Michael Kun Quoted in “How to Defeat Collective Action Certification in FLSA Suits”


Michael S. Kun, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Los Angeles office, was quoted in Law360, in “How to Defeat Collective Action Certification in FLSA Suits,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

Businesses facing Fair Labor Standards Act collective actions can find themselves on the hook for hefty legal bills, even if they win, and potentially steep damage awards if they don’t. But employers can stop these suits in their tracks if they prevent them from proceeding collectively.

In an FLSA collective action, certification is a two-stage process. Workers file for conditional certification early in a case, and if a judge grants the request, they can notify potential collective members of their claims and give them a chance to “opt in” to the suit. Businesses can later move to decertify the collective.

Wage claims brought under state law, however, proceed as class actions under Rule 23 of the Federal Rules of Civil Procedure, which require members of a certified class to affirmatively opt out if they don’t want to be included in the class. Hybrid cases are those that include both class and collective action claims.

A “hotbed” of litigation, nearly 7,700 FLSA cases were filed in 2017, according to federal employment case data released in May by legal analytics firm Lex Machina. Although that number was down from a nine-year high of 9,261 in 2015, the 2017 figure is about the average number of annual FLSA cases filed since 2009, according to the report. …

Beware the ‘Cookie-Cutter’ Approach

A common misstep that management lawyers often make when they defend against class action claims is thinking they can approach different cases the same way, according to Michael Kun, co-chair of Epstein Becker Green’s wage-and-hour practice, who says the most important thing a defense lawyer should do when facing a class suit “is not to take the cookie-cutter approach.”

“One of the biggest mistakes attorneys defending class actions can make is making the assumption that all these cases are the same and that you can just take what you used in the last case and repurpose it,” Kun said, noting that both attorneys and clients may see “tremendous value” and cost savings in cutting-and-pasting briefs that just change the names of the parties or reusing arguments from previous cases.

While Kun noted that there can be significant value in attorneys not repeating legal research that was done in other cases, that’s where reusing old material should end.

Instead, management lawyers should take into account the wide range of variables that change across wage-and-hour suits, including different allegations, varying sets of facts, variances in employers’ operations and different plaintiffs’ counsel and judges.

“We think that those are all things that you need to take into consideration at the very beginning of a case and mapping out a strategy to defeating class certification,” Kun said. “We learned a long time ago that no two class actions are the same.”