPA compliance
- Reviewing and, if necessary, revising existing marketing and advertising policies and procedures relating to the use of mobile devices, telephones, faxes, and emails when communicating with consumers
- Advising health care clients on the interplay between the TCPA and the Health Insurance Portability and Accountability Act (HIPAA)
- Evaluating insurance policies and forms to maximize coverage for losses that may arise from alleged violations of the TCPA and other consumer protection laws
- Keeping clients informed of new developments under the TCPA, its regulations, and other consumer protection-related issues, laws, and guidelines